REVOLVING CREDIT AGREEMENT
by and among
ICCE, INC., as Borrower,
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
May 16, 1997
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Terms
1.01 Definitions 2
1.02 Accounting Terms 21
1.03 Cross References 21
1.04 Headings and References 21
1.05 Accounting and Financial Determinations 21
1.06 General Provisions Relating to Definitions 22
1.07 Attorneys' Fees 22
1.08 References to Time 22
ARTICLE II The Loans
2.01 Revolving Credit Facility 23
2.02 Payment of Interest 24
2.03 Payment of Principal 25
2.04 Non-Conforming Payments 25
2.05 Bank Account 25
2.06 Notes 25
2.07 Reductions 26
2.08 Conversions and Elections of Subsequent Interest
Periods 26
2.09 Pro Rata Payments 26
2.10 Unused Fee 27
2.11 Deficiency Advances 27
2.12 Use of Proceeds 27
ARTICLE III Change in Circumstances
3.01 Increased Cost and Reduced Return 28
3.02 Limitation on Types of Loans 29
3.03 Illegality 30
3.04 Treatment of Affected Loans 30
3.05 Compensation 30
3.06 Taxes 31
3.07 Replacement Banks 33
ARTICLE IV Security
4.01 Security 34
4.02 Further Assurances 34
ARTICLE V Conditions to Making Loans
5.01 Conditions of Initial Advance and Issuance of
Letters of Credit 35
5.02 Conditions of Loans 36
ARTICLE VI Representations and Warranties
6.01 Representations and Warranties 38
ARTICLE VII Affirmative Covenants
7.01 Financial Reports, Etc 45
7.02 Maintain Properties 46
7.03 Existence, Qualification, Etc 46
7.04 Regulations and Taxes 47
7.05 Insurance 47
7.06 True Books 47
7.07 Pay Indebtedness to Lenders and Perform Other
Covenants 47
7.08 Right of Inspection 47
7.09 Observe all Laws 47
7.10 Officer's Knowledge of Default 47
7.11 Suits or Other Proceedings 48
7.12 Notice of Discharge of Hazardous Material or
Environmental Complaint 48
7.13 Environmental Compliance 48
7.14 Indemnification 48
7.15 Further Assurances 48
7.16 ERISA Requirement 49
7.17 Continued Operations 49
7.18 Use of Proceeds 49
7.19 New Subsidiaries 49
7.20 Acquisition B 50
ARTICLE VIII Negative Covenants
8.01 Consolidated Leverage Ratio 52
8.02 Consolidated Fixed Charge Coverage Ratio 52
8.03 Consolidated Capitalization Ratio 52
8.04 Consolidated Current Ratio 52
8.05 Indebtedness 52
8.06 Transfer of Assets 53
8.07 Investments; Acquisitions 53
8.08 Liens 54
8.09 Dividends or Distributions 54
8.10 Merger or Consolidation 55
8.11 Change in Control 55
8.12 Transactions with Affiliates 55
8.13 ERISA 55
8.14 Dissolution, etc 56
8.15 Rate Hedging Obligations 56
ARTICLE IX Events of Default and Acceleration
9.01 Events of Default 57
9.02 Agent to Act 60
9.03 Cumulative Rights 60
9.04 No Waiver 60
9.05 Allocation of Proceeds 60
ARTICLE X The Agent
10.01 Appointment, Powers and Immunities 62
10.02 Reliance by Agent 62
10.03 Defaults 63
10.04 Rights as Lender 63
10.05 Indemnification 63
10.06 Non-Reliance on Agent and Other Lenders 64
10.07 Resignation of Agent 64
10.08 Fees 64
ARTICLE XI Miscellaneous
11.01 Assignments and Participations 65
11.02 Notices 66
11.03 Right of Setoff; Adjustments 68
11.04 Survival 68
11.05 Expenses 68
11.06 Amendments and Waivers 70
11.07 Counterparts 70
11.08 Waivers by Borrower 70
11.09 Termination 70
11.10 Governing Law 71
11.11 Severability 71
11.12 Entire Agreement 71
11.13 Agreement Controls 71
11.14 Usury Savings Clause 71
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of the 16th day of May, 1997
(the "Agreement"), is made by and among:
ICCE, INC., a Georgia corporation having its principal place of business
in Atlanta, Georgia (the "Borrower"); and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America and
having a principal place of business in Charlotte, North Carolina
("NationsBank") and each other Eligible Assignee which may hereafter execute
and deliver an instrument of assignment with respect to this Agreement pursuant
to Section 11.01 (hereinafter NationsBank and such other lenders may be
referred to individually as a "Lender" or collectively as the "Lenders"); and
NATIONSBANK, NATIONAL ASSOCIATION, in its capacity as agent for the
Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to the
Borrower a revolving credit facility of up to $15,000,000, the proceeds of
which are to be used as provided in Section 2.12 hereof; and
WHEREAS, the Lenders are willing to make such revolving credit facility
available to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquire" or "Acquisition", as applied to a Person, means the
acquiring or acquisition of a controlling interest in such Person by
purchase (including all or substantially all of the assets),
exchange, issuance of stock or other securities, or by merger,
reorganization or other method.
"Acquired Companies" means each of Xxxxx X. Xxxxxx and
Associates, Inc., a Georgia corporation ("Xxxxxx"), DCCA Professional
Temporaries, Inc., a Georgia corporation ("DCCA"), EKT, Inc., a North
Carolina corporation ("EKT"), Infinity Enterprises, Inc., a Maryland
corporation ("Infinity"), and Cama of Tampa, Inc., a Florida
corporation ("Cama").
"Acquisition A" means the Acquisition of Xxxxxx, DCCA, EKT and
Infinity pursuant to the terms of Merger Agreement A.
"Acquisition B" means the Acquisition of Cama pursuant to the
terms of Merger Agreement B.
"Adjusted Consolidated EBITDA" means Consolidated EBITDA;
provided, however, that with respect to any Acquisition which occurs
within the Four-Quarter Period for which the computation thereof is
being made, Consolidated EBITDA shall be adjusted by adding the
lesser of (i) $500,000 or (ii) historical pro forma reductions in
compensation expense that are substantiated by employment contracts;
provided, however, that with respect to an Acquisition which is
accounted for as a "purchase", for the Four-Quarter Period following
the date of such Acquisition, the Consolidated EBITDA shall include
the results of operations of the Person or assets so acquired which
amounts shall be determined on an historical pro forma basis for the
Four-Quarter Period preceding or including the date of such
Acquisition as if such Acquisition had been consummated as a "pooling
of interest", plus to the extent applicable, any adjustments made in
accordance with Securities and Exchange Commission Rule 17 CFR
210.11-02.
"Advance" means a borrowing under the Revolving Credit Facility,
consisting of the aggregate principal amount of a Base Loan or a
Eurodollar Loan, as the case may be.
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with the Borrower; (ii) which beneficially
owns or holds 10% or more of any class of the outstanding voting
stock (or in the case of a Person which is not a corporation, 10% or
more of the equity interest) of the Borrower; or (iii) 10% or more of
any class of the outstanding voting stock of which is beneficially
owned or held by the Borrower, provided, however, at the time the
Borrower registers any security issued by it pursuant to the
Securities Act of 1933, as amended, the figure "10%" used in this
definition shall automatically change to "5%" without further
action. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting stock, by contract or otherwise.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, a fraction, the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which
shall be the Total Revolving Credit Commitment, which Applicable
Commitment Percentage for each Lender as of the Closing Date is as
set forth in Exhibit A; provided that the Applicable Commitment
Percentage of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with
Section 11.01.
"Applicable Lending Office" means, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate
of such Lender) designated for such Type of Loan on the signature
pages hereof or such other office of such Lender (or an affiliate of
such Lender) as such Lender may from time to time specify to the
Agent and the Borrower by written notice in accordance with the terms
hereof as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Margin" means that percent per annum set forth below
which shall be based upon the Consolidated Leverage Ratio for the
Four-Quarter Period most recently ended as specified below:
Tier Consolidated Leverage Ratio Applicable Applicable
Margin for Margin for
Base Loan Eurodollar
Loans
I Less than 1.50 to 1.00 0.00% 1.25%
II Equal to or greater than 1.50 to 1.00 0.00% 1.75%
and less than 2.00 to 1.00
III Equal to or greater than 2.00 to 1.00 0.25% 2.00%
and less than 2.50 to 1.00
IV Equal to or greater than 2.50 to 1.00 0.50% 2.25%
and less than 2.75 to 1.00
V Equal to or greater than 2.75 to 1.00 0.75% 2.50%
and less than 3.00 to 1.00
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change
in the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the Compliance
Certificate furnished to the Agent pursuant to Section 7.01(a)(ii)
and Section 7.01(b)(ii), subject to review and approval of such
computations by the Agent, shall be effective commencing on the date
following the date such Compliance Certificate is received (or, if
earlier, the date such Compliance Certificate was required to be
delivered) until the date following the date on which a new
Compliance Certificate is delivered or is required to be delivered,
whichever shall first occur; provided, however, if the Borrower shall
fail to deliver any such Compliance Certificate within the time
period required by Section 7.01, then the Applicable Margin shall be
Tier V until the appropriate Compliance Certificate is so delivered.
From the Closing Date to the date next following the date the first
Compliance Certificate is received, the Applicable Margin shall be
Tier IV.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance substantially in the form of Exhibit B (with blanks
appropriately filled in) delivered to the Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
Section 11.01.
"Authorized Representative" means any of the President, any Vice
President, the Chief Financial Officer, or the Controller of the
Borrower or any other person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as
an Authorized Representative of the Borrower, as set forth from time
to time in a certificate in the form attached hereto as Exhibit C.
"Base Loan" means any Loan for which the rate of interest is
determined by reference to the Base Rate.
"Base Rate" means, for any day, the rate per annum equal to the
sum of (a) the greater of (i) the Prime Rate for such day or (ii) the
Federal Funds Rate for such day plus 0.5% and (b) the Applicable
Margin for Base Loans. Any change in the Base Rate due to a change
in the Prime Rate or Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds
Rate.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving
Credit Facility in the form attached hereto as Exhibit D.
"Business Day" means, (i) with respect to any Base Loan, any day
which is not a Saturday, Sunday or a day on which banks in the States
of New York and North Carolina are authorized or obligated by law,
executive order or governmental decree to be closed, and (ii) with
respect to any Eurodollar Loan, any day which is a Business Day as
described above, and on which the relevant international financial
markets are open for the transaction of business contemplated by this
Agreement in London, England, New York, New York and Charlotte, North
Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) all
expenditures (whether paid in cash or accrued as liabilities) by the
Borrower or any Subsidiary during such period for items that would be
classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital
Expenditures paid for with proceeds of casualty insurance.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting
Principles as in effect from time to time including Statement No. 13
of the Financial Accounting Standards Board and any successor
thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections 13(d)(3)
and (14(d)(2) of the Exchange Act), other than Persons owning 30% or
more of the Voting Stock of the Borrower on the Closing Date, either
(A) becomes the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of Voting Stock of the
Borrower (or securities convertible into or exchangeable for such
Voting Stock) representing 30% or more of the combined voting power
of all Voting Stock of the Borrower (on a fully diluted basis) or (B)
otherwise has the ability, directly or indirectly, to elect a
majority of the board of directors of the Borrower;
(ii) during any period of up to 24 consecutive months,
commencing on the Closing Date, individuals who at the beginning of
such 24-month period were directors of the Borrower shall cease for
any reason (other than the death, disability or retirement of an
officer of the Borrower that is serving as a director at such time so
long as another officer of the Borrower replaces such Person as a
director) to constitute a majority of the board of directors of the
Borrower;
(iii) any two of Xxxx Xxxxxx Xxxxx, Xxxxx X. Xxxxxx, Xxxxxxx
Xxxx, or Xxxx Xxxxxxxxx shall cease to be executive officers of the
Borrower for any reason (other than their death or disability); or
(iv) any Person or two or more Persons, other than those
Persons listed in clause (iii) hereof, acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result
in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence on the management or policies of
the Borrower. The registration and sale by the Borrower of any
security issued by it pursuant to the Securities Act of 1933, as amended,
shall not constitute a Change in Control.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Agent and the Lender and on which the
conditions set forth in Section 5.01 hereof have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor provision or provisions and any regulations promulgated
thereunder.
"Collateral" means, collectively, all property of the Borrower,
any Subsidiary or any other Person in which the Agent or any Lender
is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Consistent Basis" in reference to the application of Generally
Accepted Accounting Principles means the accounting principles
observed in the period referred to are comparable in all material
respects to those applied in the preparation of the audited financial
statements of the Borrower and its Subsidiaries referred to in
Section 6.01(f)(i) hereof.
"Consolidated Capitalization Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Funded
Indebtedness to (ii) the sum of Consolidated Funded Indebtedness and
Consolidated Shareholders' Equity.
"Consolidated Current Assets" means, as of the date of
computation thereof, cash and all other assets of the Borrower and
its Subsidiaries which are expected to be realized in cash, sold in
the ordinary course of business, or consumed within one year or which
would be classified as a current asset, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Current Liabilities" means all liabilities of the
Borrower and its Subsidiaries which by their terms are payable within
one year (including Indebtedness payable on demand or maturing not
more than one year from the date of computation and the current
portion of Indebtedness having a maturity date in excess of one year)
all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Current Ratio" means, as of the date of
computation thereof, the ratio of Consolidated Current Assets
(determined as at such date) to Consolidated Current Liabilities
(determined as at such date).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii)
state and federal taxes on income (to the extent paid or accrued by
the Borrower and its Subsidiaries), (iv) amortization, and (v)
depreciation all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated EBITDAR" means, with respect to the Borrower and
its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the sum of (i) Consolidated EBITDA plus (ii)
Consolidated Rental Expense.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for the Four-Quarter Period
ending on the date of computation thereof, the ratio of (a)
Consolidated EBITDAR less Capital Expenditures for such period to (b)
Consolidated Fixed Charges.
"Consolidated Fixed Charges" means, with respect to Borrower and
its Subsidiaries, for the Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i)
Consolidated Interest Expense, (ii) income taxes paid or accrued
during such period, (iii) Consolidated Rental Expense, (iv) dividends
and distributions permitted under Section 8.09, and (v) required
principal payments of Consolidated Funded Indebtedness, including,
without duplication, payments required to be made with respect to
Capital Leases all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated Funded Indebtedness" means, as of the date of
computation thereof, Indebtedness for Money Borrowed of the Borrower
and its Subsidiaries and any liability associated with an earn-out
obligation arising in connection with an Acquisition which is
recorded as a liability on the consolidated balance sheet of the
Borrower and its Subsidiaries all as determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis.
"Consolidated Interest Expense" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including, without limitation, fees payable in respect of a Swap
Agreement and letters of credit) payable in connection with the
incurrence of Indebtedness to the extent included in interest
expense, and (iii) the portion of any liabilities incurred in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of Consolidated Funded Indebtedness to
Adjusted Consolidated EBITDA.
"Consolidated Net Income" means, with respect to the Borrower
and its Subsidiaries for the Four-Quarter Period ending on the date
of computation thereof, the gross revenues from operations of the
Borrower and its Subsidiaries less all operating and non-operating
expenses of the Borrower and its Subsidiaries including taxes on
income, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent
Basis; but excluding as income: (i) net gains on the sale, conversion
or other disposition of capital assets, (ii) net gains on the
acquisition, retirement, sale or other disposition of capital stock
and other securities of the Borrower or its Subsidiaries, (iii) net
gains on the collection of proceeds of life insurance policies, (iv)
any write-up of any asset, and (v) any other net gain or credit of an
extraordinary nature as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis.
"Consolidated Rental Expense" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the aggregate amount of all fixed
payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or
surrender of the leased property) payable by the Borrower or any of
its Subsidiaries, as lessee or sublessee under any lease of real or
personal property and shall include any amounts required to be paid
by the Borrower or any of its Subsidiaries (whether or not designated
as rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges.
"Consolidated Shareholders' Equity" means, as of the date of
computation thereof, the consolidated shareholders' equity as
determined in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis (excluding any upward
adjustment after the Closing Date due to revaluation of assets).
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the consolidated
financial statements of such Person in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, as
defined by Statement No. 5 of the Financial Accounting Standards
Board, and any obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other obligation of any
other Person (the "primary obligor") in any manner, whether directly
or indirectly, including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital,
net worth or other balance sheet condition or any income
statement condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or
assets of such Person to secure payment of such
Indebtedness or other obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
with respect to Contingent Obligations, such liabilities shall be
computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the present value of
the amount which can reasonably be expected to become an actual or
matured liability.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan
from one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.08 or Article IV of one Type of Loan
into another Type of Loan.
"Cost of Acquisition" means, as at the date of entering into any
agreement to Acquire any Person, the sum of the following without
duplication: (i) any cash or other property or the face amount of
any debt instrument given as consideration; (ii) any Indebtedness or
liabilities assumed by the Borrower or its Subsidiaries in connection
with such Acquisition, including accounts payable and other current
liabilities and (iii) all amounts paid or payable in respect of
covenants not to compete, consulting agreements and other affiliated
contracts in connection with such Acquisition; provided, however,
that the Cost of Acquisition shall not include the value of the
capital stock of the Borrower to be transferred in connection
therewith.
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event
of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Loan,
until the end of the Interest Period applicable thereto, a rate of
two percent (2%) above the Tier V Eurodollar Rate applicable to such
Loan, and thereafter at a rate of interest per annum which shall be
two percent (2%) above the Tier V Base Rate, (ii) with respect to
Base Loans, at a rate of interest per annum which shall be two
percent (2%) above the Tier V Base Rate and (iii) in any case, the
maximum rate permitted by applicable law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United
States of America;
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a
Lender; and (iii) any other financial institution approved by the
Agent and, unless an Event of Default has occurred and is continuing
at the time any assignment is effected in accordance with Section
11.01, the Borrower, such approval not to be unreasonably withheld or
delayed by the Borrower and such approval to be deemed given by the
Borrower if no objection is received by the assigning Lender and the
Agent from the Borrower within two Business Days after written notice
of such proposed assignment has been provided by the assigning Lender
to the Borrower; provided, however, that if the Borrower would be
subject to increased costs or a tax withholding requirement under
Article III as a result of any assignment to an Eligible Assignee,
the Borrower may withhold consent; provided, further, that neither
the Borrower nor an affiliate of the Borrower shall qualify as an
Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under the laws of
any state of the United States of America or under the laws of any
other nation, payable in the United States of America, expressed to
mature not later than 92 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits issued by a Lender
or certificates of deposit maturing within one year from the date of
issuance thereof and issued by a bank or trust company organized
under the laws of the United States or of any state thereof having
capital surplus and undivided profits aggregating at least
$400,000,000 and being rated A-3 or better by S&P or A or better by
Moody's;
(d) Repurchase Agreements;
(e) Pre-Refunded Municipal Obligations;
(f) shares of mutual funds which invest in obligations
described in paragraphs (a) through (g) above, the shares of which
mutual funds are at all times rated "AAA" by S&P;
(g) asset-backed remarketed certificates of participation
representing a fractional undivided interest in the assets of a
trust, which certificates are rated at least "A-1" by S&P and "P-1"
by Moody's;
(h) tax-exempt or taxable adjustable rate preferred stock
issued by a Person having a rating of its long term unsecured debt of
"A" or better by S&P or "A-3" or better by Moody's; and
(i) at the time the Borrower registers any security issued by
it pursuant to the Securities Act of 1933, as amended, obligations
permitted under an investment policy approved by the Borrower's
directors and the Agent.
"Environmental Laws" means any federal, state or local statute,
law, ordinance, code, rule, regulation, order, decree, permit or
license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without
limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation
and Recovery Act, as amended; the Toxic Substances Control Act, as
amended; the Clean Air Act, as amended; the Clean Water Act, as
amended; together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law.
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date.
"Eurodollar Loan" means a Loan for which the rate of interest is
determined by reference to the Eurodollar Rate.
"Eurodollar Reserve Requirement" means, at any time, the maximum
rate at which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member
banks with respect to (i) any category of liabilities which includes
deposits by reference to which the Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other
assets which include Eurodollar Loans. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change
in the Eurodollar Reserve Percentage.
"Eurodollar Rate" means, for the Interest Period for any
Eurodollar Loan, the rate of interest per annum calculated according
to the following formula:
Eurodollar Interbank Offered Rate Applicable
Rate = 1-Eurodollar Reserve + Margin
Requirement
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 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 (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the Agent (in its individual
capacity) on such day on such transactions as determined by the
Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on January 1 of each
calendar year and ending on December 31 of each calendar year.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarter periods, taken together as one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified
Public Accountants or which have other substantial authoritative
support and are applicable in the circumstances as of the date of a
report, as such principles are from time to time supplemented and
amended.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of
America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether of a state of the
United States, the United States or a foreign governmental entity.
"Guarantors" means the Subsidiaries of the Borrower who are
required to execute and deliver to the Agent a Guaranty Agreement at
the Closing Date or thereafter pursuant to Section 7.19 hereof.
"Guaranty Agreement" means the Guaranty and Suretyship Agreement
of the Guarantors of even date herewith (or, as to Guaranties
delivered pursuant to Section 7.19 hereof, dated as of the date of
delivery thereof) in favor of the Agent, for the benefit of the
Lenders, as the same may be amended, modified or supplemented.
"Hazardous Material" means and includes any pollutant,
contaminant or hazardous, toxic or dangerous waste, substance or
material (including, without limitation petroleum products, asbestos-
containing material and lead), the generation, handling, storage,
disposal, treatment, release, discharge or emission of which is
subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property, all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary
course of business), all Contingent Obligations, all letters of
credit, all Rate Hedging Obligations and other items which in
accordance with Generally Accepted Accounting Principles is
classified as a liability on a balance sheet other than accrued
expenses and accrued taxes; but excluding all accounts payable in the
ordinary course of business so long as payment therefor is due within
one year; provided that in no event shall the term Indebtedness
include partners' capital, surplus and retained earnings, minority
interest in Persons, lease obligations (other than pursuant to
Capital Leases), reserves for current and deferred income taxes and
investment credits, other deferred credits and reserves, and deferred
compensation obligations.
"Indebtedness for Money Borrowed" means all indebtedness in
respect of money borrowed, including without limitation all Capital
Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond or similar written obligation
for the payment of money (including, but not limited to, conditional
sales or similar title retention agreements).
"Interbank Offered Rate" means, with respect to any Eurodollar
Loan, for the Interest Period applicable thereto, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the term "Interbank
Offered Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary,
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"Interest Period" for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or Converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at
the Borrower's option, on the date one, two, three or six months
thereafter as notified to the Agent by the Authorized Representative
three (3) Business Days prior to the beginning of such Interest
Period; provided, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest
Period, the Loan for which such Interest Period was to be
determined shall be deemed to be a Base Loan as of the
first day thereof;
(ii) if an Interest Period for a Eurodollar Loan
would end on a day which is not a Business Day such
Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which
case such Interest Period shall end on the next preceding
Business Day);
(iii) 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;
(iv) no Interest Period shall extend past the
Revolving Credit Termination Date; and
(v) on any day there shall not be in effect more
than five (5) Interest Periods.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Loan or
to Convert a Loan or Loans of any Type hereunder, as such election or
conversion shall be otherwise permitted herein. Any Interest Rate
Selection Notice shall be binding on and irrevocable by the Borrower
and in the form attached hereto as Exhibit E and incorporated herein
by reference.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute
or contract, and including but not limited to the lien or security
interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. For the purposes of this
Agreement, the Borrower and its Subsidiaries shall be deemed to be
the owners of any property which any of them have acquired or hold
subject to a conditional sale agreement, financing lease, or other
arrangement pursuant to which title to the property has been retained
by or vested in some other Person for security purposes.
"Loan" or "Loans" means any borrowing under the Revolving Credit
Facility.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Security Instruments and all other instruments and
documents heretofore or hereafter executed or delivered to and in
favor of the Agent for the benefit of the Lenders in connection with
the Loans made and transactions contemplated under this Agreement, as
the same may be amended, modified or supplemented from the time to
time.
"Loan Parties" means the Borrower and the Guarantors.
"Material Adverse Effect" means a material adverse effect on (i)
the business, properties, operations or condition, financial or
otherwise, of the Borrower or any of its Subsidiaries taken as a
whole, (ii) the ability of any Loan Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance
with the terms thereof, or (iii) the rights, powers, and remedies of
the Agent or any Lender under any Loan Document or the validity,
legality or enforceability thereof (including for purposes of clauses
(ii) and (iii) the imposition of burdensome conditions thereon).
"Merger Agreement A" means the Agreement and Plan of
Reorganization dated as of April 16, 1997 by and among the Borrower,
Xxxxxx, DCCA, EKT, Infinity and the other parties thereto.
"Merger Agreement B" means the Agreement and Plan of
Reorganization dated as of April 27, 1997 by and among the Borrower,
Cama and the other parties thereto.
"Merger Agreements" means, collectively, Merger Agreement A and
Merger Agreement B.
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation.
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is also a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"Notes" means collectively, the promissory notes of the Borrower
evidencing Loans executed and delivered to the Lenders as provided in
Section 2.06 hereof substantially in the form attached hereto as
Exhibit F, with appropriate insertions as to amounts, dates and names
of Lenders.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) all liabilities
of Borrower to the Lenders which arise under a Swap Agreement, and
(iii) the payment and performance of all other obligations,
liabilities and Indebtedness of the Borrower to the Lenders
hereunder, under any one or more of the other Loan Documents or with
respect to the Loans.
"Outstanding" means, as of any date of determination, the
aggregate principal amount of all Loans then outstanding and all
interest accrued thereon.
"Permitted Liens" means:
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date
hereof and as set forth in Schedule 6.01(g);
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP
and which liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
or created in the ordinary course of business and in existence less
than 90 days from the date of creation thereof for amounts note yet
due or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP and which Liens are not yet enforceable against
other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure
the performance of tenders, bids, leases, contracts (other than for
the repayment of Indebtedness) statutory obligations and other
similar obligations or arising as a result of progress payments under
government contracts;
(e) any Lien existing on any properties of any corporation at
the time it becomes a Subsidiary of the Borrower pursuant to Section
7.19, or existing prior to the time of Acquisition upon any
properties acquired by the Borrower or any Subsidiary as permitted
herein, whether or not assumed by the Borrower or such Subsidiary;
(f) pledges or deposits for the purpose of securing a stay or
discharge in the course of any legal proceeding arising in the course
of ordinary business and which could not reasonably be expected to
have a Material Adverse Effect;
(g) Liens consisting of encumbrances in the nature of zoning
restrictions, easements, rights and restrictions of record on the use
of real property on the date of Acquisition thereof which do not
materially detract from the value of such property or impair the use
thereof;
(h) any Lien in favor of the United States of America or any
department or agency thereof, or in favor of any state government or
political subdivision thereof, or in favor of a prime contractor
under a government contract of the United States, or of any state
government or any political subdivision thereof, and, in each case,
resulting from acceptance of partial, progress, advance or other
payments in the ordinary course of business under government
contracts of the United States, or of any state government or any
political subdivision thereof, or subcontracts thereunder;
(i) Liens securing Indebtedness permitted under Section 8.05
hereof; and
(j) any Lien renewing, extending, refinancing or refunding any
Lien permitted by clauses (a) through (i) above; provided, however,
that the principal amount secured is not increased, the maturity is
not accelerated, and the Lien is not extended to any other
properties.
"Person" means an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, association,
joint venture or a government or agency or political subdivision
thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Stock Pledge Agreement dated
as of the date hereof between the Borrower and the Agent for the
benefit of the Agent and the Lenders and (ii) any additional Stock
Pledge Agreement delivered to the Agent pursuant to Section 7.19 as
hereafter amended, supplemented or replaced from time to time.
"Pledged Stock" has the meaning given to such term in the Pledge
Agreement.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably
called for redemption and advance refunded through the deposit in
escrow of Government Securities or other debt securities which are
(i) not callable at the option of the issuer thereof prior to
maturity, (ii) irrevocably pledged solely to the payment of all
principal and interest on such obligations as the same becomes due
and (iii) in a principal amount and bear such rate or rates of
interest as shall be sufficient to pay in full all principal of,
interest, and premium, if any, on such obligations as the same
becomes due as verified by a nationally recognized firm of certified
public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may
not be the lowest rate of interest charged by NationsBank to its
customers.
"Principal Office" means the office of the Agent presently
located at 0000 Xxxxxxxxx Xxxxx, XX0-000-00-00, Xxxxxxxx, Xxxxxxxx
00000 Attention:Xx. Xxxxxxx Xxxx, or such other office and address as
the Agent may from time to time designate in writing.
"Rate Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor),
under (a) any and all agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such
party's assets, liabilities or exchange transactions, including, but
not limited to, dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap or collar protection agreements, forward rate currency or
interest rate options, puts, warrants and those commonly known as
interest rate "swap" agreements; and (b) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the
foregoing.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Repurchase Agreement" means a repurchase agreement entered into
with any financial institution whose debt obligations or commercial
paper are rated "A" by either of S&P or Moody's or "A-1" by S&P or
"P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51%
of the aggregate Credit Exposures of all the Lenders on such date.
For purposes of the preceding sentence, the amount of the "Credit
Exposure" of each Lender shall be equal at all times (a) other than
following the occurrence and during the continuance of an Event of
Default, to its Revolving Credit Commitment, and (b) following the
occurrence and during the continuance of an Event of Default, to the
aggregate principal amount of the Loans owing to such Lender plus the
aggregate unutilized amounts of such Lender's Revolving Credit
Commitment.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Advances to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage
of the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of up to the Total Revolving Credit
Commitment.
"Revolving Credit Termination Date" means (i) May 31, 2000 or
(ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.01 upon the occurrence of an Event of Default,
or (iii) such date as the Borrower may voluntarily permanently
terminate the Revolving Credit Facility by payment in full of all
Obligations.
"S&P" means Standard & Poor's, a division of XxXxxx-Xxxx
Companies;
"Security Agreement" means, collectively (or individually as the
context may indicate) (i) the Security Agreement dated as of the date
hereof by the Borrower to the Agent, and (ii) any additional Security
Agreement delivered to the Agent pursuant to Section 7.19, as
hereafter modified, amended or supplemented from time to time.
"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement and all other agreements,
instruments and other documents, whether now existing or hereafter in
effect, pursuant to which the Borrower or any Subsidiary shall grant
or convey to the Agent or the Lenders a Lien in property as security
for all or any portion of the Obligations, as any of them may be
amended, modified or supplemented from time to time.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets is in excess of the
total amount of its liabilities, including, without
limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Subsidiary" means any corporation or other entity in which more
than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between the Borrower and a
Lender, on terms mutually acceptable to such Borrower and such
Lender, which agreements create Rate Hedging Obligations.
"Total Revolving Credit Commitment" means (i) from the Closing
Date through May 31, 1999 a principal amount equal to $15,000,000,
and (ii) after May 31, 1999, if Consolidated EBITDA for the Fiscal
Year ended December 31, 1998 does not exceed $6,000,000, a principal
amount of $12,000,000 unless the Required Lenders shall have elected
otherwise, as reduced from time to time in accordance with
Section 2.7.
"Type" shall mean any type of Loan (i.e., a Base Loan or
Eurodollar Loan).
"Unused Fee" means that percent per annum set forth below, which
shall be based upon the Consolidated Leverage Ratio for the Four-
Quarter Period most recently ended as set forth below:
Tier Consolidated Leverage Ratio Unused Fee
I Less than 2.00 to 1.00 0.250%
II Equal to or greater than 2.00 to 1.00 0.375%
and less than 3.00 to 1.00
The Unused Fee shall be established at the end of each fiscal quarter
of the Borrower (the "Determination Date"). Any change in the Unused
Fee following each Determination Date shall be determined based upon
the computations set forth in the Compliance Certificate furnished to
the Agent pursuant to Section 7.01(a)(ii) and Section 7.01(b)(ii),
subject to review and approval of such computations by the Agent and
shall be effective commencing on the date following the date such
Compliance Certificate is received (or, ir earlier, the date such
certificate was required to be delivered) until the date following
the date on which a new Compliance Certificate is delivered or is
required to be delivered, whichever shall first occur; provided,
however, if the Borrower shall fail to deliver any such Compliance
Certificate within the time period required by Section 7.01, then the
Unused Fee shall be Tier II. From the Closing Date to the date next
following the date the first Compliance Certificate is received, the
Unused Fee shall be Tier II.
1.02 Accounting Terms. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
1.03 Cross References. Unless otherwise specified, references in this
Agreement and in each Loan Document to any Article or Section are references to
such Article or Section of this Agreement or such Loan Document, as the case
may be, and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Section, Article
or definition.
1.04 Headings and References. The headings of the Articles and Sections
of this Agreement are inserted for convenience of reference only and are not
intended to be a part of, or to affect the meaning or interpretation of this
Agreement. Words such as "hereof", "hereunder", "herein" and words of similar
import shall refer to this Agreement in its entirety and not to any particular
Section or provisions hereof, unless so expressly specified. As used herein,
the singular shall include the plural, and the masculine shall include the
feminine or a neutral gender, and vice versa, whenever the context requires.
1.05 Accounting and Financial Determinations. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable, be made in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis except insofar as:
(a) the Borrower shall have elected (with the concurrence of
its independent public accountant and upon prior written notification
to the Lenders) to adopt more recently promulgated Generally Accepted
Accounting Principles (which election shall continue to be effective
for subsequent years); and
(b) the Agent and the Required Lenders shall have consented to
such election (it being understood that such consent may be
conditioned upon the implementation of such changes to Section 7.01
as appropriate to reflect such adoption of more recently promulgated
Generally Accepted Accounting Principles and it being further
understood that such consent shall be deemed to have been given upon
the implementation of such changes).
Upon a change in Generally Accepted Accounting Principles which becomes
effective after the Closing Date which would have a material effect on the
Company's consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of the
covenants contained in Article VIII hereof and the determination of the
Applicable Margin and the Unused Fee, such change shall not be given effect for
purposes hereof until sixty (60) days from the otherwise effective date of such
change. Prior to such effectiveness the Agent, the Lenders and the Borrower
shall in good faith negotiate to amend the pertinent provisions of this
Agreement to account for such change to the extent appropriate to effect the
substance thereof as of the Closing Date. If such an amendment is not entered
into with respect to any such change, such change shall not be given effect for
purposes hereof.
1.06 General Provisions Relating to Definitions. Terms for which meanings
are defined in this Agreement shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's successors and assigns. References to any
instrument defined in this Agreement refer to such instrument as originally
executed or, if subsequently varied, replaced or supplemented from time to
time, as so varied, replaced or supplemented and in effect at the relevant time
of reference thereto.
1.07 Attorneys' Fees. Whenever any provision in this Agreement or any of
the other Loan Documents refers to the obligation of the Borrower or any
Guarantor to reimburse the Agent or any Lender for attorneys' fees incurred by
such Person, the Borrower and any Guarantor shall only be required to
reimburse such Persons for the reasonable and actual attorney's fees incurred
and shall not be responsible for any attorneys' fees imposed by statute based
upon any percentage of outstanding indebtedness.
1.08 References to Time. Unless otherwise indicated, all references to
any time in this Agreement or any of the Loan Documents shall be deemed
references to Charlotte, North Carolina time.
ARTICLE II
The Loans
2.01 Revolving Credit Facility
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender agrees to make Advances to the Borrower, from
time to time from the Closing Date until the Revolving Credit
Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower under the Revolving Credit Facility on any
day determined by its Applicable Commitment Percentage of the Total
Revolving Credit Commitment up to but not exceeding the Revolving
Credit Commitment of such Lender, provided, however, that the Lenders
will not be required and shall have no obligation to make any Advance
(i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if the Agent (in accordance with the terms of this
Agreement) has accelerated the maturity of the Notes as a result of
an Event of Default; provided further, however, that immediately
after giving effect to each Advance, the principal amount of
Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits, the Borrower may borrow, repay and reborrow
hereunder, on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit
Termination Date; provided, however, that (x) no Eurodollar Loan
shall be made which has an Interest Period that extends beyond the
Revolving Credit Termination Date and (y) each Eurodollar Loan may,
subject to the provisions of Section 2.08, be repaid only on the last
day of the Interest Period with respect thereto unless such payment
is accompanied by the additional payment, if any, required by Section
3.05.
(b) Amounts. The aggregate unpaid principal amount of the
Outstandings shall not exceed at any time, an amount equal to the
Total Revolving Credit Commitment. Each Loan hereunder and each
Conversion under Section 2.08 shall be in an amount of at least
$250,000 or such greater amount which is an integral multiple of
$50,000.
(c) Advances. (i) An Authorized Representative shall give the
Agent (A) at least three (3) Business Days' irrevocable written
notice by telefacsimile transmission of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with appropriate
insertions, effective upon receipt, of each Loan that is a Eurodollar
Loan (whether representing an additional borrowing hereunder or the
Conversion of borrowing hereunder from Base Loans to Eurodollar Loans
or the Continuation of a Eurodollar Loan for an additional Interest
Period) prior to 10:30 A.M. Charlotte, North Carolina time and (B)
irrevocable written notice by telefacsimile transmission of a
Borrowing Notice or Interest Rate Selection Notice (as applicable)
with appropriate insertions, effective upon receipt, of each Loan
that is a Base Loan (whether representing an additional borrowing
hereunder or the Conversion of borrowing hereunder from Eurodollar
Loans to Base Loans) prior to 10:30 A.M. Charlotte, North Carolina
time on the day of such proposed Loan. Each such notice shall
specify the amount of the borrowing, the Type (Base or Eurodollar),
the date of borrowing and, if a Eurodollar Loan, the Interest Period
to be used in the computation of interest. Notice of receipt of
such Borrowing Notice or Interest Rate Selection Notice, as the case
may be, together with the amount of each Lender's portion of an
Advance requested thereunder, shall be provided by the Agent to each
Lender by telefacsimile transmission with reasonable promptness, but
(provided the Agent shall have received such notice by 10:30 A.M.)
not later than 1:00 P.M. on the same day as the Agent's receipt of
such notice.
(ii) Not later than 2:00 P.M. Charlotte, North Carolina time on
the date specified for each borrowing under this Section 2.01, each
Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Advance or Advances to be made
by it on such day available by wire transfer to the Agent in the
amount of its pro rata share, determined according to such Lender's
Applicable Commitment Percentage of the Loan or Loans to be made on
such day. Such wire transfer shall be directed to the Agent at the
Principal Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to a
demand deposit account which may be maintained at one or more offices
of the Agent or an agent of the Agent or as shall be directed in the
applicable Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Agent.
(iii) The Borrower shall have the option to elect the duration
of the initial and any subsequent Interest Periods and to Convert the
Loans in accordance with Section 2.08. Eurodollar Loans and Base
Loans may be outstanding at the same time, provided, however, there
shall not be outstanding at any one time Eurodollar Loans having more
than five (5) different Interest Periods. If the Agent does not
receive a Borrowing Notice or an Interest Rate Selection Notice
giving notice of election of the duration of an Interest Period or of
Conversion of any Loan to or Continuation of a Loan as a Eurodollar
Loan by the time prescribed by Section 2.01(c) or 2.08, the Borrower
shall be deemed to have elected to Convert such Loan to (or Continue
such Loan as) a Base Loan until the Borrower notifies the Agent in
accordance with Section 2.08.
2.02 Payment of Interest. (a) The Borrower shall pay interest to the
Agent at the Principal Office for the account of each Lender on the outstanding
and unpaid principal amount of each Loan made by such Lender for the period
commencing on the date of such Loan until such Loan shall be due at the
Eurodollar Rate or the Base Rate, as elected or deemed elected by the Borrower
or otherwise applicable to such Loan as herein provided, provided, however,
that if any amount shall not be paid when due (at maturity, by acceleration or
otherwise), all amounts outstanding hereunder shall bear interest thereafter at
the Default Rate from the date such amount was due and payable until the date
such amount is paid in full.
(b) Interest on each Loan shall be computed on the basis of a year of 360
days and calculated for the actual number of days elapsed. Interest on each
Loan shall be paid (i) quarterly in arrears on the last Business Day of each
March, June, September and December, commencing June 30, 1997, on each Base
Loan, (ii) on the last day of the applicable Interest Period for each
Eurodollar Loan and, if any Interest Period extends for more than three
months, at intervals of three months after the first day of the Interest Period
in respect of the related Eurodollar Loan and (iii) upon payment in full of the
principal amount of the Loan at the Revolving Credit Termination Date.
2.03 Payment of Principal. The principal amount of the Outstandings shall
be due and payable to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date, or earlier as herein expressly provided.
The principal amount of Eurodollar Loans may only be prepaid at the end of the
applicable Interest Period, unless the Borrower shall pay to the Agent for the
account of the Lenders the amount, if any, required under Section 3.05. The
Borrower shall furnish the Agent written notice of its intention to make a
principal payment prior to 11:00 A.M. Charlotte, North Carolina time on the
date of such payment. All payments of principal on Loans shall be in the
amount of $250,000 or such greater amount which is an integral multiple of
$50,000.
2.04 Non-Conforming Payments. (a) Each payment of principal (including
any prepayment) and payment of interest and fees, and any other amount required
to be paid to the Lenders with respect to the Loans, shall be made to the Agent
at the Principal Office, for the account of each Lender, in Dollars and in
immediately available funds before 12:30 P.M. Charlotte, North Carolina time on
the date such payment is due. The Agent may, but shall not be obligated to,
debit the amount of any such payment which is not made by such time to any
ordinary deposit account, if any, of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the Borrower
hereunder that is not made both in Dollars and in immediately available funds
and prior to 12:30 P.M. Charlotte, North Carolina time on the date such payment
is due to be a non-conforming payment. Any such payment shall not be deemed to
be received by the Agent until the first Business Day on which such funds were
available prior to 12:30 P.M. Charlotte, North Carolina time. Any non-
conforming payment may constitute or become a Default or Event of Default.
Interest shall continue to accrue on any principal as to which a non-conforming
payment is made until the first Business Day on which such funds were available
prior to 12:30 P.M. Charlotte, North Carolina time at the Default Rate from the
date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise under
clause (ii) of the definition of "Interest Period"; provided that interest
shall continue to accrue during the period of any such extension and provided
further, that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
2.05 Bank Account. The Borrower shall continuously maintain an account
with the Agent for the purposes herein contemplated.
2.06 Notes. Loans made by each Lender, shall be evidenced by, and be
repayable with interest in accordance with the terms of, the Note payable to
the order of such Lender in the amount of its Applicable Commitment Percentage
of the Total Revolving Credit Commitment, which Note shall be dated the Closing
Date or such later date pursuant to an Assignment and Acceptance and shall be
duly completed, executed and delivered by each Borrower.
2.07 Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than two (2) Business Days'
written notice to the Agent to reduce the Total Revolving Credit Commitment.
Each such reduction shall be in the aggregate amount of $1,000,000 or such
greater amount which is in an integral multiple of $500,000, or the entire
remaining Total Revolving Credit Commitment. No such reduction shall result in
the payment of any Eurodollar Loan other than on the last day of the Interest
Period of such Loan unless such prepayment is accompanied by amounts due, if
any, under Section 3.05. Each reduction of the Total Revolving Credit
Commitment shall be accompanied by payment of the Loans to the extent that the
Outstandings exceed the Total Revolving Credit Commitment, after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid.
2.08 Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Article III hereof, the
Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before
10:30 A.M. Charlotte, North Carolina time on any Business Day,
Convert all or a part of Eurodollar Loans to Base Loans on the last
day of the Interest Period for such Eurodollar Loans; and
(b) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before
10:30 A.M. three (3) Business Days' prior to the date of such
election or Conversion:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Loans to begin on the last day of the
then current Interest Period for such Eurodollar Loans; and
(ii) Convert Base Loans to Eurodollar Loans on any
Business Day.
Each election and Conversion pursuant to this Section 2.08 shall be
subject to the limitations on Eurodollar Loans set forth in the definition of
"Interest Period" herein and in Section 2.01 and Article III. The Agent shall
give written notice to each Lender of such notice of election or Conversion
prior to 2:00 P.M. on the day such notice of election or Conversion is
received. All such Continuations or Conversions of Loans shall be effected pro
rata based on the Applicable Commitment Percentages of the Lenders.
2.09 Pro Rata Payments. Except as otherwise provided herein, (a) each
payment and prepayment on account of the principal of and interest on the Loans
and the fees described in Section 2.10 hereof shall be made to the Agent in the
aggregate amount payable to the Lenders for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, (b) all payments to be made
by the Borrower for the account of each of the Lenders on account of
principal, interest and fees, shall be made without set-off or counterclaim,
and (c) the Agent will distribute such payments when received to the Lenders as
provided for herein.
2.10 Unused Fee. For the period beginning on the Closing Date and ending
on the Revolving Credit Termination Date (or such earlier date on which the
Revolving Credit Facility has terminated), the Borrower agrees to pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages an Unused Fee equal to the Unused Fee per annum times
the daily amount by which the Total Revolving Credit Commitment exceeds the
average daily Outstandings. Such payments of fees provided for in this Section
shall be due in arrears on the last Business Day of each March, June, September
and December beginning June 30, 1997 to and on the Revolving Credit Termination
Date (or such earlier date on which the Revolving Credit Facility has
terminated). Such fee shall be calculated on the basis of a year of 360 days
for the actual number of days elapsed.
2.11 Deficiency Advances. No Lender shall be responsible for any default
of any other Lender in respect to such other Lender's obligation to make any
Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrower as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the Note in its favor
as a Lender evidencing Loans all or any portion of such amount or amounts
(each, a "deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same manner and at
the same interest rate or rates to which such other Lender would have been
entitled had it made such advance under its Note; provided that, upon payment
to the Agent from such other Lender of the entire outstanding amount of each
such deficiency advance, together with accrued and unpaid interest thereon,
from the most recent date or dates interest was paid to the Agent by the
Borrower on each Loan comprising the deficiency advance at the interest rate
per annum for overnight borrowing by the Agent from the Federal Reserve Bank,
then such payment shall be credited against the Note of the Agent evidencing
Loans in full payment of such deficiency advance and the Borrower shall be
deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any
payments of interest were made by the Borrower thereon.
2.12 Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower to (i)
refinance existing seller notes of up to $7,000,000, (ii) fund working capital
needs of the Borrower of up to $3,000,000, and (iii) finance Acquisitions
permitted herein.
ARTICLE III
Change in Circumstances
3.01 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule,
or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with
respect to any Eurodollar Loans, its Note, or its
obligation to make Eurodollar Loans, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement or its Note
in respect of any Eurodollar Loans (other than taxes
imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office
or such Applicable Lending Office or franchise taxes);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar
requirement (other than the Eurodollar Reserve Requirement
utilized in the determination of the Eurodollar Rate)
relating to any extensions of credit or other assets of, or
any deposits with or other liabilities or commitments of,
such Lender (or its Applicable Lending Office), including
the Revolving Credit Commitment of such Lender hereunder;
or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of
such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making, Converting
into, Continuing, or maintaining any Eurodollar Loans or to reduce
any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or its Note with respect to any
Eurodollar Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by
the Borrower under this Section 3.01(a), the Borrower may, by notice
to such Lender (with a copy to the Agent), suspend the obligation of
such Lender to make or Continue Loans of the Type with respect to
which such compensation is requested, or to Convert Loans of any
other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.04 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined
that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law)
of any such governmental authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender's obligations hereunder to a
level below that which such Lender or such corporation could have
achieved but for such adoption, change, request, or directive (taking
into consideration its policies with respect to capital adequacy),
then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant
to this Section 3.01 and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section 3.01 shall prior to
such collection furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
3.02 Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Loan;
(a) the Agent determines (which determination shall be
conclusive absent manifest error) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period;
or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
3.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender
shall promptly notify the Borrower thereof and such Lender's obligation to make
or Continue Eurodollar Loans and to Convert other Types of Loans into
Eurodollar Loans shall be suspended until such time as such Lender may again
make, maintain, and fund Eurodollar Loans (in which case the provisions of
Section 3.04 shall be applicable).
3.04 Treatment of Affected Loans. If the obligation of any Lender to make
a particular Eurodollar Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section
3.01 or 3.03 hereof (Loans of such Type being herein called "Affected Loans"
and such Type being herein called the "Affected Type"), such Lender's Affected
Loans shall be automatically Converted into Base Loans on the last day(s) of
the then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 3.03 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Section 3.01 or 3.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Loans of the Affected Type shall be made or Continued
instead as Base Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.01 or 3.03 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 3.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
3.05 Compensation. Upon the request of any Lender, the Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan
for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9.01) on a date other than the last day
of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified
in Article V to be satisfied) to borrow, Convert, Continue, or prepay
a Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
3.06 Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present
or future taxes, duties, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Lender
and the Agent, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Lender (or its Applicable
Lending Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other Loan
Document to any Lender or the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.06) such Lender or
the Agent receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions, (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Agent, at its address referred to in Section
11.02, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.06) paid by such Lender or the Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and
on or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the
Borrower or the Agent (but only so long as such Lender remains lawfully able to
do so), shall provide the Borrower and the Agent with (i) Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States, (ii) Internal Revenue
Service Form W-8 or W-9, as appropriate, or any successor form prescribed by
the Internal Revenue Service, and (iii) any other form or certificate required
by any taxing authority (including any certificate required by Sections 871(h)
and 881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments pursuant to
this Agreement or any of the other Loan Documents.
(e) or any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section
3.06(d) (unless such failure is due to a change in treaty, law, or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under Section
3.06(a) or 3.06(b) with respect to Taxes imposed by the United States;
provided, however, that should a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.06, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.06 shall survive the termination of the Commitments and the
payment in full of the Notes.
(i) To the extent that the payment of any Lender's Taxes by the Borrower
in accordance with this Section 3.06 gives rise from time to time a Tax Benefit
(as hereinafter defined) to such Lender in any jurisdiction other than the
jurisdiction which imposed such Taxes, such Lender shall pay to the Borrower
the amount of each such Tax Benefit so recognized or received. The amount of
each Tax Benefit and, therefore, payment to the Borrower will be determined
from time to time by the relevant Lender in its sole discretion, which
determination shall be binding and conclusive on all parties hereto. Each such
payment will be due and payable by such Lender to the Borrower within a
reasonable time after the filing of the income tax return in which such Tax
Benefit is recognized or, in the case of any tax refund, after the refund is
received; provided, however, if at any time thereafter such Lender is required
to rescind such Tax Benefit or such Tax Benefit is otherwise disallowed or
nullified, the Borrower shall promptly, after notice thereof from such Lender,
repay to such Lender the amount of such Tax Benefit previously paid to the
Borrower and rescinded, disallowed or nullified. For purposes of this Section
3.06(i), "Tax Benefit" shall mean the amount by which any Lender's income tax
liability for the taxable period in question is reduced below what would have
been payable had the Borrower not been required to pay the Lender's Taxes. In
the case of any dispute with respect to the amount of any payment, the Borrower
shall have no right to any offset or withholding of payments with respect to
future payments due to any Lender under this Agreement or the Notes.
3.07 Replacement Banks. The Borrower may, in its sole discretion, on ten
(10) Business Days' prior written notice to the Agent and a Lender, cause a
Lender who has incurred increased costs or is unable to make Eurodollar Loans
to (and such Lender shall) assign, pursuant to Section 11.01, all of its rights
and obligations under this Agreement to an Eligible Assignee designated by the
Borrower which is willing to become a Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender plus any
accrued but unpaid interest on such Loans, any accrued but unpaid fees with
respect to such Lender's Revolving Credit Commitment and any other amount
payable to such Lender under this Agreement; provided, however, that any
expenses or other amounts which would be owing to such Lender pursuant to any
indemnification provision hereof (including, if applicable, Section 3.05) shall
be payable to by the Borrower as if the Borrower had prepaid the Loans of such
Lender rather than such Lender having assigned its interest hereunder. The
Borrower or the assignee shall pay the applicable processing fee under Section
11.01.
ARTICLE IV
Security
4.01 Security. As security for the full and timely payment and
performance of all Obligations, the Loan Parties shall on or before the Closing
Date do all things necessary in the opinion of the Agent and its counsel to
grant to the Agent for the benefit of the Lenders a duly perfected first
priority security interest in all Collateral subject to no prior Lien (other
than Permitted Liens) or other encumbrance or restriction on transfer (other
than restrictions on transfer imposed by applicable securities laws).
4.02 Further Assurances. At the request of the Agent, the Borrower will
or will cause its Subsidiaries, as the case may be, to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument,
statement or document, or to take such other action (and pay all connected
costs) which the Agent reasonably deems necessary from time to time to create,
continue or preserve the liens and security interests in Collateral (and the
perfection and priority thereof) of the Agent contemplated hereby and by the
other Loan Documents.
ARTICLE V
Conditions to Making Loans
5.01 Conditions of Initial Advance. The obligation of the Lenders to make
the initial Advance pursuant to this Agreement is subject to the conditions
precedent that the Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and the Lenders, the following:
(a) executed originals of each of this Agreement, the Note and
the other Loan Documents, together with all schedules and exhibits
thereto;
(b) the pledged stock and stock powers executed in blank;
(c) favorable written opinions of special counsel to the Loan
Parties dated the Closing Date, addressed to the Lender substantially
in the form of Exhibit I attached hereto;
(d) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of the Loan
Parties certified by its secretary or assistant secretary as of the
Closing Date, appointing (in the case of the Borrower) the initial
Authorized Representative and approving and adopting the Loan
Documents to be executed by such Person, and authorizing the
execution and delivery thereof;
(e) specimen signatures of officers of each of the Loan Parties
executing the Loan Documents on behalf of such Person, certified by
the secretary or assistant secretary of the Borrower or Guarantor, as
applicable;
(f) the charter documents and bylaws of each of the Loan
Parties, certified by the secretary or assistant secretary of such
Guarantor;
(g) certificates issued as of a recent date by the Secretaries
of State of the jurisdiction of incorporation of each of the Loan
Parties as to the due existence and good standing of the Borrower and
each Guarantor therein;
(h) appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct business
under assumed name, issued in respect of each of the Loan Parties as
of a recent date by the Secretary of State or comparable official of
each jurisdiction in which the failure to be qualified to do business
or authorized so to conduct business could materially adversely
affect the business, operations or conditions, financial or
otherwise, of the Borrower or any Guarantor;
(i) receipt by the Agent and the Lenders of such fees and other
consideration as may be required by the terms of the commitment to
lend;
(j) notice of appointment of the initial Authorized
Representative;
(k) evidence of insurance required by the Loan Documents;
(l) evidence that all of the conditions required for the filing
of the articles of merger pursuant to the terms of Merger Agreement A
have been satisfied and evidence that all consents and approvals of
third parties, including those required in Section 9.8 of Merger
Agreement A and listed on Schedule 5.22 thereto, have been obtained;
and
(m) such other information, documents, instruments,
certificates and opinions as the Agent may reasonably request on or
prior to the Closing Date in connection with the consummation of the
transactions contemplated hereby.
5.02 Conditions of Loans. The obligations of the Lenders to make any
Loans hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:
(a) the Agent shall have received a Borrowing Notice if
required by Article II hereof;
(b) the representations and warranties of the Borrower set
forth in Article VI hereof and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the
date of such Advance with the same effect as though such represen-
tations and warranties had been made on and as of such date, except
to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements
referred to in Section 6.01(f)(i) shall be deemed to be those
financial statements most recently delivered to the Agent and the
Lenders pursuant to Section 7.01 hereof;
(c) at the time of, and after giving effect to, each such
Advance, no Default or Event of Default specified in Article IX
hereof, shall have occurred and be continuing; and
(d) immediately after giving effect to a Loan, Outstandings
shall not exceed the Total Revolving Credit Commitment and the
principal balance of all outstanding Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment; and
(e) in the good faith judgment of the Agent and the Lenders,
there shall not have occurred or become known to the Agent or the
Lenders any event, condition, situation or status that has had or
could reasonably be expected to result in a Material Adverse Effect.
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Borrower represents and warrants
with respect to itself and each Subsidiary(which representations and warranties
shall survive the delivery of the documents mentioned herein and the making of
Loans), that:
(a) Organization and Authority.
(i) the Borrower is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation;
(ii) the Borrower (x) has the requisite power and
authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in
the Loan Documents, and (y) is qualified to do business in
every jurisdiction in which failure so to qualify would
have a material adverse effect on the business or
operations taken as a whole of the Borrower;
(iii) the Borrower has the power and authority to
execute, deliver and perform this Agreement and the Notes,
and to borrow hereunder, and to execute, deliver and
perform each of the other Loan Documents to which it is a
party; and
(iv) each Guarantor has the power and authority to
execute, deliver and perform the Guaranty Agreement and
each of the other Loan Documents to which it is a party;
(v) when executed and delivered, each of the Loan
Documents to which any Loan Party is a party will be the
legal, valid and binding obligation or agreement of such
Loan Party, enforceable against such Loan Party in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally, to the
effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding
at law or in equity).
(b) Loan Documents. The execution, delivery and performance by
the Loan Parties of each of the Loan Documents to which it is a
party:
(i) have been duly authorized by all requisite
corporate action (including any required shareholder
approval) of each of the Loan Parties required for the
lawful execution, delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable
law, rule or regulation, (2) any order of any court or
other agency of government binding on the Loan Parties or
their respective properties, or (3) the charter documents
or by-laws of the Loan Parties;
(iii) does not and will not be in conflict with,
result in a breach of or constitute an event of default, or
an event which, with notice or lapse of time, or both,
would constitute an event of default, under any indenture,
agreement or other instrument to which the Loan Parties are
a party, or by which the properties or assets of the Loan
Parties are bound;
(iv) does not and will not result in the creation or
imposition of any Lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Loan
Parties except any liens in favor of the Agent for the
benefit of the Lenders created by the Loan Documents.
(c) Solvency. The Borrower is Solvent after giving effect to
the transactions contemplated by this Agreement and the other Loan
Documents.
(d) Subsidiaries and Stockholders. The Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in
Schedule 6.01(d) hereto; Schedule 6.01(d) to this Agreement states as
of the date hereof the principal place of business of the Borrower
and each Subsidiary, the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and
outstanding of each such Subsidiary and the number and/or percentage
of outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class
of capital stock or equity interest owned by Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each
such Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable; and Borrower and each such Subsidiary
owns beneficially and of record all the shares and other interests it
is listed as owning in Schedule 6.01(d), free and clear of any Lien
other than Liens created hereby.
(e) Ownership Interests. Borrower owns no interest in any
Person other than the Persons listed in Schedule 6.01(d) hereto and
Eligible Securities;
(f) Financial Condition. (i) The Borrower has heretofore
furnished to the Agent for the benefit of the Lenders balance sheets
of each of the Acquired Companies as at December 31, 1995, and
December 31, 1996 and the notes thereto and the related statements of
income, stockholders' equity and cash flows for the Fiscal Years then
ended, balance sheets of the Acquired Companies as of March 31, 1997,
and the related statements of income, stockholders' equity and cash
flows, in each case without notes, for and as of the three month
period then ended. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition of each of the Acquired Companies as of the end of such
Fiscal Years and the three month period and results of their
operations and the changes in their stockholders' equity for the
Fiscal Years and interim period then ended, all in conformity with
Generally Accepted Accounting Principles applied on a Consistent
Basis, subject however, in the case of unaudited interim statements
to year end adjustments;
(ii) The Borrower has heretofore furnished to the
Agent for the benefit of the Lenders pro forma historical
balance sheets of Borrower and its Subsidiaries as at
December 31, 1995 and December 31, 1996 and the notes
thereto and the related pro forma historical statements of
income, stockholders' equity and cash flows for the Fiscal
Years ended December 31, 1994, December 31, 1995 and
December 31, 1996. Except as set forth therein, such
financial statements (including the notes thereto) present
fairly the financial condition of the Borrower and its
Subsidiaries as of the end of such Fiscal Years and the
results of operations and the changes in their
stockholders' equity for the Fiscal Years then ended as if
the Acquired Companies had been Acquired on the dates of
such financial statements all in conformity with GAAP
applied on a Consistent Basis.
(iii) since March 31, 1997, there has been no material
adverse change in the condition, financial or otherwise, of
the Borrower and its Subsidiaries considered as a whole or
in the businesses, properties and operations of the
Borrower and its Subsidiaries, considered as a whole, nor
have such businesses or properties, considered as a whole,
been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God;
(iv) except as set forth in the financial statements
referred to in Section 6.01(f)(i) or in Schedule 6.01(f) or
Schedule 6.01(j) hereto, neither Borrower nor any
Subsidiary has incurred, other than in the ordinary course
of business and professional fees associated with the
transactions contemplated under the Merger Agreements and
this Agreement, any material indebtedness, obligations,
commitments or other liability contingent or otherwise
which remain outstanding or unsatisfied;
(g) Title to Properties. The Borrower has title to all its
real and personal properties, subject to no transfer restrictions or
Liens of any kind, except for Permitted Liens;
(h) Taxes. The Borrower and each Subsidiary has filed or
caused to be filed all federal, state and local tax returns which are
required to be filed by it and except for taxes and assessments being
contested in good faith and against which reserves satisfactory to
the Borrower's independent certified public accountants have been
established, has paid or caused to be paid all taxes as shown on said
returns or on any assessment received by it, to the extent that such
taxes have become due;
(i) Other Agreements. Except as set forth on Schedule 6.01(i),
neither the Borrower nor any Subsidiary is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions
materially adversely affecting the business, properties or
assets, operation or condition (financial or otherwise) of
the Borrower or any Subsidiary considered as a whole; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to
which the Borrower or any Subsidiary is a party, which
default has, or if not remedied within any applicable grace
period could have, a material adverse effect on the
business, operations or condition, financial or otherwise,
of the Borrower or any Subsidiary considered as a whole;
(j) Litigation. Except as set forth in Schedule 6.01(j)
hereto, there is no action, suit or proceeding at law or in equity or
by or before any governmental instrumentality or agency or arbitral
body pending, or, to the knowledge of the Borrower, threatened by or
against the Borrower or any Subsidiary or affecting the Borrower or
any Subsidiary or any properties or rights of the Borrower or any
Subsidiary, which could reasonably be expected to materially
adversely affect the financial condition, business or operations of
the Borrower or any Subsidiary considered as a whole;
(k) Margin Stock. The proceeds of the borrowings made pursuant
to Article II hereof will be used by the Borrower only for the
purposes set forth in Section 2.12 hereof. None of such proceeds
will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute
any of the Loans under this Agreement a "purpose credit" within the
meaning of said Regulation U or Regulation X (12 C.F.R. Part 224) of
the Board. Neither the Borrower nor any agent acting in its behalf
has taken or will take any action which might cause this Agreement or
any of the documents or instruments delivered pursuant hereto to
violate any regulation of the Board or to violate the Securities
Exchange Act of 1934, as amended, or the Securities Act of 1933, as
amended, or any state securities laws, in each case as in effect on
the date hereof;
(l) Investment Company. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. Section 80a-1, et seq.). The application
of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated
by this Agreement will not violate any provision of said Act, or any
rule, regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as in effect on the date hereof;
(m) Patents, Etc. The Borrower and each Subsidiary owns or has
the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights,
trade names, trade name rights, trade secrets and copyrights
necessary to the conduct of its business as now conducted, without
known conflict with any patent, license, franchise, trademark, trade
secrets and confidential commercial or proprietary information, trade
name, copyright, rights to trade secrets or other proprietary rights
of any other Person which could reasonably be expected to result in a
Material Adverse Effect;
(n) No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or
on behalf of the Borrower or any Loan Party in accordance with or
pursuant to any Loan Document contains any misrepresentation or
untrue statement of material fact or omits to state a material fact
necessary, in light of the circumstance under which it was made, in
order to make any such representation or statement contained therein
not misleading in any material respect;
(o) No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship
between the Borrower or any Subsidiary and any other Person, nor any
circumstance in connection with the execution, delivery and
performance of the Loan Documents and the transactions contemplated
hereby is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any governmental or
other authority or any other Person on the part of the Borrower or
any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by,
this Agreement or the other Loan Documents or if so, such consent,
approval, authorization, filing, registration or qualification has
been obtained or effected, as the case may be;
(p) ERISA.
(i) None of the employee benefit plans maintained at any
time by the Borrower or any Subsidiary or the trusts created
thereunder has engaged in a prohibited transaction which could
subject any such employee benefit plan or trust to a material tax or
penalty on prohibited transactions imposed under Internal Revenue
Code Section 4975 or ERISA;
(ii) None of the employee benefit plans maintained at any
time by the Borrower or any Subsidiary which are employee pension
benefit plans and which are subject to Title IV of ERISA or the
trusts created thereunder has been terminated so as to result in a
material liability of the Borrower or any Subsidiary under ERISA nor
has any such employee benefit plan of the Borrower or any Subsidiary
incurred any material liability to the Pension Benefit Guaranty
Corporation established pursuant to ERISA, other than for required
insurance which has been paid or is not yet due and payable; neither
the Borrower nor any Subsidiary has withdrawn from or caused a
partial withdrawal to occur with respect to any Multi-employer Plan
resulting in any assessed and unpaid withdrawal liability; the
Borrower and each Subsidiary has made or provided for all
contributions to all such employee pension benefit plans which they
maintain and which are required as of the end of the most recent
fiscal year under each such plan; neither the Borrower nor any
Subsidiary has incurred any accumulated funding deficiency with
respect to any such plan, whether or not waived; nor has there been
any reportable event, or other event or condition, which presents a
material risk of termination of any such employee benefit plan by
such Pension Benefit Guaranty Corporation which could reasonably be
expected to have a Material Adverse Effect;
(iii) The present value of all vested accrued benefits
under the employee pension benefit plans which are subject to Title
IV of ERISA, maintained by the Borrower or any Subsidiary did not, as
of the most recent valuation date for each such plan, exceed the then
current value of the assets of such employee benefit plans allocable
to such benefits;
(iv) The consummation of the Loans provided for in
Article II will not involve any prohibited transaction under ERISA
which is not subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each
employee pension benefit plan subject to Title IV of ERISA,
maintained by the Borrower or any Subsidiary, has been administered
in accordance with its terms in all material respects and is in
compliance in all material respects with all applicable requirements
of ERISA and other applicable laws, regulations and rules;
(vi) There has been no withdrawal liability incurred and
unpaid with respect to any Multi-employer Plan to which the Borrower
or any Subsidiary is or was a contributor which could reasonably be
expected to have a Material Adverse Effect;
(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have
the respective meanings assigned to them in ERISA, and the term
"prohibited transaction" shall have the meaning assigned to it in
Code Section 4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any
liability not disclosed on any of the financial statements furnished
to the Lenders pursuant to Section 6.01(f) hereof, contingent or
otherwise, under any plan or program or the equivalent for unfunded
post-retirement benefits, including pension, medical and death
benefits, which liability would have a Material Adverse Effect on the
financial condition of the Borrower and its Subsidiaries.
(q) No Default. As of the date hereof, there does not exist
any Default or Event of Default hereunder;
(r) Hazardous Materials. The Borrower and each Subsidiary is
in compliance with all applicable Environmental Laws in all material
respects. Neither the Borrower nor any Subsidiary has been notified
of any action, suit, proceeding or investigation which calls into
question compliance by the Borrower or any Subsidiary with any
Environmental Laws or which seeks to suspend, revoke or terminate any
license, permit or approval necessary for the generation, handling,
storage, treatment or disposal of any Hazardous Material which could
reasonably be expected to have a Material Adverse Effect;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged
in and has not engaged in any course of conduct that could subject
any of their respective properties to any Lien, seizure or other
forfeiture under any criminal law, racketeer influenced and corrupt
organizations law, civil or criminal, or other similar laws;
(t) Employment Matters. Except as set forth on Schedule
6.01(t), the Borrower and each Subsidiary is in compliance in all
material respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and
taxation and there is neither pending or threatened any material
litigation, administrative proceeding nor, to the knowledge of the
Borrower, any investigation, in respect of such matters which could
reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will and will
cause each Subsidiary to:
7.01 Financial Reports, Etc. (a) as soon as practical and in any event
within 120 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) consolidated and
consolidating balances sheet of the Borrower and its Subsidiaries, and the
notes thereto, and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows and the respective notes thereto,
for such Fiscal Year, setting forth comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis and containing opinions of
(in the case of such consolidated statements) independent certified public
accountants selected by the Borrower and approved by the Agent, which are
unqualified; and (ii) a certificate of an Authorized Representative
demonstrating compliance with Sections 8.01, 8.02, 8.03, and 8.04 of this
Agreement, which certificate shall be in the form attached hereto as Exhibit J;
(b) as soon as practical and in any event within 45 days after the end of
each fiscal quarter (except the last of the Fiscal Year), deliver to the Agent
and each Lender (i) consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such reporting period, the
related consolidated and consolidating statements of income, stockholders'
equity for such reporting period and for the period from the beginning of the
Fiscal Year through the end of such reporting period, accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, in conformity with the standards set forth in Section 6.01(f)(i) with
respect to interim financials and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a letter from
the Borrower's accountants specified in Section 7.01(a)(i) hereof stating that
in performing the audit necessary to render an opinion on the financial
statements delivered under Section 7.01(a)(i), they obtained no knowledge of
any Default or Event of Default by the Borrower or any Subsidiary in the
fulfillment of the terms and provisions of this Agreement insofar as they
relate to financial matters (which at the date of such statement remains
uncured); and if the accountants have obtained knowledge of such Default or
Event of Default, a statement specifying the nature and period of existence
thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower
shall deliver to the Agent and each Lender a copy of (i) all regular or special
reports or effective registration statements which Borrower or any Subsidiary
shall file with the Securities and Exchange Commission (or any successor
thereto) or any securities exchange, (ii) any proxy statement distributed by
the Borrower to its shareholders, bondholders or the financial community in
general, and (iii) any management letter or other report submitted to the
Borrower or any of its Subsidiaries by independent accountants in connection
with any annual, interim or special audit of the Borrower or any of its
Subsidiaries;
(e) as soon as practical and in any event within 30 days after the end of
each Fiscal Year of the Borrower, deliver to the Agent and each Lender a
capital and operating expense budget and consolidated financial projections for
the Borrower and its Subsidiaries for the next Fiscal Year, prepared in
accordance with GAAP applied on a Consistent Basis;
(f) as soon as practical and in any event within 45 days following the
end of each fiscal quarter, deliver to the Agent and each Lender an accounts
receivable and accounts payable aging report in form and detail acceptable to
the Agent;
(g) promptly, from time to time, deliver or cause to be delivered to the
Agent and each Lender such other information regarding the Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
The Agent and the Lenders are hereby authorized to deliver a copy of any
such financial or other information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent, to any Governmental Authority having
jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or
acquisition of any participation interest in, any Obligation permitted by this
Agreement subject to the terms of Section 11.15.
7.02 Maintain Properties. Maintain all material properties necessary to
its operations in good working order and condition (ordinary wear and tear
excepted) and make all needed repairs, replacements and renewals as are
necessary to conduct its business in accordance with customary business
practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and
maintain its license or qualification to do business as a foreign corporation
and good standing in each jurisdiction in which the failure to so maintain or
qualify would have a material adverse affect on the Borrower or its
Subsidiaries considered as a whole.
7.04 Regulations and Taxes. Comply with or contest in good faith all
material statutes and governmental regulations and pay all material taxes,
assessments, governmental charges, claims for labor, supplies, rent and any
other obligation which, if unpaid, might become a Lien against any of its
properties except liabilities being contested in good faith and against which
adequate reserves have been established in accordance with Generally Accepted
Accounting Principles.
7.05 Insurance. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner customarily insured
against by similar businesses owning such properties similarly situated, (ii)
maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property having such limits, deductibles, exclusions and co-insurance and other
provisions providing no less coverage than that specified in Schedule 7.05
attached hereto, such insurance policies to be in form satisfactory to the
Agent, (iii) maintain insurance under all applicable workers' compensation laws
(or in the alternative, maintain required reserves if self-insured for workers'
compensation purposes), and (iv) maintain insurance on all Collateral as
required by the Security Agreement.
7.06 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business in
general, and include such reserves in interim as well as year-end financial
statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly
comply with all the terms and covenants contained in all Loan Documents and
other instruments and documents given to the Agent or the Lenders pursuant
hereto or thereto.
7.08 Right of Inspection. Permit the Agent and any Lender and
accountants, attorneys or other consultants designated by the Agent and any
Lender at the Agent or any Lender's expense to visit and inspect any of the
properties, corporate books and financial reports of the Borrower and its
Subsidiaries, and to discuss their respective affairs, finances and accounts
with their principal executive officers and independent certified public
accountants, all at times reasonably convenient to the Borrower, at reasonable
intervals and with reasonable prior notice.
7.09 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of
any regulatory authority with respect to the conduct of its business.
7.10 Officer's Knowledge of Default. Upon the President, any Vice
President, the Chief Financial Officer or the Controller of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary described in Section
9.01(e), cause such officer or an Authorized Representative to promptly notify
the Agent of the nature thereof, the period of existence thereof, and what
action the Borrower proposes to take with respect thereto.
7.11 Suits or Other Proceedings. Upon the President, any Vice President,
the Chief Financial Officer or the Controller of the Borrower obtaining
knowledge of any litigation or other proceedings being instituted against the
Borrower or any Subsidiary, or any attachment, levy, execution or other process
being instituted against any assets of the Borrower or any Subsidiary, in an
amount greater than $100,000 not otherwise covered by insurance, promptly
deliver to the Agent written notice thereof stating the nature and status of
such litigation, dispute, proceeding, levy, execution or other process.
7.12 Notice of Discharge of Hazardous Material or Environmental Complaint.
Promptly provide to the Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims, or citations received by the
Borrower or any Subsidiary relating to any material (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental
Laws or OSHA; (b) release or threatened release by the Borrower or any
Subsidiary of any Hazardous Material, except where occurring legally; or (c)
liability or alleged liability of the Borrower or any Subsidiary for the costs
of cleaning up, removing, remediating or responding to a release of Hazardous
Materials.
7.13 Environmental Compliance. If the Borrower or any Subsidiary shall
receive notice from any governmental authority that the Borrower or any
Subsidiary has violated any applicable Environmental Laws, the Borrower shall
to the extent required by law and after expiration of all valid appeals and
administrative proceedings (and in any event within the time period permitted
by the applicable governmental authority) remove or remedy, or cause the
applicable Subsidiary to remove or remedy, such violation.
7.14 Indemnification. The Borrower hereby agrees to defend, indemnify and
hold the Agent and each Lender and each of their affiliates and their
respective officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation, cleanup costs
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of the Borrower or any Subsidiary or
property owned or leased or operated by the Borrower or any Subsidiary, except
to the extent such claim, loss, liability, damage or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
The provisions of this Section 7.14 shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date and expiration or
termination of this Agreement.
7.15 Further Assurances. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and
the other Loan Documents.
7.16 ERISA Requirement. Comply in all material respects with all
requirements of ERISA applicable to it and furnish to the Agent as soon as
possible and in any event (i) within thirty (30) days after the Borrower knows
or has reason to know that any reportable event with respect to any employee
benefit plan subject to Title IV of ERISA maintained by the Borrower or any
Subsidiary which could give rise to termination or the imposition of any
material tax or penalty has occurred, written statement of an Authorized
Representative describing in reasonable detail such reportable event and any
action which the Borrower or applicable Subsidiary proposes to take with
respect thereto, together with a copy of the notice of such reportable event
given to the Pension Benefit Guaranty Corporation ("PBGC") or a statement that
said notice will be filed with the annual report of the United States
Department of Labor with respect to such plan if such filing has been
authorized, (ii) promptly after receipt thereof, a copy of any notice that the
Borrower or any Subsidiary may receive from the PBGC relating to the intention
of the PBGC to terminate any employee benefit plan or plans of the Borrower or
any Subsidiary or to appoint a trustee to administer any such plan, and (iii)
within 10 days after a filing with the PBGC pursuant to Section 412(n) of the
Code of a notice of failure to make a required installment or other payment
with respect to a plan, a certificate of an Authorized Representative setting
forth details as to such failure and the action that the Borrower or its
affected Subsidiary, as applicable, proposes to take with respect thereto,
together with a copy of such notice given to the PBGC.
7.17 Continued Operations. Continue at all times (i) to conduct its
business and engage principally in a line or lines of business involving the
furnishing of personnel related services, and (ii) preserve, protect and
maintain free from Liens its material patents, copyrights, licenses,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
know-how necessary or materially useful in the conduct of its operations,
except to the extent Borrower or its Subsidiaries is otherwise permitted
hereunder to dispose of assets.
7.18 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.12 hereof.
7.19 New Subsidiaries. (a) Within thirty (30) days of the acquisition or
creation of any Subsidiary cause to be delivered to the Lender each of the
following:
(i) a Guaranty Agreement substantially in the form
attached hereto as Exhibit K;
(ii) (A) to the extent required by Section 7.19(b) hereof,
the Pledged Stock, together with duly executed stock powers in blank
affixed thereto, and (B) if such Collateral shall be owned by a
Subsidiary who has not then executed and delivered to the Agent a
security instrument from the owner of such Collateral granting a Lien
to the Agent in such Collateral, a Pledge Agreement substantially
similar in form and content to that executed and delivered by the
Borrower as of the Closing Date, with appropriate revisions as to the
identity of the pledgor and securing the obligations of such pledgor
under its Guaranty Agreement;
(iii) an opinion of counsel to the Subsidiary dated as
of the date of delivery of the Guaranty Agreement provided
in the foregoing clause (i) and addressed to the Agent and
the Lenders, in form and substance reasonably acceptable to
the Agent (which opinion may include assumptions and
qualifications of similar effect to those contained in the
opinions of counsel delivered pursuant to Section 6.01(b)
hereof), to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
organization, has the requisite power and authority to own
its properties and conduct its business as then owned and
then proposed to be conducted; and
(B) the execution, delivery and performance of the
Guaranty Agreement and other Loan Documents described in
clause (i) and (ii) of this Section 7.19 to which such
Subsidiary is a signatory have been duly authorized by all
requisite corporate action (including any required
shareholder approval), such agreements have been duly
executed and delivered and constitute valid and binding
obligations of such Subsidiary, enforceable against such
Subsidiary in accordance with their terms, subject to the
effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting
the enforceability of creditors' rights generally and to
the effect of general principles of equity which may limit
the availability of equitable remedies (whether in a
proceeding at law or in equity); and
(iv) current copies of the charter documents,
including partnership agreements and certificate of
limited partnership, if applicable, and bylaws of such
Subsidiary, minutes of duly called and conducted meetings
(or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof
(and, if required by such charter documents, bylaws or by
applicable laws, of the shareholders or partners) of such
Subsidiary authorizing the actions and the execution and
delivery of documents described in clause (i) of this
Section 7.19 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by
the Agent) that such Subsidiary is Solvent as of such date
and after giving effect to the Guaranty Agreement.
(b) Cause at all times the Agent to have a duly perfected first
priority security interest in all of the issued and outstanding
capital stock of each Subsidiary.
7.20 Acquisition B. Cause the consummation of Acquisition B pursuant to
the terms of Merger Agreement B on or before May 31, 1997 and, at such time as
Acquisition B is consummated update all schedules to this Agreement.
ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
8.01 Consolidated Leverage Ratio. Permit at the end of each fiscal
quarter the Consolidated Leverage Ratio to exceed 3.00 to 1.00.
8.02 Consolidated Fixed Charge Coverage Ratio. Permit at the end of each
fiscal quarter the Consolidated Fixed Charge Ratio to be less than 2.00 to
1.00.
8.03 Consolidated Capitalization Ratio. Permit at any time during the
periods set forth below the Consolidated Capitalization Ratio to exceed that
set forth below opposite such period:
Period Ratio
(a) Closing Date through 12/31/97 0.75 to 1.00
(b) Thereafter 0.55 to 1.00
8.04 Consolidated Current Ratio. Permit at the end of each fiscal quarter
the Consolidated Current Ratio to be less than 1.40 to 1.00.
8.05 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(a) Indebtedness existing as of the date hereof and as set
forth in Schedule 6.01(f) attached hereto and incorporated herein by
reference and any renewal or refinancings thereof so long as such
renewal or refinancing does not increase the principal amount or
accelerate the maturity of such Indebtedness;
(b) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business;
(c) Indebtedness arising under this Agreement;
(d) indebtedness related to Capital Leases and purchase money
Indebtedness not to exceed $200,000 in the aggregate outstanding at
any time;
(e) Indebtedness incurred in connection with an Acquisition
approved by the Required Lenders pursuant to the terms of Section
8.07(iv)(D);
(f) intercompany Indebtedness permitted under Section 8.07(v);
(g) the guaranty of the Non-Competition Agreement set forth as
item number 2 on Schedule 6.01(f); and
(h) additional outstanding Indebtedness of up to an aggregate
principal amount of $100,000.00.
For purposes of determining the amount of Indebtedness incurred in connection
with an Acquisition, any Indebtedness which under Generally Accepted Accounting
Principles must be recorded as a liability on the consolidated balance sheet of
the Borrower, whether or not constituting a Contingent Obligation or
Indebtedness for Money Borrowed, shall be deemed Indebtedness at 100% of the
amount thereof for purposes of this Section 8.06, and to the extent such
Indebtedness is not so required to be recorded as a liability, it shall not be
deemed Indebtedness for purposes of this Section 8.06.
8.06 Transfer of Assets. Sell, lease, transfer or otherwise dispose of
(i) any interest in any Guarantor, or (ii) any other asset of Borrower or any
Guarantor except (a) assets sold in the ordinary course of business, (b) assets
which are worn out, obsolete or no longer necessary, or (c) assets transferred
among the Loan Parties.
8.07 Investments; Acquisitions. Purchase, own, invest in or otherwise
Acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, however, the Borrower and its Subsidiaries may maintain
investments or invest in or Acquire
(i) Eligible Securities;
(ii) investments existing as of the date hereof and
as set forth in Schedule 6.01(d) attached hereto;
(iii) accounts receivable arising and trade credit
granted in the ordinary course of business and any
securities received in satisfaction or partial satisfaction
thereof in connection with accounts of financially troubled
Persons to the extent reasonably necessary in order to
prevent or limit loss;
(iv) Acquisitions so long as (A) the Person to be (or
whose assets are to be) Acquired does not oppose such
Acquisition and the line or lines of business of the Person
to be Acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its
Subsidiaries or compliments the existing business of the
Borrower and its Subsidiaries, (B) no Default or Event of
Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to
such Acquisition and the Borrower shall have furnished to
the Agent (x) proforma historical financial statements as
of the end of the most recently ended Fiscal Year of the
Borrower and the most recently ended fiscal quarter, if
applicable, giving effect to such Acquisition and
containing adjustments to Consolidated EBITDA as set forth
in the definition of Adjusted Consolidated EBITDA and (y) a
Compliance Certificate in the form of Exhibit J prepared on
an historical proforma basis giving effect to such
Acquisition, which Compliance Certificate shall demonstrate
that no Default or Event of Default would exist immediately
after giving effect thereto based on the use of Adjusted
Consolidated EBITDA for purposes of compliance with
Sections 8.01 and 8.02, (C) the Person Acquired shall be a
wholly-owned Subsidiary, or be merged into the Borrower or
a wholly-owned Subsidiary (or if assets are being Acquired,
the acquiror shall be the Borrower or a wholly-owned
Subsidiary), (D) if the Person to be (or whose assets are
to be ) Acquired is domiciled outside the United States of
America or if the Cost of Acquisition shall (x) exceed
$2,000,000 for any single Acquisition or (y) cause the
aggregate Cost of Acquisitions over the life of the
Revolving Credit Facility to exceed $4,000,000, the consent
of the Required Lenders shall be required, and (E) copies
of all legal and financial information and documentation,
which, in the Agent's reasonable judgment is required to
evaluate any proposed Acquisition, shall be delivered to
the Agent ten (10) Business Days prior to any Acquisition;
(v) loans and advances to and investments in
Subsidiaries so long as such Subsidiary shall be a
Guarantor or shall become a Guarantor pursuant to Section
7.19;
(vi) investments in the form of ownership of the
capital stock of any Subsidiary; and
(vii) guarantees of any Indebtedness of a Subsidiary
permitted under Section 8.05 hereof.
8.08 Liens. Incur, create or permit to exist any pledge, Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets of the Borrower or any Subsidiary to secure Indebtedness owed to any
other Person, other than Permitted Liens.
8.09 Dividends or Distributions. Declare or pay any dividends (other than
those payable solely in capital stock) or distribution in reduction of capital
or otherwise in respect of any equity interest, or purchase, redeem or
otherwise retire any such equity interest except (a) the Borrower may make
distributions to stockholders in an amount equal to the lesser of (i) the
amount of each stockholder's income tax liability payable by reason of the
operations of the Borrower and its Subsidiaries or (ii) fifty percent (50%) of
Consolidated Net Income before income taxes, and (b) Subsidiaries may pay
dividends to the Borrower.
8.10 Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it; or (c)
liquidate, wind-up or dissolve or sell, transfer or lease or otherwise dispose
of all or a substantial part of its assets (other than sales in the ordinary
course of business); provided, however, (i) any Subsidiary of the Borrower may
merge or transfer all or substantially all of its assets into or consolidate
with any wholly-owned Subsidiary of the Borrower or any Guarantor who has
secured its Guaranty, (ii) any Person may merge with the Borrower or a wholly-
owned Subsidiary if the Borrower or such Subsidiary shall be the survivor
thereof and such merger shall not cause, create or result in the occurrence on
any Default or Event of Default hereunder.
8.11 Change in Control. Cause, suffer or permit any Change of Control.
8.12 Transactions with Affiliates. Enter into any transaction after the
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower (other than a Subsidiary), except (a) that such
Persons may render services to the Borrower or its Subsidiaries for
compensation at the same rates generally paid by Persons engaged in the same or
similar businesses for the same or similar services (including directors'
fees), (b) in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's (or any Subsidiary's) business consistent with
past practice of the Borrower and its Subsidiaries, (c) the Borrower or any
Subsidiary may rent a certain aircraft owned by Aviation Leasing, Inc., an
affiliate of Xxxxx X. Xxxxxx, so long as the rental payments thereunder do not
exceed $50,000 in any fiscal year, and (d) the Employment Agreements identified
on Schedule 8.12 hereof.
8.13 ERISA. With respect to all employee pension benefit plans maintained
by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit
plans so as to incur any liability to the Pension Benefit
Guaranty Corporation established pursuant to ERISA;
(ii) allow or suffer to exist any prohibited
transaction involving any of such employee pension benefit
plans or any trust created thereunder which would subject
the Borrower or a Subsidiary to any material tax or penalty
or other liability on prohibited transactions imposed under
Internal Revenue Code Section 4975 or ERISA;
(iii) fail to pay to any such employee pension benefit
plan any contribution which it is obligated to pay under
the terms of such plan;
(iv) allow or suffer to exist any accumulated funding
deficiency, whether or not waived, with respect to any such
employee pension benefit plan;
(v) allow or suffer to exist any occurrence of a
reportable event or any other event or condition, which
presents a material risk of termination by the Pension
Benefit Guaranty Corporation of any such employee pension
benefit plan that is a Single Employer Plan, which
termination could result in any liability to the Pension
Benefit Guaranty Corporation; or
(vi) incur any withdrawal liability with respect to
any Multi-employer Plan.
8.14 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into a Borrower permitted
pursuant to Section 8.10.
8.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to
Rate Hedging Obligations, except pursuant to a Swap Agreement.
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of
the principal of any Loan or other Obligation, when and as the same
shall be due and payable whether pursuant to any provision of Article
II hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of
any amount of interest on any Loan or of any fees or other amounts
payable to any of the Lenders under the Loan Documents on the date on
which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 7.06, 7.07(a), 7.08, 7.10,
7.19, or Article VIII hereof (except that in the case of Section
8.05, 8.07(i), 8.08 and 8.12 such default shall continue for a period
of ten (10) days after the occurrence thereof);
(d) if a default shall be made in the performance or observance
of, or shall occur under, any covenant, agreement or provision
contained in this Agreement or the Notes (other than as described in
clauses (a), (b) or (c) above) and such default shall continue for 30
or more days after the earlier of receipt of notice of such default
by the Authorized Representative from the Agent or the Borrower
becomes aware of such default, or if a default shall be made in the
performance or observance of, or shall occur under, any covenant,
agreement or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained therein) or in
any instrument or document delivered to the Agent or the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations evidencing or creating any obligation or guaranty in
favor of the Agent or any of the Lenders, or if any Loan Document
ceases to be in full force and effect (other than by reason of any
action by the Agent), or if without the written consent of the
Required Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of
any action by the Agent or the Lenders); or
(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of the Borrower or
of any Subsidiary in an amount not less than $50,000 in the aggregate
outstanding, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in any agreement or instrument under
or pursuant to which any such Indebtedness may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and such default shall continue for more than the period
of grace, if any, therein specified, or if such default shall permit
the holder of any such Indebtedness to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the Agent
or any of the Lenders by or on behalf of the Borrower or any
Subsidiary pursuant to or in connection with this Agreement or the
other Loan Documents, or otherwise, shall be false or misleading in
any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment
of a receiver, trustee, liquidator or conservator of itself or of the
whole or any substantial part of its property; file a petition or
answer seeking reorganization or arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute;
or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law
or statute of the United States of America or any state, which
petition is not dismissed within sixty (60) days; or if, under the
provisions of any other law for the relief or aid of debtors, a court
of competent jurisdiction shall assume custody or control of the
Borrower or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state which proceeding or petition remains undismissed for a period
of sixty (60) days; or if the Borrower or any Subsidiary takes any
action to indicate its consent to or approval of any such proceeding
or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $50,000 is rendered against the Borrower or any
Subsidiary, or (ii) there is any attachment, injunction or execution
against any of the Borrower's or any Subsidiary's properties for any
amount in excess of $50,000; and such judgment, attachment,
injunction or execution has not been either paid, stayed, discharged,
bonded or dismissed for a period of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices),
suspend all or any part of its operations material to the conduct of
the business of the Borrower and the Subsidiaries, taken as a whole;
or
(k) if the Borrower or any Subsidiary shall breach any of the
terms or conditions of any agreement under which any Rate Hedging
Obligation permitted pursuant to Section 8.15 is created and such
breach shall continue beyond any grace period, if any, relating
thereto pursuant to the terms of such Obligation, or the Borrower or
any Subsidiary shall disaffirm or seek to disaffirm any such
agreement or any of its obligations thereunder; or
(l) if at any time the Agent shall not be in receipt of the
Guaranty Agreement or any other Loan Document required under Section
7.19 within the time set forth thereunder;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders to make
further Loans terminated, whereupon the obligation of the
Lenders to make further Loans hereunder shall terminate
immediately, and (ii) the Agent shall, at the direction of
the Required Lenders declare by notice to the Borrower any
or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the
Lenders, shall forthwith become immediately due and payable
without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly
waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there
shall occur an Event of Default under clause (g) or (h)
above, then the obligation of the Lenders to make Loans
hereunder shall automatically terminate and any and all of
the Obligations shall be immediately due and payable
without the necessity of any action by the Agent or the
Required Lenders or notice to the Agent or the Lenders;
(B) The Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan
Documents or under any applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall occur
and not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce its rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or
in any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the
Agent is intended to be exclusive of any other rights or remedies contained
herein or in any other Loan Document, and every such right or remedy shall be
cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity
or by statute, or otherwise.
9.04 No Waiver. No course of dealing between the Borrower and any Lender
or the Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
9.05 Allocation of Proceeds. If an Event of Default has occurred and not
been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.09, 3.03,
3.04 and 11.05;
(b) amounts due to the Agent pursuant to Section 10.08;
(c) payments of interest on the Loans to be applied for the
ratable benefit of the Lenders;
(d) payments of principal of the Loans to be applied for the
ratable benefit of the Lenders;
(e) amounts due to the Lenders pursuant to Section 7.14;
(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(g) amounts due to any of the Lenders in respect of Obligations
consisting of liabilities under any Swap Agreement with any of the
Lenders on a pro rata basis according to the amounts owed; and
(h) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
ARTICLE X
The Agent
10.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence and in
Section 10.05 and the first sentence of Section 10.06 hereof shall include its
affiliates and its own and its affiliates' officers, directors, employees, and
agents): (a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or fiduciary
for any Lender; (b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other document referred
to or provided for in, or received by any of them under, any Loan Document, or
for the value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document, or any other document referred to or provided
for therein or for any failure by any Loan Party or any other Person to perform
any of its obligations thereunder; (c) shall not be responsible for or have any
duty to ascertain, inquire into, or verify the performance or observance of
any covenants or agreements by any Loan Party or the satisfaction of any
condition or to inspect the property (including the books and records) of any
Loan Party or any of its Subsidiaries or affiliates; (d) shall not be required
to initiate or conduct any litigation or collection proceedings under any Loan
Document; and (e) shall not be responsible for any action taken or omitted to
be taken by it under or in connection with any Loan Document, except for its
own gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
Notwithstanding any provision of this Agreement to the contrary, so long as
NationsBank is the sole Lender, the term "Agent" shall mean NationsBank as
Lender.
10.02 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it
to be genuine and correct and to have been signed, sent or made by or on behalf
of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any Loan Party), independent accountants, and
other experts selected by the Agent. The Agent may deem and treat the payee of
any Note as the holder thereof for all purposes hereof unless and until the
Agent receives and accepts an Assignment and Acceptance executed in accordance
with Section 11.01 hereof. As to any matters not expressly provided for by
this Agreement, the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is
contrary to any Loan Document or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking any such action.
10.03 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default
or Event of Default and stating that such notice is a "Notice of Default". In
the event that the Agent receives such a notice of the occurrence of a Default
or Event of Default, the Agent shall give prompt notice thereof to the Lenders.
The Agent shall (subject to Section 10.02 hereof) take such action with respect
to such Default or Event of Default as shall reasonably be directed by the
Required Lenders, provided that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the
Lenders.
10.04 Rights as Lender. With respect to its Revolving Credit
Commitment and the Loans made by it, NationsBank (and any successor acting as
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it
were not acting as the Agent, and the term "Lender" or "Lenders" shall, unless
the context otherwise indicates, include the Agent in its individual capacity.
NationsBank (and any successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Loan Party or any of its
Subsidiaries or affiliates as if it were not acting as Agent, and NationsBank
(and any successor acting as Agent) and its affiliates may accept fees and
other consideration from any Loan Party or any of its Subsidiaries or
affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 11.05 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with
their respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or
omitted by the Agent under any Loan Document; provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs of expenses payable by the
Borrower under Section 11.05, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements
contained in this Section shall survive payment in full of the Loans and all
other amounts payable under this Agreement.
10.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees
that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Loan Parties and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of any Loan Party or any of its Subsidiaries
or affiliates that may come into the possession of the Agent or any of its
affiliates.
10.07 Resignation of Agent. The Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor, such successor shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article X shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
10.08 Fees. When and if there shall be more than one Lender under
this Agreement, the Borrower agrees to pay to the Agent, for its individual
account, an annual Agent's fee as from time to time agreed to by the Borrower
and Agent in writing.
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to
$2,500,000 or an integral multiple of $500,000 in excess
thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights
and obligations under this Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit B hereto, together with
any Notes subject to such assignment and a processing fee
of $3,500; provided that such fee is not to be charged to
the Borrower unless the assignment is made pursuant to
Section 3.07 hereof.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder
and the assigning Lender shall, to the extent of such assignment, relinquish
its rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section 11.01, the assignor,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of America or
a state thereof, it shall deliver to the Borrower and the Agent certification
as to exemption from deduction or withholding of Taxes in accordance with
Section 3.06.
(b) The Agent shall maintain at its address referred to in Section 11.02
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations (at no cost to the Borrower) to
one or more Persons in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and its Loans); provided, however, that (i) such participation shall be in an
amount at least equal to $1,000,000 or an integral multiple of $500,000 in
excess thereof, (ii) such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iv) the
participant shall be entitled to the benefit of the yield protection provisions
contained in Article III and the right of set-off contained in Section 11.03,
and (v) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement
(other than amendments, modifications, or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Loans or Note,
extending any scheduled principal payment date or date fixed for the payment of
interest on such Loans or Note, or extending its Revolving Credit Commitment,
or releasing all or substantially all of the Collateral).
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
(g) The Borrower may not assign any rights, powers, duties or obligations
under this Agreement or the other Loan Documents without the prior written
consent of all the Lenders.
11.02 Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of telephonic notice or notice by telefacsimile, telegram or telex
(where the receipt of such message is verified by return) expressly provided
for hereunder, when received during normal business hours at such telephone,
telefacsimile or telex number as may from time to time be specified in written
or oral notice to the other parties hereto or otherwise received), or by
overnight courier or express mail on the day following the date sent, addressed
to such party at said address:
(a) if to the Borrower:
ICCE, Inc.
Five Concourse Parkway
Suite 2700
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx, Xx.
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Agent:
NationsBank, National Association
MD2-600-03-02
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
NationsBank, National Association
MD2-600-03-02
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Lending
(c) if to any Lender:
At the addresses set forth on the signature pages hereof and on
the signature pages of each Assignment and Acceptance;
(d) If to any other Loan Party, at the address set forth on the
signature page of the Loan Document executed by such Loan Party.
11.03 Right of Setoff; Adjustments. (a) Upon the occurrence and
during the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Notes held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or
receive any Collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any such
payment to or Collateral received by any other Lender, if any, in respect of
such other Lender's Loans owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans owing to it, or shall provide
such other Lenders with the benefits of any such Collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such Collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that
any Lender so purchasing a participation from a Lender pursuant to this Section
11.03 may, to the fullest extent permitted by law, exercise all of its rights
of payment (including the right of set-off) with respect to such participation
as fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the execution and delivery to the Lenders of this Agreement and the Notes and
shall continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any commitment hereunder or the Borrower has
continuing obligations hereunder unless otherwise provided herein. Whenever in
this Agreement, any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are
contained in this Agreement, the Notes and the other Loan Documents shall inure
to the benefit of the successors and permitted assigns of the Lenders or any of
them.
11.05 Expenses. The Borrower agrees
(a) to pay or reimburse the Agent for all its reasonable and
customary out-of-pocket costs and expenses incurred in connection
with the preparation, negotiation and execution of, this Agreement or
any of the other Loan Documents (including travel expenses relating
to closing), and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable and
customary fees and disbursements of counsel to the Agent as well as
all such expenses and costs arising in connection with any amendment,
supplement or modification to this Agreement or any other Loan
Documents,
(b) to pay or reimburse the Agent and the Lenders for all their
reasonable costs and expenses incurred in connection with the
enforcement (only from and after the occurrence and continuation of a
Default or Event of Default) or preservation of any rights under this
Agreement and the other Loan Documents, including without limitation,
the reasonable fees and disbursements of its counsel,
(c) to pay, indemnify and hold the Agent and the Lenders
harmless from any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any failure to pay or
delay in paying, documentary, stamp, excise and other similar taxes,
if any, which may be payable or determined to be payable in
connection with the execution and delivery of this Agreement or any
other Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
this Agreement or any other Loan Documents, and
(d) to pay, indemnify, and hold the Agent and the Lenders
harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any
indemnity agreement or undertaking made by the Agent or any Lender to
facilitate the processing of checks, payroll or otherwise, of
Borrower, or in any respect relating to the transactions contemplated
hereby or thereby, (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Borrower shall have no
obligation hereunder with respect to indemnified liabilities arising
from (i) the willful misconduct or gross negligence of or the willful
breach of the Loan Documents by the party seeking indemnification,
(ii) legal proceedings commenced against the Agent or any Lender by
any security holder or creditor thereof arising out of and based upon
rights afforded any such security holder or creditor solely in its
capacity as such, (iii) any taxes imposed upon the Agent or any
Lender other than the documentary, stamp, excise and similar taxes
described in clause (c) above or any tax which would be payable to
Lender by Borrower pursuant to Article III hereof, it being
understood that the Lenders shall have the affirmative obligation, so
long as no Default or Event of Default exists hereunder, to take all
reasonable steps to ensure such documentary, stamp or similar taxes
are not required to be paid, (iv) taxes imposed and costs and
expenses incurred as a result of a transfer or assignment of any
Note, participation or assignment of a portion of a Lender's rights
or (v) any transfer taxes, costs, fees or expenses incurred in
connection with any transfer of the Notes. The agreements in this
subsection shall survive repayment of the Notes and all other
Obligations hereunder and termination of this Agreement.
11.06 Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed
by all the Lenders (i) increase the Revolving Credit Commitments of the
Lenders, (ii) reduce the principal of or rate of interest on any Loan or any
fees or other amounts payable hereunder, (iii) postpone any date fixed for the
payment of any scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable hereunder or for termination of any Revolving
Credit Commitment, (iv) change the percentage of the Revolving Credit
Commitments or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section or any other provision of this Agreement or (v)
release any Guarantor or all or substantially all of the Collateral.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.08 Waivers by Borrower. In any litigation in any court with
respect to, in connection with, or arising out of this Agreement, the Loans,
any of the Notes, any of the other Loan Documents, the Obligations, or any
instrument or document delivered pursuant to this Agreement or the other Loan
Documents, or the validity, protection, interpretation, collection or
enforcement thereof, or any other claim or dispute howsoever arising between
the Borrower and the Agent and any Lender, the Borrower and the Agent and the
Lenders hereby waive, to the extent permitted by applicable law, trial by jury
in connection with any such litigation.
11.09 Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Agent or the Lenders or any obligation of the
Borrower, the Agent or the Lenders, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of
the Lenders hereunder and under the other Loan Documents shall continue in full
force and effect, notwithstanding the termination of this Agreement, until all
of the Obligations have been paid in full after the termination hereof (other
than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) or the Borrower has
furnished the Agent and the Lenders with an indemnification satisfactory to the
Lender with respect thereto. All representations, warranties, covenants,
waivers and agreements contained herein shall survive termination hereof until
payment in full of the Obligations unless otherwise provided herein.
Notwithstanding the foregoing, if after receipt of any payment of all or any
part of the Obligations, any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of trust funds or
for any other reason, this Agreement shall continue in full force and the
Borrower shall be liable to, and shall indemnify and hold such Lender harmless
for, the amount of such payment surrendered until the Lenders shall have been
finally and irrevocably paid in full. The provisions of the foregoing sentence
shall be and remain effective notwithstanding any contrary action which may
have been taken by the Lender in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Lender's rights
under this Agreement and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
11.10 Governing Law. ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF GEORGIA; PROVIDED THAT THIS SECTION 11.10
SHALL NOT AFFECT THE APPLICABILITY OF, AND INTERPRETATION OR CONSTRUCTION OF
APPROPRIATE TERMS AND PROVISIONS UNDER THE UNIFORM COMMERCIAL CODE OF ANY
JURISDICTION WHICH GOVERN THE LIENS ON ANY OF THE COLLATERAL. THE BORROWER AND
THE AGENT HEREBY SUBMIT TO THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL
COURTS OF GEORGIA FOR THE PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE
PURPOSES OF COLLECTION.
11.11 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more
of the parties hereto, then such provision shall remain in effect with respect
to all parties, if any, as to whom such provision is neither illegal nor
invalid, and in any event all other provisions hereof shall remain effective
and binding on the parties hereto.
11.12 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.13 Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
11.14 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at
all times been in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law,
the Borrower shall pay to the Agent an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been
paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrower to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes
interest in excess of the Highest Lawful Rate, then any such excess shall be
canceled automatically and, if previously paid, shall at such Lender's option
be applied to the outstanding amount of the Loans made hereunder or be refunded
to the Borrower. As used in this paragraph, the term "Highest Lawful Rate"
means the maximum lawful interest rate, if any, that at any time or from time
to time may be contracted for, charged, or received under the laws applicable
to such Lender which are presently in effect or, to the extent allowed by law,
under such applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now allow.
11.15 Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending party other than as a result of a disclosure
by any Lending Party prohibited by this Agreement, (g) in connection with any
litigation to which such Lending Party or any of its affiliates may be a party,
(h) to the extent necessary in connection with the exercise of any remedy under
this Agreement or any other Loan Document, and (i) subject to provisions
substantially similar to those contained in this Section 11.15, to any actual
or proposed participant or assignee.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day
and year first above written.
ICCE, INC.
By: /s/ Xxxxxxx Xxxx, Xx.
Name: Xxxxxxx Xxxx, Xx.
Title: President
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
Lending Office:
NationsBank, National Association
MD2-600-03-02
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Lending
