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EXHIBIT 10.4
The date of this agreement is February 20, 1998
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of February 20, 1998
By And Among
OFFICE DEPOT, INC.
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Syndication Agent,
NATIONSBANK, NATIONAL ASSOCIATION,
individually and as Documentation Agent
ROYAL BANK OF CANADA, individually and as Co-Agent,
CITIBANK, N.A., individually and as Co-Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent,
CORESTATES BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION,
FIFTH THIRD BANK, and
HIBERNIA NATIONAL BANK
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TABLES OF CONTENTS
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ARTICLE I DEFINITIONS; CONSTRUCTION...............................................................1
Section 1.1 DEFINITIONS...............................................................1
Section 1.2 ACCOUNTING TERMS AND DETERMINATION.......................................19
Section 1.3 OTHER DEFINITIONAL PROVISIONS............................................19
Section 1.4 EXHIBITS AND SCHEDULES...................................................20
ARTICLE II REVOLVING LOANS; LETTERS OF CREDIT.....................................................20
Section 2.1 COMMITMENT; USE OF PROCEEDS..............................................20
Section 2.2 NOTES; REPAYMENT OF PRINCIPAL............................................22
Section 2.3 VOLUNTARY REDUCTION OF REVOLVING
LOAN COMMITMENTS.........................................................22
Section 2.4 LETTERS OF CREDIT........................................................22
Section 2.5 MANNER OF ISSUANCE.......................................................23
Section 2.6 DRAWINGS UNDER LETTERS OF CREDIT.........................................23
Section 2.7 GENERAL PROVISIONS AS TO LETTERS
OF CREDIT................................................................24
Section 2.8 PARTICIPATION............................................................26
ARTICLE III LINE OF CREDIT LOANS...................................................................27
Section 3.1 LINE OF CREDIT LOAN COMMITMENT;
USE OF PROCEEDS..........................................................27
Section 3.2 NOTES; REPAYMENT OF PRINCIPAL............................................28
Section 3.3 VOLUNTARY REDUCTION OF LINE OF CREDIT
LOAN COMMITMENT..........................................................28
ARTICLE IV GENERAL LOAN TERMS.....................................................................28
Section 4.1 FUNDING NOTICES..........................................................28
Section 4.2 DISBURSEMENT OF FUNDS....................................................32
Section 4.3 INTEREST.................................................................33
Section 4.4 INTEREST PERIODS.........................................................35
Section 4.5 FEES.....................................................................36
Section 4.6 VOLUNTARY PREPAYMENTS OF BORROWINGS......................................37
Section 4.7 PAYMENTS, ETC............................................................38
Section 4.8 INTEREST RATE NOT ASCERTAINABLE, ETC.....................................41
Section 4.9 ILLEGALITY...............................................................41
Section 4.10 INCREASED COSTS..........................................................42
Section 4.11 LENDING OFFICES..........................................................44
Section 4.12 FUNDING LOSSES...........................................................44
Section 4.13 ASSUMPTIONS CONCERNING FUNDING OF
EURODOLLAR ADVANCES......................................................45
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Section 4.14 APPORTIONMENT OF PAYMENTS................................................45
Section 4.15 SHARING OF PAYMENTS, ETC.................................................45
Section 4.16 CAPITAL ADEQUACY.........................................................46
Section 4.17 BENEFITS TO GUARANTORS...................................................46
Section 4.18 LIMITATION ON CERTAIN PAYMENT
OBLIGATIONS..............................................................46
ARTICLE V CONDITIONS TO EXTENSIONS OF CREDIT.....................................................47
Section 5.1 CONDITIONS PRECEDENT TO
EXTENSION OF CREDIT......................................................48
Section 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT...................................51
ARTICLE VI REPRESENTATIONS AND WARRANTIES.........................................................52
Section 6.1 ORGANIZATION AND QUALIFICATION...........................................52
Section 6.2 CORPORATE AUTHORITY......................................................52
Section 6.3 FINANCIAL STATEMENTS.....................................................53
Section 6.4 TAX RETURNS..............................................................53
Section 6.5 ACTIONS PENDING..........................................................53
Section 6.6 REPRESENTATIONS; NO DEFAULTS.............................................53
Section 6.7 TITLE TO PROPERTIES; CAPITALIZED LEASES..................................54
Section 6.8 ENFORCEABILITY OF AGREEMENT..............................................54
Section 6.9 CONSENT..................................................................55
Section 6.10 USE OF PROCEEDS; FEDERAL RESERVE
REGULATIONS..............................................................55
Section 6.11 ERISA....................................................................55
Section 6.12 SUBSIDIARIES.............................................................56
Section 6.13 OUTSTANDING DEBT.........................................................56
Section 6.14 CONFLICTING AGREEMENTS...................................................56
Section 6.15 ENVIRONMENTAL MATTERS....................................................57
Section 6.16 POSSESSION OF FRANCHISES, LICENSES, ETC..................................58
Section 6.17 PATENTS, ETC.............................................................58
Section 6.18 GOVERNMENTAL CONSENT.....................................................58
Section 6.19 DISCLOSURE...............................................................59
Section 6.20 INSURANCE COVERAGE.......................................................59
Section 6.21 LABOR MATTERS............................................................59
Section 6.22 INTERCOMPANY LOANS; DIVIDENDS............................................60
Section 6.23 SECURITIES ACTS..........................................................60
Section 6.24 INVESTMENT COMPANY ACT; HOLDING COMPANY..................................60
Section 6.25 REGULATION G, ETC........................................................60
ARTICLE VII AFFIRMATIVE COVENANTS..................................................................60
Section 7.1 CORPORATE EXISTENCE, ETC.................................................61
Section 7.2 COMPLIANCE WITH LAWS, ETC................................................61
Section 7.3 PAYMENT OF TAXES AND CLAIMS, ETC.........................................61
Section 7.4 KEEPING OF BOOKS.........................................................61
Section 7.5 VISITATION, INSPECTION, ETC..............................................61
Section 7.6 INSURANCE; MAINTENANCE OF PROPERTIES.....................................62
Section 7.7 REPORTING COVENANTS......................................................62
Section 7.8 FINANCIAL COVENANTS......................................................67
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Section 7.9 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.................................67
Section 7.10 ADDITIONAL GUARANTORS....................................................68
Section 7.11 FINANCIAL STATEMENTS; FISCAL YEAR........................................68
Section 7.12 OWNERSHIP OF GUARANTORS..................................................68
ARTICLE VIII NEGATIVE COVENANTS................................................................68
Section 8.1 LIENS....................................................................68
Section 8.2 MERGERS, ACQUISITIONS, SALES, ETC........................................69
Section 8.3 INVESTMENTS, LOANS, ETC..................................................70
Section 8.4 TRANSACTIONS WITH AFFILIATES.............................................72
Section 8.5 OPTIONAL PREPAYMENTS.....................................................72
Section 8.6 CHANGES IN BUSINESS......................................................73
Section 8.7 ERISA....................................................................73
Section 8.8 ADDITIONAL NEGATIVE PLEDGES..............................................73
Section 8.9 LIMITATION ON PAYMENT RESTRICTIONS
AFFECTING CONSOLIDATED COMPANIES.........................................73
Section 8.10 ACTIONS UNDER CERTAIN DOCUMENTS..........................................73
ARTICLE IX EVENTS OF DEFAULT.................................................................74
Section 9.1 PAYMENTS.................................................................74
Section 9.2 COVENANTS WITHOUT NOTICE.................................................74
Section 9.3 OTHER COVENANTS..........................................................74
Section 9.4 REPRESENTATIONS..........................................................74
Section 9.5 NON-PAYMENTS OF OTHER INDEBTEDNESS.......................................74
Section 9.6 DEFAULTS UNDER OTHER AGREEMENTS..........................................74
Section 9.7 BANKRUPTCY...............................................................75
Section 9.8 ERISA....................................................................75
Section 9.9 MONEY JUDGMENT...........................................................76
Section 9.10 OWNERSHIP OF CREDIT PARTIES AND
PLEDGED ENTITIES.........................................................76
Section 9.11 CHANGE IN CONTROL OF BORROWER............................................76
Section 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS.....................................77
Section 9.13 ATTACHMENTS..............................................................77
ARTICLE X THE AGENTS........................................................................77
Section 10.1 APPOINTMENT OF AGENTS....................................................77
Section 10.2 NATURE OF DUTIES OF AGENTS...............................................78
Section 10.3 LACK OF RELIANCE ON THE AGENTS...........................................78
Section 10.4 CERTAIN RIGHTS OF THE AGENTS.............................................79
Section 10.5 RELIANCE BY AGENTS.......................................................79
Section 10.6 INDEMNIFICATION OF ADMINISTRATIVE AGENT..................................79
Section 10.7 THE AGENTS IN THEIR INDIVIDUAL CAPACITY..................................80
Section 10.8 HOLDERS OF NOTES.........................................................80
Section 10.9 SUCCESSOR AGENTS.........................................................80
ARTICLE XI MISCELLANEOUS.....................................................................81
Section 11.1 NOTICES..................................................................81
Section 11.2 AMENDMENTS, ETC..........................................................82
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Section 11.3 NO WAIVER; REMEDIES CUMULATIVE...........................................82
Section 11.4 PAYMENT OF EXPENSES, ETC.................................................83
Section 11.5 RIGHT OF SETOFF..........................................................85
Section 11.6 BENEFIT OF AGREEMENT.....................................................85
Section 11.7 GOVERNING LAW; SUBMISSION TO
JURISDICTION.............................................................88
Section 11.8 INDEPENDENT NATURE OF LENDERS' RIGHTS....................................89
Section 11.9 COUNTERPARTS.............................................................90
Section 11.10 EFFECTIVENESS; SURVIVAL..................................................90
Section 11.11 SEVERABILITY.............................................................90
Section 11.12 INDEPENDENCE OF COVENANTS................................................90
Section 11.13 CHANGE IN ACCOUNTING PRINCIPLES,
FISCAL YEAR OR TAX LAWS..................................................91
Section 11.14 HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT...................................91
Section 11.15 TIME IS OF THE ESSENCE...................................................91
Section 11.16 USURY....................................................................91
Section 11.17 CONSTRUCTION.............................................................91
Section 11.18 CONFIDENTIALITY..........................................................92
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SCHEDULES
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Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.13(a) Outstanding Indebtedness
Schedule 6.13(b) Defaults Under Existing
Indebtedness
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Patent, Trademark, License, and Other
Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 8.1 Existing Liens
EXHIBITS
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Exhibit A Form of Syndicate Revolving Credit Note
Exhibit B Form of Competitive Bid Revolving Credit Note
Exhibit C Form of Line of Credit Note
Exhibit D Form of Subsidiary Guaranty Agreement
Exhibit E Form of Closing Certificate
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Contribution Agreement
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REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
THIS REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT, dated as of
February 20, 1998 (the "Agreement") by and among OFFICE DEPOT, INC.
("Borrower"), a Delaware corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION ("SunTrust"), a national banking association, NATIONSBANK, NATIONAL
ASSOCIATION ("NationsBank"), a national banking association, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association ("Bank of
America"), ROYAL BANK OF CANADA ("Royal Bank"), a Canadian chartered bank,
CITIBANK, N.A. ("CitiBank"), a national banking association, THE FIRST NATIONAL
BANK OF CHICAGO ("First National"), a national banking association, CORESTATES
BANK, N.A., a national banking association, PNC BANK, NATIONAL ASSOCIATION, a
national banking association, FIFTH THIRD BANK, a national banking association,
and HIBERNIA NATIONAL BANK, a national banking association (collectively, the
"Lenders" and, individually, a "Lender"), SUNTRUST as Administrative Agent, BANK
OF AMERICA as Syndication Agent, NATIONSBANK as Documentation Agent, and ROYAL
BANK, CITIBANK and FIRST NATIONAL as Co-Agents for the Lenders.
W I T N E S S E T H:
-------------------
THAT for and in consideration of the mutual covenants made herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. As used in this Agreement, and in any
instrument, certificate, document or report delivered pursuant thereto, the
following terms shall have the following meanings (to be equally applicable to
both the singular and plural forms of the term defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest
Period for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR for
such Interest Period by (B) a percentage
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equal to 1 minus the then stated maximum rate (stated as a decimal) of all
reserves requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurodollar liabilities as defined in
Regulation D (or against any successor category of liabilities as defined in
Regulation D).
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, Central
Florida, National Association, as Administrative Agent for the Lenders hereunder
and under the other Credit Documents, and each successor administrative agent.
"ADVANCE" shall mean any principal amount advanced and
remaining outstanding at any time under the Revolving Loans or the Line of
Credit Loans, which Advance shall be made or outstanding as a Base Rate Advance
or Eurodollar Advance in the case of Syndicate Revolving Loans, which Advance
shall be made as Libor Bid Loans or Fixed Rate Bid Loans in the case of
Competitive Bid Revolving Loans, and which Advance shall be made or outstanding
as a Federal Funds Rate Advance in the case of Line of Credit Loans.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENTS" shall mean, collectively, the Administrative Agent,
the Syndication Agent and the Documentation Agent.
"AGREEMENT" shall mean this Revolving Credit and Line of
Credit Agreement, as originally executed and as it may be from time to time
supplemented, amended, restated, renewed or extended and in effect.
"APPLICABLE MARGIN" shall mean the number of basis points
designated below based on (a) the Borrower's Fixed Charge Coverage Ratio
("FCCR") and (b) the rating, whether actual or implied of the Borrower's senior
unsecured long-term debt by either or both of Xxxxx'x and S&P in effect on the
date of determination (the "Rating"):
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==================================================================================================================
Eurodollar
Rating: Margin/
Level S&P/Xxxxx'x FCCR Facility Fee Letter of
Credit Fee
==================================================================================================================
I Greater than or Greater than or 8.0 bp 17.0 bp
Equal to A-/A3 Equal to 2.75:1.0
II BBB+/Baa1 Lesser than 2.75:1.0 & 9.5 bp 18.0 bp
Greater than or
Equal to 2.50:1.0
III BBB/Baa2 Lesser than 2.50:1.0 & 11.5 bp 21.0 bp
Greater than or
Equal to 2.0:1.0
IV BBB-/Baa3 Lesser than 2.0:1.0 & 13.0 bp 24.5 bp
Greater than or
Equal to 1.75:1.0
V Lesser than Lesser than 1.75:1.0 18.5 xx 00.0 xx
XXX-/Xxx0
==================================================================================================================
PROVIDED, HOWEVER, that:
(a) The Applicable Margin shall be the LOWER of the margins
based on the Borrower's FCCR or the margin based on the Borrower's
Rating, provided they are no more than one Level apart and, if they are
more than one Level apart, the Applicable Margin shall be the margin
one Level below the higher of the two Levels;
(b) If the Ratings established by S&P and Xxxxx'x shall fall
within different Levels, the Applicable Margin shall be based upon the
lower Level, provided the Ratings are not more than one Level apart
and, if they are more than one Level apart, the Applicable Margin shall
be based on the Rating one Level below the higher of the two Levels;
(c) If any Rating established by S&P or Xxxxx'x shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the agency making such change;
(d) If S&P or Xxxxx'x shall change the basis on which ratings
are established, each reference to the Rating announced by S&P or
Xxxxx'x, as the case may be, shall refer to the then equivalent Rating
by S&P or Xxxxx'x, as the case may be; and
(e) If only one of S&P or Xxxxx'x shall have in effect
a Rating, the Applicable Margin shall be determined by
reference to the available Rating; and
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PROVIDED FURTHER, HOWEVER, that:
(f) The Applicable Margin in effect as of the date of
execution and delivery of this Agreement shall be as provided for in
Level III in the table above and shall remain in effect until such time
as the Applicable Margin may be adjusted as hereinafter provided; and
(g) So long as no Default or Event of Default has occurred and
is continuing under this Agreement, adjustments, if any, to the
Applicable Margin based on changes in the Borrower's FCCR as set forth
above shall be made and become effective upon receipt by the
Administrative Agent of the no default/compliance certificate as
provided in Section 7.7(c).
"ASSET VALUE" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of EXHIBIT F.
"BANKRUPTCY CODE" shall mean the Bankruptcy Code of 1978,
as amended and in effect from time to time (11 U.S.C. ss. 5101 ET SEQ.).
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates):
with respect to the Revolving Loans and Line of Credit Loans
the higher of (a) the rate which the Administrative Agent
designates from time to time to be its prime lending rate (as
in effect from time to time) or (b) the Federal Funds Rate (as
in effect from time to time) PLUS one-half of one percent
(0.50%) per annum. The Administrative Agent's prime lending
rate is a reference rate and does not necessarily represent
the lowest or best rate charged to customers; the
Administrative Agent may make commercial loans or other loans
at rates of interest at, above or below the Administrative
Agent's prime lending rate.
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"BASE RATE ADVANCE" shall mean an Advance made or outstanding
as a Syndicate Revolving Loan bearing interest based on the Base Rate.
"BASE RATE LOAN" shall mean any Loan hereunder which bears
interest at the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest Period or
the continuation or conversion of an existing Borrowing or Borrowings in whole
or in part.
"BUSINESS DAY" shall mean, with respect to Eurodollar Loans
and Libor Bid Loans, any day other than a day on which commercial banks are
closed or required to be closed for domestic and international business,
including dealings in Dollar deposits on the London Interbank Market, and with
respect to all Loans and matters, any day other than Saturday, Sunday and a day
on which commercial banks are required to be closed for business in Orlando,
Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease
obligations which have been or are required to be, in accordance with GAAP,
capitalized on the books of the lessee.
"CERCLA" has the meaning set forth in Section 6.15(a) of
this Agreement.
"CLOSING DATE" shall mean the date on or before Februaty 20,
1998, on which the initial Loans are made and the conditions set forth in
Section 5.1 are satisfied or waived in accordance with Section 11.2.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"COMMITMENT" shall mean, for any Lender at any time, its
Revolving Loan Commitment and, in addition, for SunTrust, it shall also mean its
Line of Credit Loan Commitment, as the case may be.
"COMMITMENT LETTER" shall mean that certain engagement letter
entered into by and among the Borrower, the Administrative Agent, the
Syndication Agent, BancAmerica Xxxxxxxxx Xxxxxxxx and SunTrust Capital Markets,
Inc. dated December 30, 1997.
"COMPETITIVE BID LENDER" shall mean a Lender making a
Competitive Bid Revolving Loan.
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"COMPETITIVE BID RATE" shall mean the interest rate charged by
a Lender on a Competitive Bid Revolving Loan.
"COMPETITIVE BID REVOLVING CREDIT NOTES" shall mean,
collectively, the promissory notes evidencing the Competitive Bid Revolving
Credit Loans in the form attached hereto as EXHIBIT B.
"COMPETITIVE BID REVOLVING LOAN" shall mean a Revolving Loan
made by a Lender on a Competitive Bid basis as provided herein, consisting of
either a Libor Bid Loan or a Fixed Rate Bid Loan.
"CONSOLIDATED COMPANIES" shall mean, collectively,
Borrower and all of its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of its Consolidated Net Income (Loss),
PLUS, to the extent deducted in determining Consolidated Net Income (Loss), (i)
provisions for taxes based on income and (ii) Consolidated Interest Expense.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of its Consolidated EBIT plus Consolidated
Rental Expense to the extent deducted in determining Consolidated Net Income
(Loss), determined on a consolidated basis.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal
period of Borrower, total interest expense (including without limitation,
interest expense attributable to capitalized leases) of Borrower and its
subsidiaries on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of Borrower and its subsidiaries on
a consolidated basis for such period (taken as a single accounting period);
PROVIDED THAT there shall be excluded therefrom (i) any items of gain or loss
resulting from the sale of assets other than in the ordinary course of business;
and (ii) the income (or loss) of any party accrued prior to the date such party
becomes a subsidiary of Borrower or is merged into or consolidated with Borrower
or any of its subsidiaries, or such party's assets are required by the Borrower
or any of its subsidiaries.
"CONSOLIDATED NET WORTH" shall mean as of the date of
determination, the Borrower's total shareholders' equity.
"CONSOLIDATED RENTAL EXPENSE" shall mean for any fiscal period
of Borrower, total operating lease expense of Borrower and its subsidiaries on a
consolidated basis.
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"CONSOLIDATED SUBSIDIARY" shall mean, as at any particular
time, any corporation included as a consolidated Subsidiary of Borrower in
Borrower's most recent financial statements furnished to its stockholders and
certified by Borrower's independent public accountants, provided that under then
GAAP approved by such independent public accountants, such corporation may
continue to be so included as a consolidated Subsidiary of Borrower in any
financial statements thereafter certified by such accountants.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"CONVERTIBLE SUBORDINATED DEBT" means Borrower's 5% Zero-
Coupon Convertible Subordinated Notes due December 11, 2007 in an aggregate
principal amount of $316,250,000 at maturity and Borrower's 4% Zero-Coupon
Convertible Subordinated Notes due November 1, 2008 in aggregate principal
amount of $345,000,000 at maturity.
"CREDIT DOCUMENTS" shall mean, collectively, the Agreement,
the Notes, the Letter of Credit Applications, the Guaranty Agreements, and all
other Guaranty Documents, if any.
"CREDIT PARTIES" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice
or lapse of time or both, would constitute an Event of Default.
"DEFAULT RATE" shall mean the higher of (i) Base Rate plus two
percent (2%), or (ii) the interest rate otherwise applicable to said amount
outstanding plus two percent (2%), but in no event shall such interest rate
exceed the highest lawful rate.
"DOCUMENTATION AGENT" shall mean NationsBank, National
Association, as Documentation Agent for the Lenders hereunder and under the
other Credit Documents, and each successor documentation agent.
"DOLLAR" AND "U.S. DOLLAR" and the sign "$" shall mean
lawful money of the United States of America.
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"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized
under the laws of the United States, or any state thereof, having total assets
in excess of $1,000,000,000 or any commercial finance or asset based lending
Affiliate of any such commercial bank and (ii) any Lender or any Affiliate of
any Lender.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, and having the force of laws, now or
hereafter in effect (including, without limitation, those with respect to
asbestos or asbestos containing material or exposure to asbestos or asbestos
containing material), relating to pollution or protection of the environment and
relating to public health and safety, including, without limitation, those
imposing liability or standards of conduct concerning (i) emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals or
industrial toxic or hazardous materials, substances or wastes, including without
limitation, any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment (including without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata), or (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law, and
(iii) underground storage tanks and related piping, and emissions, discharges
and releases or threatened releases therefrom, such Environmental Laws to
include, without limitation (i) the Clean Air Act (42 U.S.C. ss. 7401 ET SEQ.),
(ii) the Clean Water Act (33 U.S.C. ss. 1251 ET SEC.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 ET SEQ.), (iv) the Toxic
Substances Control Act (15 U.S.C. ss. 2601 ET SEQ.) and (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. ss. 9601 ET SEQ.).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group of
which that Person is a member and which is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"EURODOLLAR ADVANCE" shall mean an Advance made or outstanding
as a Syndicate Revolving Loan bearing interest based on the Adjusted LIBO Rate
plus the Applicable Margin.
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"EURODOLLAR LOAN" shall mean any Syndicate Revolving Loan
hereunder which bears interest based on the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning set forth in
Article IX.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person
(other than a Guarantor), the President, Executive Vice Presidents, Chief
Financial Officer, Treasurer, Secretary and any Person holding comparable
offices or duties, and with respect to a Guarantor, the President, Chief
Financial Officer or Treasurer and any Person holding comparable offices or
duties.
"EXTENSION OF CREDIT" shall mean the issuance of a Letter of
Credit or making of a Loan or the conversion of a Loan of one type into a Loan
of another type.
"FACILITY" or "FACILITIES" shall mean the Revolving Loan
Commitments and Loans or the Line of Credit Commitment and Loans as the context
may indicate.
"FACILITY FEE" shall mean the quarterly fee payable by the
Borrower to the Administrative Agent for the account of and distribution to the
Lenders pursuant to Section 4.5(a).
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative
Agent.
"FEDERAL FUNDS RATE ADVANCE" shall mean an Advance made or
outstanding as a Line of Credit Loan bearing interest based on the Federal Funds
Rate.
"FINAL MATURITY DATE" shall mean the date on which all
commitments have been terminated and all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
pursuant to the provisions of Article IX.
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"FIXED CHARGE COVERAGE RATIO" shall mean, as at the end of any
fiscal period of Borrower, the ratio of (A) Consolidated EBITR for such fiscal
period to (B) the sum of (i) Consolidated Interest Expense plus (ii)
Consolidated Rental Expense plus (iii) interest and other continuing program
fees (excluding initial closing fees) related to an accounts receivable
securitization program, each for such fiscal period.
"FIXED RATE BID LOAN" shall mean a Competitive Bid Revolving
Loan, bearing interest based on a fixed rate.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary not organized
under the laws of any of the fifty (50) states of the United States of America
or the District of Columbia, or that is operating entirely outside of the United
States.
"FUNDED DEBT" shall mean, without duplication, all
indebtedness for money borrowed, purchase money mortgages, capitalized leases,
the aggregate outstanding net investment of a purchaser under an accounts
receivable securitization program, conditional sales contracts and similar title
retention debt instruments, including any current maturities of such
indebtedness, which by its terms matures more than one year from the date of any
calculation thereof and/or which is renewable or extendable at the option of the
obligor to a date beyond one year from such date. The calculation of Funded Debt
shall include, without duplication, all Funded Debt of the Borrower and its
Subsidiaries, plus all Funded Debt of other entities or Persons, other than
Subsidiaries, which has been guaranteed by the Borrower or any Subsidiary or
which is supported by a letter of credit issued for the account of the Borrower
or any Subsidiary. Funded Debt shall also include the redemption amount with
respect to any stock of the Borrower or its Subsidiaries required to be redeemed
within the next twelve months.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (a) to purchase or repurchase any such primary
obligation, (b) to advance or supply funds (i) for the purchase or payment of
any such primary
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obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
condition of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation, or (d) to indemnify the owner of such primary obligation against
loss in respect thereof.
"GUARANTORS" shall mean, collectively, The Office Club, Inc.,
a California corporation; Xxxxxxx Office Products Corporation, a Delaware
corporation; Xxxxxxx, Inc., a Delaware corporation; OD International, Inc., a
Delaware corporation; ODO, Inc., a Florida corporation; and all other Material
Subsidiaries, and their respective successors and permitted assigns.
"GUARANTY AGREEMENTS" shall mean, collectively, the Subsidiary
Guaranty Agreement executed by each of the Guarantors in favor of the Lenders
and the Administrative Agent, substantially in the form of EXHIBIT D as the same
may be amended, restated or supplemented from time to time, and the Contribution
Agreement executed by each of the Guarantors, substantially in the form of
EXHIBIT G as the same may be amended, restated or supplemented from time to
time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
Agreements, and each other guaranty agreement as the same may be amended,
restated, or supplemented from time to time, and the Contribution Agreements
executed by each of the Guarantors, as the same may be amended, restated or
supplemented from time to time.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that
term in CERCLA.
"INDEBTEDNESS" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all rental obligations under leases required
to be capitalized under GAAP; (iii) all Guaranteed Indebtedness of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar agreements
or combinations thereof.
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"INTERCOMPANY LOAN DOCUMENTS" shall mean, collectively, the
promissory notes and all related loan, subordination, and other agreements, to
the extent that they exist, relating in any manner to the Intercompany Loans.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans
more particularly described on SCHEDULE 6.22 and (ii) those loans or other
extensions of credit made by any Consolidated Company to another Consolidated
Company or as may otherwise be approved in writing by the Administrative Agent
and the Required Lenders.
"INTEREST PERIOD" shall mean (i) such periods agreed upon
between Borrower and Lenders making Competitive Bid Revolving Loans, and (ii)
with respect to Eurodollar Advances, the period of 1, 2, 3 or 6 months selected
by the Borrower, in either case pursuant to the terms of the credit facility and
subject to customary adjustments in duration; provided, that (a) the first day
of an Interest Period must be a Business Day, (b) any Interest Period that would
otherwise end on a day that is not a Business Day for Eurodollar Loans shall be
extended to the next succeeding Business Day for Eurodollar Loans, unless such
Business Day falls in the next calendar month, in which case the Interest Period
shall end on the next preceding Business Day for Eurodollar Loans, and (c)
Borrower may not elect an Interest Period which would extend beyond the Final
Maturity Date.
"INVESTMENT" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDERS" shall mean SunTrust, the other banks
and lending institutions listed on the signature pages hereof, and each assignee
thereof, if any, pursuant to Section 11.6.
"LENDING INSTALLATION" shall mean any office, branch,
subsidiary or affiliate of any Lender.
"LENDING OFFICE" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the
Administrative Agent with respect to each Type of Loan.
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"LETTER OF CREDIT" means a Standby Letter of Credit, a
Revolving Trade Letter of Credit, or any combination of the foregoing, as the
context may require.
"LETTER OF CREDIT APPLICATION" means an application to the
Administrative Agent for the issuance of a Letter of Credit in form and
substance satisfactory to the Administrative Agent.
"LETTER OF CREDIT OBLIGATION" means, in respect of each Letter
of Credit, the undrawn face amount of such Letter of Credit, plus the aggregate
amount of all unreimbursed draws in respect of such Letter of Credit.
"LETTER OF CREDIT OBLIGATIONS" means the sum of each
Letter of Credit Obligation.
"LEVERAGE RATIO" shall mean the ratio, expressed as a
percentage, of Funded Debt to Total Capitalization for the Consolidated
Companies.
"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time, on the
day that is two London banking days prior to the first day of the Interest
Period. If at least two such rates appear on the Reuters Screen LIBOR Page, the
rate for that Interest Period will be the arithmetic mean of such rates,
rounded, if necessary, to the next higher 1/16 of 1.0%; and in either case as
such rates may be adjusted for any applicable reserve requirements. If the
foregoing rate is unavailable from the Reuters Screen for any reason, then such
rate shall be determined by the Administrative Agent from Telerate or, if such
rate is also unavailable on such service, then on any other interest rate
reporting service of recognized standing designated in writing by the
Administrative Agent to Borrower and the Lenders; in any such case rounded, if
necessary, to the next higher 1/16 of 1.0%, if the rate is not such a multiple.
"LIBOR BID LOAN" shall mean a Competitive Bid Revolving Loan,
bearing interest based on LIBOR plus (or minus) a margin.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue bonds
or pollution control revenue bonds, and the filing of or
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agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction.
"LINE OF CREDIT COMMITMENT" shall mean at any time for
SunTrust, Twenty-Five Million Dollars ($25,000,000.00), as the same may be
increased or decreased from time to time as a result of any reduction thereof
pursuant to Section 3.3, any assignment thereof pursuant to Section 11.6, or any
amendment thereof pursuant to Section 11.2.
"LINE OF CREDIT LOANS" shall mean the line of credit loans
made to Borrower by SunTrust pursuant to Section 3.1.
"LINE OF CREDIT NOTE" shall mean the promissory note issued by
Borrower to SunTrust substantially in the form of EXHIBIT C, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed or extended.
"LOANS" shall mean, collectively, the Revolving Loans and
the Line of Credit Loans.
"MARGIN REGULATIONS" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
"MATERIALLY ADVERSE EFFECT" shall mean a material adverse
effect upon, or a material adverse change in, any of the (i) business, results
of operations, properties, or financial condition of the Consolidated Companies
taken as a whole, (ii) legality, validity, binding effect or enforceability of
any Credit Document, or (iii) ability of the Credit Parties to perform their
obligations under the Credit Documents.
"MATERIAL SUBSIDIARY" shall mean (i) each Credit Party other
than Borrower and (ii) each other Subsidiary of Borrower, now existing or
hereafter established or acquired, that at any time prior to the Final Maturity
Date has or acquires total assets in excess of $50,000,000 or that accounted for
or produced more than 10% of the Consolidated EBITR of Borrower on a
consolidated basis during any of the three most recently completed fiscal years
of Borrower.
"MAXIMUM LETTER OF CREDIT AMOUNT" shall mean
$50,000,000.00.
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"MOODY'S" shall mean Xxxxx'x Investors Service, Inc. and
its successors and assigns.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTE" shall mean any of the Revolving Credit Notes or the
Line of Credit Note, either as originally executed or as the same may be from
time to time supplemented, modified, amended, renewed or extended.
"NOTICE OF COMPETITIVE BID BORROWING" shall have the meaning
provided in Section 4.1.
"NOTICE OF BORROWING" shall have the meaning provided in
Section 4.1.
"NOTICE OF CONTINUATION/CONVERSION" shall have the
meaning provided in Section 4.1.
"OBLIGATIONS" shall mean all amounts owing to the
Administrative Agent or any Lender pursuant to the terms of this Agreement or
any other Credit Document, including without limitation, all Loans (including
all principal and interest payments due thereunder), fees, expenses,
indemnification and reimbursement payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings thereof.
"PERMITTED LIENS" shall mean those Liens expressly permitted
by Section 8.1.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
and any successor thereto.
"PERSON" shall mean and shall include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
association, a government or any department or agency thereof and any other
entity whatsoever.
"PLAN" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Borrower or
an ERISA Affiliate, which provides benefits or compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
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(i) EXECUTIVE ARRANGEMENTS - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust", or other executive
compensation plan, program, contract, arrangement or practice;
(ii) ERISA PLANS - any "employee benefit plan" as defined in
Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership
plan, Multiemployer Plan, or any plan, fund, program, arrangement or
practice providing for medical (including post-retirement medical),
hospitalization, accident, sickness, disability, or life insurance
benefits;
(iii) OTHER EMPLOYEE FRINGE BENEFITS - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"PRO RATA SHARE" shall mean, with respect to the Commitment of
each Lender, each Letter of Credit and each Syndicate Revolving Loan or Line of
Credit Loan to be made by and each payment (including, without limitation, any
payment of principal, interest or fees) to be made to each Lender, the
percentage designated as such Lender's Pro Rata Share of such Commitment, such
Loans, Letter of Credit or such payments, as applicable, set forth under the
name of such Lender on the respective signature page for such Lender, in each
case as such Pro Rata Share may change from time to time as a result of
assignments or amendments made pursuant to this Agreement.
"REFINANCED INDEBTEDNESS" shall mean the outstanding balance
under the $300,000,000 revolving credit pursuant to the Revolving Credit and
Line of Credit Agreement dated as of September 30, 1993 by and among Office
Depot, Inc., the lenders party thereto and SunTrust Bank, Central Florida,
National Association, as Agent, as amended.
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding at
least fifty-one per cent (51%) of the then aggregate amount of the Revolving
Loan Commitments and the Line of Credit Commitments.
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"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT NOTES" shall mean, collectively, the
promissory notes evidencing the Revolving Loans in the form attached hereto as
EXHIBIT A and EXHIBIT B.
"REVOLVING LOANS" shall mean, collectively, the revolving
credit loans made to Borrower by the Lenders pursuant to Section 2.1.
"REVOLVING LOAN COMMITMENT" shall mean, at any time for any
Lender, the amount of such commitment set forth opposite such Lender's name on
the signature pages hereof, as the same may be increased or decreased from time
to time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans and
Letter of Credit Obligations.
"REVOLVING PERIOD" shall mean the period commencing on the
date hereof and ending on the occurrence of (i) an Event of Default (unless
waived or cured) or (ii) the Termination Date, whichever first occurs.
"REVOLVING TRADE LETTER OF CREDIT" means any Letter of Credit
having terms described in Section 2.4(a) and issued pursuant to a Letter of
Credit Application.
"REVOLVING TRADE LETTER OF CREDIT OBLIGATIONS" means the sum
of the undrawn face amount of each Revolving Trade Letter of Credit plus the
aggregate amount of all drawings not paid pursuant to Section 2.6(b) in respect
of each Revolving Trade Letter of Credit.
"S & P" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies and its successors and assigns.
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"SENIOR FUNDED DEBT" shall mean all Funded Debt, less
Subordinated Debt and less redemption amount with respect to any stock of the
Borrower or its Subsidiaries required to be redeemed within the next twelve
months.
"STANDBY LETTER OF CREDIT" means any letter of credit having
terms described in Section 2.4(b) and issued in response to a Letter of Credit
Application.
"STANDBY LETTER OF CREDIT OBLIGATIONS" shall mean the sum of
the undrawn face amount of each Standby Letter of Credit plus the aggregate
amount of all drawings not paid pursuant to Section 2.6(b) in respect of each
Standby Letter of Credit.
"SUBORDINATED DEBT" shall mean Indebtedness of Borrower and
its Subsidiaries subordinated to all obligations of Borrower and its
Subsidiaries or any other Credit Party arising under this Agreement, the Notes,
and the Guaranty Agreements on terms and conditions satisfactory in all respects
to the Administrative Agent and the Required Lenders, including without
limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Administrative Agent and
Required Lenders, including but not limited to the Borrower's Convertible
Subordinated Debt.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"SYNDICATE REVOLVING CREDIT NOTES" shall mean, collectively,
the promissory notes evidencing the Syndicate Revolving Loans in the form
attached hereto as EXHIBIT A.
"SYNDICATE REVOLVING LOAN" shall mean, collectively, the
Revolving Loans made to Borrower hereunder other than Competitive Bid Revolving
Loans.
"TANGIBLE NET WORTH" shall mean, as of the date of
determination, the Borrower's total Consolidated Net Worth minus any goodwill or
other intangibles as determined in accordance with GAAP.
"TAXES" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or
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other charges of whatever nature, including without limitation, income,
receipts, excise, property, sales, transfer, license, payroll, withholding,
social security and franchise taxes now or hereafter imposed or levied by the
United States, or any state, local or foreign government or by any department,
agency or other political subdivision or taxing authority thereof or therein and
all interest, penalties, additions to tax and similar liabilities with respect
thereto.
"TELERATE" shall mean, when used in connection with any
designated page and "LIBOR," the display page so designated on the Dow Xxxxx
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to "LIBOR").
"TERMINATION DATE" shall mean February 20, 2003.
"TOTAL CAPITALIZATION" shall mean the sum of Funded Debt
and Consolidated Net Worth.
"TOTAL COMMITMENT" shall mean the sum of the Lenders'
Commitments as such Total Commitment may be reduced by voluntary reduction,
prepayment or nonrenewal of a Lender's Commitment as provided herein.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances or Eurodollar Advances, and any Advances made pursuant to the
Competitive Bid Facility.
"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the
stock or ownership interest of every class of which, except directors'
qualifying shares, shall, at the time as of which any determination is being
made, be owned by Borrower either directly or indirectly.
SECTION 1.2 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(a) Except as otherwise specified herein, references herein to any
agreement or contract defined or referred to herein shall be
deemed a reference to any such agreement or contract (and in
the case of any instrument, any other instrument issued in
substitution therefor) as the terms
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thereof may have been or may be amended, supplemented, waived
or otherwise modified from time to time.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule, Exhibit and
like references are to this Agreement unless otherwise
specified.
(c) The singular pronoun, when used in this Agreement, shall
include the plural and neuter shall include the masculine and
the feminine.
(d) All terms defined in this Agreement shall have the defined
meanings when used in any Note or, except as otherwise
expressly stated herein, any certificate, opinion, or other
document delivered pursuant hereto.
SECTION 1.4 EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS; LETTERS OF CREDIT
SECTION 2.1 COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees from time to time on and after the
Closing Date, but during the Revolving Period, (i) to make the
Revolving Loans as provided in this Section 2.1, and (ii) to purchase
participations in Standby Letters of Credit and Revolving Trade Letters
of Credit issued by the Administrative Agent for the account of the
Borrower as provided in Section 2.8. Borrower shall be entitled to
repay and reborrow Revolving Loans in accordance with the provisions
hereof.
(b) The sum of (i) the aggregate unpaid principal amount of
any Lender's Syndicate Revolving Loans outstanding, plus (ii) the
aggregate amount of such Lender's participations in Letter of Credit
Obligations, shall not exceed at any time such Lender's Revolving Loan
Commitment.
(c) The sum of (i) the aggregate unpaid principal amount of
all Revolving Loans, plus (ii) the aggregate amount of all Standby
Letter of Credit Obligations and
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Revolving Trade Letter of Credit Obligations, shall not exceed at any
time the total Revolving Loan Commitments for all Lenders.
(d) The aggregate amount of all Standby Letter of Credit
Obligations and Revolving Trade Letter of Credit Obligations shall not
exceed at any time the Maximum Letter of Credit Amount.
(e) Each Revolving Loan (other than Competitive Bid Revolving
Loans) shall, at the option of Borrower, be made or continued as, or
converted into, part of one or more Borrowings that shall consist
entirely of Syndicate Revolving Loans (as Base Rate Advances or
Eurodollar Advances). The aggregate principal amount of each Borrowing
of Syndicate Revolving Loans shall be not less than $1,000,000 or a
greater integral multiple of $100,000. Each Competitive Bid Revolving
Loan shall be not less than $1,000,000 or a greater integral multiple
of $100,000. At no time shall the number of Borrowings of Syndicate
Revolving Loans comprised of Eurodollar Advances outstanding under this
Article II exceed twelve (12); provided that, for the purpose of
determining the minimum amount for Borrowings resulting from
conversions or continuations, all Borrowings of Base Rate Advances
under this Facility shall be considered as one Borrowing. The parties
hereto agree that (i) the aggregate principal balance of the Revolving
Loans (including the Competitive Bid Revolving Loans) of the Lenders as
a group shall not exceed the sum of the Revolving Loan Commitment for
each Lender, (ii) no Lender shall be obligated to make Syndicate
Revolving Loans in excess of the Revolving Loan Commitment of such
Lender, (iii) no Lender shall be obligated hereunder to extend
Competitive Bid Revolving Loans or to make quotes for such Loans, (iv)
a Lender may elect, in its discretion, to extend Competitive Bid
Revolving Loans which, notwithstanding the Syndicate Revolving Loans
and Letter of Credit Obligations of such Lender, exceed the Revolving
Loan Commitment of such Lender and (v) the Competitive Bid Revolving
Loans (if any) extended by a Lender shall not, while outstanding,
reduce the Commitment of such Lender to make Syndicate Revolving Loans
or to purchase participations in Letter of Credit Obligations based
upon the Lender's Pro Rata Share of Revolving Loan Commitment even if
such purchase or Syndicate Revolving Loan would exceed the amount of
such Lender's Revolving Loan Commitment set forth opposite such
Lender's name on the signature page hereof.
(f) The proceeds of Revolving Loans shall be used
solely for working capital and for other general
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corporate purposes, including acquisitions and capital
expenditures of the Consolidated Companies.
SECTION 2.2 NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Syndicate Revolving Loans and the Competitive Bid
Revolving Loans to each Lender shall be evidenced by the records of the
Administrative Agent and such Lender and by the Revolving Credit Notes
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(b) All outstanding principal amounts under the
Revolving Loans shall be due and payable in full on the
Termination Date.
SECTION 2.3 VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS. Upon at
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Revolving Loan Commitments, in part or in
whole, provided that (i) any such termination shall apply to proportionately and
permanently reduce the Revolving Loan Commitments of each of the Lenders, (ii)
any partial termination pursuant to this Section 2.3 shall be in an amount of at
least $1,000,000 and integral multiples of $100,000, and (iii) no such reduction
shall be permitted if prohibited or without payment of all costs required to be
paid hereunder with respect to a prepayment. If the aggregate outstanding amount
of the Revolving Loans and the Letter of Credit Obligations exceeds the amount
of the Revolving Loan Commitments as so reduced, Borrower shall immediately
repay the Revolving Loans for the ratable account of the Lenders by an amount
equal to such excess, together with all accrued but unpaid interest on such
excess amount and any amounts due under Section 4.12 hereof.
SECTION 2.4 LETTERS OF CREDIT. Upon the terms and subject to the
conditions of this Agreement, from the Closing Date to but excluding the
Termination Date, the Administrative Agent shall issue (i) Revolving Trade
Letters of Credit for the account of the Borrower or the joint account of the
Borrower and any Guarantor, and (ii) Standby Letters of Credit for the account
of the Borrower or the joint account of the Borrower and any Guarantor, and each
Lender shall thereupon be deemed to have purchased a participation in each such
Letter of Credit as provided in Section 2.8.
(a) REVOLVING TRADE LETTERS OF CREDIT. Each Revolving Trade
Letter of Credit shall (i) be payable at sight or upon the expiration of such
other period not to exceed sixty (60) days as provided in said Revolving Trade
Letter of Credit, (ii) have an
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expiration date no later than the earlier of (A) 180 days after the date of
issuance of such Letter of Credit or (B) the Termination Date, (iii) be used
only for the shipment or importation of inventory, and the payment of the
purchase price thereof (inclusive, at the election of the Borrower, of freight
and insurance charges, Tariffs, taxes, customs duties and other like charges),
and (iv) in the case of a Revolving Trade Letter of Credit issued for the joint
account of the Borrower and a Guarantor, indicate either the Borrower and the
Guarantor jointly, or only such Guarantor, as the account party on the face of
the Letter of Credit.
(b) STANDBY LETTERS OF CREDIT. Each Standby Letter of Credit
shall (i) have an expiration date not later than the earlier of (A) 365 days
after the date of issuance of such Letter of Credit (which may include any
provision providing for the automatic extension of the term of such Letter of
Credit for an additional period of time beyond 365 days after the date of
issuance) or (B) the Termination Date and (ii) be used for any corporate purpose
allowed under this Agreement including, without limitation, to secure any surety
bond or any self-insurance program of the Borrower.
SECTION 2.5 MANNER OF ISSUANCE. The Borrower shall forward a Letter of
Credit Application in the appropriate form to the Administrative Agent at the
address specified on the Letter of Credit Application prior to noon (Orlando,
Florida time) at least two Business Days before the requested date of issuance
of a Letter of Credit. The Administrative Agent shall give each Lender a written
(which may be by telecopier) report of all Letters of Credit outstanding
hereunder on a monthly basis. In the event there is a conflict between any
provision in the Letter of Credit Application and this Agreement, the terms and
provisions of this Agreement will prevail.
SECTION 2.6 DRAWINGS UNDER LETTERS OF CREDIT.
(a) Upon receipt by the Administrative Agent of any draft
upon, or other notice of drawing under, a Letter of Credit, the Administrative
Agent shall promptly give the Borrower written or telephone notice of the amount
of such draft, of the Letter of Credit against which it is drawn and of the date
upon which the Administrative Agent proposes to honor such draft.
(b) Subject to the following sentence, the Borrower shall pay
to the Administrative Agent for the ratable account of the Lenders the amount of
each drawing under a Letter of Credit on the date of such drawing. Subject to
the requirement contained in Section 2.1, the Borrower may elect to repay the
amount of such drawing with the proceeds of a Syndicate Revolving Loan by
delivering a Notice of Borrowing complying with Section 4.1 hereof.
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(c) The amount of any drawing under a Letter of Credit that is
not paid on the date of drawing pursuant to subsection (b) of this Section 2.6
shall bear interest, payable on demand, from the date of such drawing until
paid, at a rate per annum equal to the Default Rate.
(d) The Borrower agrees that it shall be indebted to each
Lender in an amount equal to the amount of each drawing paid by the
Administrative Agent for the account of such Lender in accordance with the
provisions of this Section 2.6.
SECTION 2.7 GENERAL PROVISIONS AS TO LETTERS OF CREDIT.
(a) LIMITATION ON ADMINISTRATIVE AGENT'S DUTY TO ISSUE. The
Administrative Agent shall have no obligation to issue: (i) any Letter of Credit
if the aggregate undrawn face amount of Letters of Credit outstanding, after
giving effect to the issuance of such Letter of Credit, would exceed any limit
imposed on the Administrative Agent or any Lender by, or if the issuance of such
Letter of Credit would otherwise cause a violation of, applicable law or any
regulatory directive, interpretation or request, to which the Administrative
Agent or such Lender is subject; or (ii) any Revolving Trade Letter of Credit or
Standby Letter of Credit if such issuance would cause the Maximum Letter of
Credit Amount to be exceeded; or (iii) any Letter of Credit if the issuance
thereof would exceed the limits provided in Section 2.1 above.
(b) BORROWER'S OBLIGATIONS ABSOLUTE. The obligation of the
Borrower to reimburse the Administrative Agent for the account of the Lenders,
for each drawing under a Letter of Credit shall be irrevocable, shall not be
subject to any qualification or exception whatsoever and shall be binding in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense
or right which the Borrower may have at any time against a beneficiary of any
Letter of Credit or any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, the Lenders
or any other Person, whether in connection with this Agreement, or any Letter of
Credit, the transactions contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient (unless, in each case,
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manifestly so) in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of this Agreement or the
other Credit Documents;
(v) any failure of the Administrative Agent to
provide notice to the Borrower of any drawing under any Letter of Credit; or
(vi) the occurrence or continuance of any Default.
(c) LIMITATION OF LIABILITY WITH RESPECT TO LETTERS OF CREDIT.
As among the Borrower, any Guarantors, the Lenders, and the Administrative
Agent, the Borrower and the Guarantors assume all risks of the acts and
omissions of, or misuse of any Letter of Credit by the beneficiaries of such
Letter of Credit. Without limiting the foregoing, neither the Administrative
Agent nor the Lenders shall be responsible for:
(i) subject to clause (c)(iii), the form, validity,
sufficiency, accuracy, genuineness or legal effect of any draft, demand,
application or other documents submitted by any Person in connection with any
Letter of Credit (but not including the Letter of Credit itself), even if such
document should in fact prove to be in any and all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(ii) the validity, genuineness or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of a Letter of
Credit to comply fully with the conditions required in order to draw upon such
Letter of Credit to the extent that the documents presented in connection with a
drawing manifestly comply with the terms of the Letter of Credit provided that
the payment by the Administrative Agent does not constitute gross negligence or
wilful misconduct;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher;
(v) errors in interpretations of technical terms;
(vi) any loss or delay in the transmission or
otherwise of any document required to make a drawing under any Letter of Credit
or with respect to the proceeds thereof;
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(vii) the misapplication by the beneficiary of a
Letter of Credit or of the proceeds of any drawing under such Letter of Credit;
or
(viii) any consequences arising from causes beyond
the control of the Administrative Agent or the Lenders, including, without
limitation, any act or omission, rightfully or wrongfully of any present or
future governmental authority.
None of the above circumstances shall affect, impair or prevent the vesting of
any of the Administrative Agent's and the Lenders' rights or powers under this
Section.
SECTION 2.8 PARTICIPATION.
(a) Simultaneously with the issuance by the Administrative
Agent of any Letter of Credit, each Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Administrative Agent,
without recourse or warranty, an undivided interest and participation in such
Letter of Credit (including, without limitation, all obligations of the Borrower
with respect thereto) and any security therefor or Guaranty pertaining thereto,
equal to such Lender's Pro Rata Share of such Letter of Credit.
(b) Each Lender hereby agrees that it shall pay to the
Administrative Agent, prior to 12:00 noon (local time for the Administrative
Agent) on the date of each Letter of Credit drawing such Lender's Pro Rata Share
of such Letter of Credit drawing; PROVIDED, that if the Borrower should pay in
full or in part any Letter of Credit drawing on the date thereof with the
proceeds of a Revolving Loan, the obligation of each Lender to pay to the
Administrative Agent pursuant to this Section with respect to such drawing shall
be reduced by an amount equal to such Lender's Pro Rata Share of such payment by
the Borrower that is received by the Administrative Agent. Amounts paid in
excess of the net amount so owed shall promptly be refunded by the
Administrative Agent to such Lender.
(c) The obligation of each Lender to pay to the Administrative
Agent its Pro Rata Share of each Letter of Credit drawing, or of the amount
thereof not repaid by the Borrower as described above, shall be irrevocable,
unconditional, shall not be subject to any qualification or exception whatsoever
and shall be binding in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement;
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(ii) the existence of any claim, set-off, defense
or other right which the Borrower or any Lender may have at any time against the
other, the Administrative Agent, any Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transactions;
(iii) any draft or any other document presented
under this Agreement proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of this Agreement; or
(v) the occurrence or continuance of any Default.
(d) If any Lender shall fail to pay the amount of its
participation in a Letter of Credit drawing on the date such amount is due in
accordance with subparagraph (b) above, the Administrative Agent shall be deemed
to have advanced funds on behalf of such Lender. Each such advance shall be
secured by such Lender's participation interest, and the Administrative Agent
shall be subrogated to such Lender's rights hereunder in respect thereof. Such
advance may be repaid by application by the Administrative Agent of any payment
which such Lender is otherwise entitled to receive under this Agreement. Any
amount not paid by such Lender to the Administrative Agent hereunder shall bear
interest for each day from the day such payment was due until such payment shall
be paid in full at a rate per annum equal to the highest rate then payable by
the Borrower under this Agreement.
ARTICLE III
LINE OF CREDIT LOANS
SECTION 3.1 LINE OF CREDIT LOAN COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set
forth, SunTrust agrees to make to Borrower from time to time on and
after the Closing Date, but during the Revolving Period, Line of Credit
Loans in an aggregate amount outstanding at any time not to exceed
SunTrust's Line of Credit Loan Commitment. Borrower shall be entitled
to repay and reborrow Line of Credit Loans in accordance with the
provisions hereof.
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(b) Each Line of Credit Loan shall consist entirely of Federal
Funds Rate Advances. The principal amount of each Line of Credit Loan
shall be not less than $1,000,000 or a greater integral multiple of
$100,000.
(c) The proceeds of Line of Credit Loans shall be used (i) to
fund daily swings in the cash position of the Borrower and (ii) for
other general corporate purposes.
SECTION 3.2 NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Line of Credit Loans to SunTrust shall be evidenced by
the records of the Administrative Agent and SunTrust and by the Line of
Credit Note payable to SunTrust (or the assignor of such Lender)
completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Line of Credit
Loans shall be due and payable in full on the Termination Date.
SECTION 3.3 VOLUNTARY REDUCTION OF LINE OF CREDIT LOAN COMMITMENT. Upon
at least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Line of Credit Loan Commitment, in part or
in whole, provided that (i) any such termination shall apply to permanently
reduce the Line of Credit Commitment, (ii) any partial termination pursuant to
this Section 3.3 shall be in an amount of at least $1,000,000 and integral
multiples of $100,000, and (iii) no such reduction shall be permitted if
prohibited or without payment of all costs required to be paid hereunder with
respect to a prepayment. If the aggregate outstanding amount of the Line of
Credit Loans exceeds the amount of the Line of Credit Commitment as so reduced,
Borrower shall immediately repay the Line of Credit Loans by an amount equal to
such excess, together with all accrued but unpaid interest on such excess
amount.
ARTICLE IV
GENERAL LOAN TERMS
SECTION 4.1 FUNDING NOTICES.
(a) (i) Whenever Borrower desires to make a Borrowing
consisting of Syndicate Revolving Loans or a Line of Credit Loan (other
than one resulting from a
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conversion or continuation pursuant to Section 4.1(b)(i)), it shall
give the Administrative Agent prior written notice (or telephonic
notice confirmed in writing) of such Borrowing (a "Notice of
Borrowing"), such Notice of Borrowing to be given prior to 12:00 noon
(local time for the Administrative Agent) at its Payment Office (A) the
same Business Day of the requested date of such Borrowing in the case
of Revolving Loans comprised of Base Rate Advances, (B) three Business
Days prior to the requested date of such Borrowing in the case of
Eurodollar Advances, and (C) the same Business Day of the requested
date of such Borrowing in the case of Line of Credit Loans. Notices
received after 12:00 noon shall be deemed received on the next Business
Day. Each Notice of Borrowing shall be irrevocable and shall specify
whether such Borrowing will be a Syndicate Revolving Loan or Line of
Credit Loan, the aggregate principal amount of the Borrowing, the date
of Borrowing (which shall be a Business Day), if the Borrowing is a
Syndicate Revolving Loan, whether the Borrowing is to consist of Base
Rate Advances or Eurodollar Advances and (in the case of Eurodollar
Advances) the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing
consisting of a Competitive Bid Revolving Loan (other than one
resulting from a conversion or continuation pursuant to Section
4.1(b)(ii)), it shall give the Administrative Agent prior written
notice by facsimile not later than 10:00 A.M. (local time for the
Administrative Agent) (a "Notice of Competitive Bid Borrowing") not
less than three Business Days prior to the requested date of such
Borrowing in the case of Libor Bid Loans and one Business Day prior to
the requested date of such Borrowing in the case of Fixed Rate Bid
Loans and shall request that the Lenders provide Competitive Bid Rates
for Interest Periods of not less than seven (7) days identified by
Borrower. The Administrative Agent shall give the Lenders said "Notice
of Competitive Bid Borrowing" not later than 11:00 A.M. (local time for
the Administrative Agent) on the same Business Day such notice is
received from Borrower. Alternatively, at Borrower's option, said
Notice of Competitive Bid Borrowing shall be furnished directly to the
Lenders. Notices furnished directly to the Lenders must be delivered by
facsimile not later than 11:00 A.M. (local time for the Administrative
Agent) not less than three Business Days prior to the requested date of
such Borrowing in the case of Libor Bid Loans and one Business Day
prior to the requested date of such Borrowing in the case of Fixed Rate
Bid Loans. Each Lender in its discretion may, but shall not be
obligated to, submit an
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irrevocable quote to the Administrative Agent or Borrower, whichever is
applicable, in connection with such request. Each Lender shall give the
Administrative Agent or Borrower its Competitive Bid Rates for the
Interest Periods identified by the Borrower not later than 9:30 A.M.
(local time for the Administrative Agent) two Business Days prior to
the requested date of such Borrowing in the case of Libor Bid Loans and
not later than 9:30 A.M. (local time for the Administrative Agent) on
the requested date of such Borrowing in the case of Fixed Rate Bid
Loans. If the Competitive Bid Rates are given to the Administrative
Agent, the Administrative Agent shall give such Competitive Bid Rates
to the Borrower no later than 10:00 A.M. (local time for the
Administrative Agent) on the same day it receives such Competitive Bid
Rates. In the event such Notice of Competitive Bid Borrowing is
furnished to the Administrative Agent and the Administrative Agent
wishes to submit a Competitive Bid Rate, then the Administrative Agent
shall so submit its Competitive Bid Rate to Borrower not later than
5:00 P.M. (local time for the Administrative Agent) the same day of
receipt of said Notice of Competitive Bid Borrowing and prior to the
Administrative Agent's receipt of any Competitive Bid Rates from any
other Lender. The Borrower shall then be entitled, in its sole
discretion, to elect to incur all or any part of the Competitive Bid
Revolving Loans offered by one or more of the Lenders that have elected
to provide quotes for any of the Interest Periods and at the rate(s)
quoted by such Lender(s) provided, however, in the event two or more
Lenders submit identical quotes and the Borrower elects to incur all or
any part of the Competitive Bid Revolving Loans at such identical
quotes, such Borrowing shall be from said Lenders on a pro rata basis
determined by the amounts offered by such Lenders. The Competitive Bid
Revolving Loans incurred by the Borrower in connection with such a
request for quotes shall not exceed (i) with respect to all Lenders
then providing quotes, the then unutilized Revolving Loan Commitment of
all Lenders as a group, and (ii) with respect to each Lender providing
a quote, the amount bid by such Lender in connection with such Lender's
quote. The Borrower shall notify the Administrative Agent and such
Lender or Lenders of its election by telephone (and confirmed in
writing before 5:00 p.m. (local time for the Administrative Agent of
the same day) not later than 12:00 noon (local time for the
Administrative Agent) two (2) Business Days prior to the requested date
of such Borrowing in the case of Libor Bid Loans and on the requested
date of such Borrowing in the event of Fixed Rate Bid Loans.
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(b) (i) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing under the Syndicate Revolving Loans, which
Borrowing consists of Base Rate Advances or Eurodollar Advances, into
one or more Borrowings consisting of Eurodollar Advances, or to
continue outstanding a Borrowing consisting of Eurodollar Advances for
a new Interest Period, it shall give the Administrative Agent at least
three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each such Borrowing to be converted
into or continued as Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 A.M. (local
time for the Administrative Agent) on the date specified at the Payment
office of the Administrative Agent. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the
Advances are being converted into or continued as Eurodollar Advances
and (in the case of Eurodollar Advances) the Interest Period applicable
thereto. If, upon the expiration of any Interest Period in respect of
any Borrowing, Borrower shall have failed to deliver the Notice of
Conversion/ Continuation, Borrower shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base
Rate Advances. No conversion of any Borrowing of Eurodollar Advances
shall be permitted except on the last day of the Interest Period in
respect thereof.
(ii) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing under a Competitive Bid Revolving Loan into
one or more Borrowings consisting of another Type, or to continue
outstanding a Borrowing consisting of Libor Bid Loans for a new
Interest Period, it may request that the Lenders provide quotes for
Competitive Bid Rates in the same manner prescribed in Section
4.1(a)(ii) for funding.
So long as any Default or Event of Default shall have occurred and be
continuing, no Borrowing may be converted into or continued as (upon expiration
of the current Interest Period) Libor Bid Loans. No conversion of any Borrowing
into Libor Bid Loans shall be permitted except on the last day of the Interest
Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Administrative Agent and
the Lenders may act without liability upon the basis of telephonic
notice reasonably believed by the Administrative Agent or the Lenders
in
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good faith to be from Borrower prior to receipt of written
confirmation.
(d) The Administrative Agent shall promptly give each Lender
notice by telephone (confirmed in writing) or by telex, telecopy or
facsimile transmission of the matters covered by the notices given to
the Administrative Agent pursuant to this Section 4.1 with respect to
the Revolving Credit Commitments.
SECTION 4.2 DISBURSEMENT OF FUNDS.
(a) No later than 1:00 P.M. (local time for the Administrative
Agent) on the date of each Borrowing with respect to Syndicate
Revolving Loans or Line of Credit Loans (other than one resulting from
a conversion or continuation pursuant to Section 4.1(b)(i)), each
Lender will make available its Pro Rata Share of the amount of such
Borrowing in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by crediting
such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or, at Borrower's option, by effecting a wire
transfer of such amounts to Borrower's account specified by the
Borrower, by the close of business on such Business Day. In the event
that the Lenders do not make such amounts available to the
Administrative Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day
(with interest on such amount to begin accruing hereunder on such next
Business Day).
(b) No later than 3:00 P.M. (local time for the Administrative
Agent) on the date of each Borrowing with respect to the Competitive
Bid Revolving Loans (other than one resulting from a conversion or
continuation pursuant to Section 4.1(b)(ii)), each relevant Competitive
Bid Lender will make available the amount of such Borrowing in
immediately available funds at its Payment Office or the Payment Office
of the Administrative Agent, as directed by the Borrower, on the date
of such Borrowing. In the event the Borrower directs that the funds be
made available at the Payment Office of the Administrative Agent, each
relevant Competitive Bid Lender will make available the amount of such
Borrowing in immediately available funds at the Payment Office of the
Administrative Agent and the
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Administrative Agent will disburse the amount of such Borrowing as
provided in Section 4.2(a) above.
(c) Unless the Administrative Agent shall have been notified
by any Lender prior to the date of a Borrowing that such Lender does
not intend to make available to the Administrative Agent such Lender's
portion of the Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date and the Administrative Agent may make
available to Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by
such Lender on the date of such Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from
such Lender together with interest at the Federal Funds Rate. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify Borrower, and Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest
at the rate specified for the Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its
Loans hereunder or to prejudice any rights which Borrower may have
against any Lender as a result of any default by such Lender hereunder.
(d) All Borrowings consisting of Syndicate Revolving Loans
shall be loaned by the Lenders on the basis of their Pro Rata Share of
the Revolving Loan Commitments. All Borrowings consisting of
Competitive Bid Revolving Loans shall be loaned by the Lenders whose
quotes were accepted by the Borrower. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and
each Lender shall be obligated to make the Loans provided to be made by
it hereunder, regardless of the failure of any other Lender to fund its
Loans hereunder.
SECTION 4.3 INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Syndicate Revolving Loans and Line of Credit
Loans from the respective dates such principal amounts were advanced to
maturity (whether by acceleration, notice of prepayment or otherwise)
at rates per annum (on the basis of a 365-day year for Base Rate
Advances and on the basis of a 360-day year for Eurodollar Advances and
Line of Credit Loans) equal to the applicable rates indicated below:
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(i) For Base Rate Advances--the Base Rate
in effect from time to time;
(ii) For Eurodollar Advances--the
relevant Adjusted LIBO Rate plus the Applicable Margin; and
(iii) For Line of Credit Loans--the Federal Funds
Rate in effect from time to time plus such amount as the
Borrower and SunTrust may mutually agree to from time to time
not to exceed fifty basis points (i.e. 0.50%).
(b) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Competitive Bid Revolving Loans made to
Borrower from the respective dates such principal amounts were advanced
to maturity (whether by acceleration, notice of prepayment or
otherwise) at times and at rates per annum equal to the applicable
times and rates agreed upon between Borrower and the respective
Competitive Bid Lender.
(c) Overdue principal (whether by non-payment at scheduled due
date, acceleration, notice of prepayment or otherwise) and, to the
extent not prohibited by applicable law, overdue interest, in respect
of the Revolving Loans and Line of Credit Loans, whether Syndicate
Revolving Loans or Competitive Bid Revolving Loans, and all other
overdue amounts owing hereunder, shall bear interest from each date
that such amounts are overdue at the Default Rate.
(d) Interest on each Loan shall accrue from and including the
date of such Loan to but excluding the date of any repayment thereof;
PROVIDED that, if a Loan is repaid on the same day made, one day's
interest shall be paid on such Loan. Interest on all outstanding Base
Rate Advances and Federal Funds Rate Advances shall be payable
quarterly in arrears on the last calendar day of each calendar quarter
of Borrower in each year. Interest on all outstanding Eurodollar
Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Eurodollar Advances having an
Interest Period in excess three months, on each day which occurs every
3 months after the initial date of such Interest Period. Interest on
all Loans shall be payable on any conversion of any Advances comprising
such Loans into Advances of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of prepayment or
otherwise) and, after maturity, on demand.
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(e) The Administrative Agent, upon determining the Adjusted
LIBO Rate for any Interest Period, shall promptly notify by telephone
(confirmed in writing) or in writing Borrower and the Lenders. Any such
determination shall, absent manifest error, be final, conclusive and
binding for all purposes. A Competitive Bid Lender has no obligation to
notify any other Lender of the interest rates charged to Borrower.
SECTION 4.4 INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of Syndicate Revolving Loans comprised
of Eurodollar Advances, Borrower shall select an Interest Period to be
applicable to such Eurodollar Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period; PROVIDED THAT:
(i) The initial Interest Period for any Borrowing of
Eurodollar Advances shall commence on the date of such
Borrowing (including the date of any conversion from a
Borrowing consisting of Advances of another Type) and each
Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on
a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if
any Interest Period in respect of Eurodollar Advances would
otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period shall, subject to part (iv) below,
expire on the last Business Day of such calendar month;
(iv) No Interest Period shall extend beyond the Final
Maturity Date.
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(b) When it requests a Lender to make a quote for a
Competitive Bid Revolving Loan, the Borrower shall specify to such
Lender the Interest Period to be applicable to such Loan, which
Interest Period shall be as agreed upon by the Borrower and such
Lender; provided, however, that (i) no Interest Period shall extend
beyond the Final Maturity Date and (ii) if any Interest Period would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day.
SECTION 4.5 FEES.
(a) FACILITY FEE. Borrower shall pay to the Administrative
Agent, for the account of and distribution to each Lender, a Facility
Fee computed at the rate of the Facility Fee Applicable Margin on the
Revolving Loan Commitment and the Line of Credit Commitment of each
Lender regardless of usage, such fee being payable quarterly in arrears
on the last calendar day of each fiscal quarter of Borrower and on the
Termination Date.
(b) REVOLVING TRADE LETTER OF CREDIT FEES.
(i) Upon each issuance of a Revolving Trade Letter of
Credit, the Borrower shall pay the Administrative Agent, for
the account of each Lender (for monthly distribution to the
Lenders by the Administrative Agent), a fee equal to 0.125% of
such Lender's Pro Rata Share of the face amount of such
Revolving Trade Letter of Credit, provided that the minimum
fee with respect to each issuance shall be $50.
(ii) Upon the honoring of a draft drawn under a
Revolving Trade Letter of Credit, the Borrower shall pay to
the Administrative Agent, for the account of each Lender, a
fee equal to 0.125% of such Lender's Pro Rata Share of the
amount of such drawing, PROVIDED that the minimum fee with
respect to each drawing shall be $50.
(c) STANDBY LETTER OF CREDIT FEES. With respect to each
Standby Letter of Credit, the Borrower shall pay the Administrative
Agent for the account of each Lender, a nonrefundable fee equal to the
Eurodollar Margin/Letter of Credit Fee Applicable Margin per annum on
such Lender's Pro Rata Share of the undrawn face amount of such Letter
of Credit. All fees due pursuant to this Section 4.5(c) shall be based
on a year of 360 days and computed for the actual number of days
elapsed, and shall be payable in advance on the date of such Letter of
Credit for the period from the date of issuance to the
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first Business Day of each calendar quarter and thereafter on the first
Business Day of each calendar quarter.
(d) LETTER OF CREDIT ADMINISTRATIVE FEES. In addition to the
foregoing fees, the Borrower shall pay to the Administrative Agent, for
the Administrative Agent's account, such other administrative fees as
the Administrative Agent customarily charges in respect of letter of
credit transactions together with all telecommunication fees and other
expenses incurred by the Administrative Agent in connection with the
issuance or honoring of any Letter of Credit issued for the Borrower's
account.
(e) ANNUAL ADMINISTRATIVE FEE. Borrower shall pay to the
Administrative Agent an annual administrative fee, in advance, in the
respective amount and on the dates previously agreed in writing by
Borrower with the Administrative Agent pursuant to the Commitment
Letter.
(f) OTHER FEES. Borrower shall pay to the Agents any other
fees as required by the Commitment Letter, as and when due.
SECTION 4.6 VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) With the consent of the Lender, Borrower may prepay
Competitive Bid Revolving Loans on such terms as are mutually agreed to
by the Lender and the Borrower. Borrower may, at its option, prepay
Borrowings consisting of Base Rate Advances at any time in whole, or
from time to time in part, in amounts aggregating $1,000,000 or any
greater integral multiple of $100,000, by paying the principal amount
to be prepaid together with interest accrued and unpaid thereon to the
date of prepayment. Those Borrowings consisting of Eurodollar Advances
may be prepaid, at Borrower's option, in whole, or from time to time in
part, in the respective minimum amounts and multiples set forth in
Section 2.1(b) with respect to the Revolving Loan Commitments, by
paying the principal amount to be prepaid, together with interest
accrued and unpaid thereon to the date of prepayment, and all
compensation payments pursuant to Section 4.12 if such prepayment is
made on a date other than the last day of an Interest Period applicable
thereto. Each such optional prepayment shall be applied in accordance
with Section 4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the
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Administrative Agent of any intended prepayment of the Revolving Loans
or Line of Credit Loans prior to 12:00 noon (local time for the
Administrative Agent) (i) not less than the same Business Day of any
prepayment of Base Rate Advances, and (ii) not less than three Business
Days prior to any prepayment of Eurodollar Advances. Borrower shall
give written notice (or telephonic notice confirmed in writing) to the
respective Competitive Bid Lender of any intended prepayment of the
Competitive Bid Loans (i) not less than the same Business Day of any
prepayment of Base Rate Advances, and (ii) not less than three Business
Days prior to any prepayment of Eurodollar Advances. Such notice, once
given, shall be irrevocable. Upon receipt of such notice of prepayment
pursuant to the first sentence of this paragraph (b), the
Administrative Agent shall promptly notify each Lender of the contents
of such notice and of such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 4.6(b) may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if
any prepayment of Eurodollar Advances made pursuant to a single
Borrowing of the Syndicate Revolving Loans shall reduce the outstanding
Advances made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into Base
Rate Advances; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such
Borrowing, if such prepayment is not a prepayment of a Borrowing of
Competitive Bid Revolving Loans. All voluntary prepayments shall be
applied to the payment of any unpaid interest before application to
principal.
SECTION 4.7 PAYMENTS, ETC.
(a) (i) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other
than the payments specified in clause (ii) below, shall be made without
defense, set-off or counterclaim to the Administrative Agent, not later
than 12:00 noon (local time for the Administrative Agent) on the date
when due and shall be made in Dollars in immediately available funds at
the respective Payment Office.
(ii) Except as otherwise specifically provided herein, all
payments under this Agreement with respect to the Competitive Bid
Lenders shall be made without defense, set-off or counterclaim to the
Administrative
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Agent or respective Competitive Bid Lender at its Payment Office not
later than 12:00 noon (local time for the Administrative Agent or such
Competitive Bid Lender, whichever is applicable) on the date when due
and in immediately available funds, or, if the Borrower elects to make
payment directly to the Competitive Bid Lender, at any other location
of the Competitive Bid Lender as the Competitive Bid Lender may specify
in writing to Borrower not later than Noon (local time for the
Competitive Bid Lender) on the Business Day such payment is due.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or
thereunder (but excluding any Taxes imposed on the overall net income
of any Lender pursuant to the laws of the jurisdiction in which the
principal executive office or appropriate Lending Office of such Lender
is located). If any such Taxes are so levied or imposed, Borrower
agrees (A) to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every net payment of all amounts
due hereunder and under the Notes and other Credit Documents, after
withholding or deduction for or on account of any such Taxes (including
additional sums payable under this Section 4.7), will not be less than
the full amount provided for herein had no such deduction or
withholding been required, (B) to make such withholding or deduction
and (C) to pay the full amount deducted to the relevant authority in
accordance with applicable law. Borrower will furnish to the
Administrative Agent and each Lender, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, copies of tax
receipts evidencing such payment by Borrower. Borrower will indemnify
and hold harmless the Administrative Agent and each Lender and
reimburse the Administrative Agent and each Lender upon written request
for the amount of any Taxes so levied or imposed and paid by the
Administrative Agent or Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or the
Administrative Agent, absent manifest error, shall be final, conclusive
and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State
thereof (including the District of
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Columbia) agrees to furnish to Borrower and the Administrative Agent,
prior to the time it becomes a Lender hereunder, two copies of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 or any successor forms thereto (wherein such Lender
claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to
provide to Borrower and the Administrative Agent a new Form 4224 or
Form 1001 or any successor forms thereto if any previously delivered
form is found to be incomplete or incorrect in any material respect or
upon the obsolescence of any previously delivered form; PROVIDED,
HOWEVER, that no Lender shall be required to furnish a form under this
paragraph (ii) if it is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law. A Lender that is not
entitled to claim an exemption from or a reduced rate of withholding
under applicable law shall so inform Borrower in writing.
(c) Subject to Section 4.4(a)(ii), whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the applicable rate
during such extension.
(d) On other than Competitive Bid Revolving Loans, which shall
be negotiated from time to time, all computations of interest and fees
shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed), except that interest on
Base Rate Advances shall be computed on the basis of a year of 365 days
for the actual number of days. Interest on Base Rate Advances shall be
calculated based on the Base Rate from and including the date of such
Loan to but excluding the date of the repayment or conversion thereof.
Interest on Eurodollar Advances shall be calculated as to each Interest
Period from and including the first day thereof to but excluding the
last day thereof. Each determination by the Administrative Agent or the
Competitive Bid Lender of an interest rate or fee hereunder shall be
made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as
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to Borrower, constitute payment to the Lenders under this
Agreement.
SECTION 4.8 INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that the
Administrative Agent, in the case of the Adjusted LIBO Rate, shall have
determined (which determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties) that on any date
for determining the Adjusted LIBO Rate for any Interest Period, by reason of any
changes arising after the date of this Agreement affecting the London interbank
market or the Administrative Agent's position in such markets, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted LIBO Rate then, and in any such
event, the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such determination and a
summary of the basis for such determination. Until the Administrative Agent
notifies Borrower that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or permit
portions of the Syndicate Revolving Loans to remain outstanding past the last
day of the then current Interest Periods as Eurodollar Advances shall be
suspended, and such affected Advances shall bear the same interest as Base Rate
Advances.
SECTION 4.9 ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) at any time
that the making or continuance of any Eurodollar Advance has become
unlawful by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender shall give
prompt notice (by telephone confirmed in writing) to Borrower and to
the Administrative Agent of such determination and a summary of the
basis for such determination (which notice the Administrative Agent
shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request from such Lender
and such Lender's obligation to make Eurodollar Advances shall be
immediately suspended, and such Lender shall make an Advance as part of
the requested Borrowing of Eurodollar Advances as a Base Rate Advance,
which Base Rate Advance shall, for all
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other purposes, be considered part of such Borrowing, and (ii) if the
affected Eurodollar Advance or Advances are then outstanding, Borrower
shall immediately, or if permitted by applicable law, no later than the
date permitted thereby, upon at least one Business Day's written notice
to the Administrative Agent and the affected Lender, convert each such
Advance into an Advance or Advances of a different Type with an
Interest Period ending on the date on which the Interest Period
applicable to the affected Eurodollar Advances expires, provided that
if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 4.9(b).
SECTION 4.10 INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or
in the interpretation of any law or regulation, or (y) the compliance
with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not
having the force of law):
(i) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect
to its Eurodollar Advances or its obligation to make
Eurodollar Advances, or the basis of taxation of payments to
any Lender of the principal of or interest on its Eurodollar
Advances or its obligation to make Eurodollar Advances shall
have changed (except for changes in the tax on the overall net
income of such Lender or its applicable Lending Office imposed
by the jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended
by, any Lender's applicable Lending Office shall be imposed or
deemed applicable or any other condition affecting its
Eurodollar Advances or its obligation to make Eurodollar
Advances shall
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be imposed on any Lender or its applicable Lending Office or
the London interbank market or the United States secondary
certificate of deposit market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances), or there shall be a reduction in
the amount received or receivable by such Lender or its applicable Lending
Office, then Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 4.7(b)), upon written notice from
and demand by such Lender on Borrower (with a copy of such notice and demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender within five Business Days after the date of such notice and demand,
additional amounts sufficient to indemnify such Lender against such increased
cost. A certificate as to the amount of such increased cost, submitted to
Borrower and the Administrative Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Administrative Agent that
at any time, because of the circumstances described in clause (x) or
(y) in Section 4.10(a) or any other circumstances beyond such Lender's
control arising after the date of this Agreement affecting such Lender
or the London interbank market or such Lender's position in such
market, the Adjusted LIBO Rate, as determined by the Administrative
Agent, will not adequately and fairly reflect the cost to such Lender
of funding its Eurodollar Advances, then, and in any such event:
(i) the Administrative Agent shall forthwith give
notice (by telephone confirmed in writing) to Borrower and to
the other Lenders of such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest
Periods as Eurodollar Advances shall be immediately suspended;
and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of Eurodollar Advances as a Base Rate
Advance, which such Base Rate Advance shall, for all other
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purposes, be considered part of such Borrowing.
SECTION 4.11 LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of
such Lender) to designate an alternate Lending Office with respect to
any of its Eurodollar Advances affected by the matters or circumstances
described in Section 4.7(b), 4.8, 4.9 or 4.10 to reduce the liability
of Borrower or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as determined by such
Lender, which determination if made in good faith, shall be conclusive
and binding on all parties hereto. Nothing in this Section 4.11 shall
affect or postpone any of the obligations of Borrower or any right of
any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State
thereof (including the District of Columbia) issues a public
announcement with respect to the closing of its lending offices in the
United States such that any withholdings or deductions and additional
payments with respect to Taxes may be required to be made by Borrower
thereafter pursuant to Section 4.7(b), such Lender shall use reasonable
efforts to furnish Borrower notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such
notice shall in any event release or discharge Borrower from its
obligations to such Lender pursuant to Section 4.7(b) or otherwise
result in any liability of such Lender.
SECTION 4.12 FUNDING LOSSES. Borrower shall compensate each Lender,
upon its written request to Borrower (which request shall set forth the basis
for requesting such amounts in reasonable detail and which request shall be made
in good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Advances, in either case to
the extent not recovered by such Lender in connection with the reemployment of
such funds and including loss of anticipated profits), which the Lender may
sustain: (i) if for any reason (other than a default by such Lender) a borrowing
of, or conversion to or continuation of, Eurodollar Advances to Borrower does
not occur on the date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not
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withdrawn), (ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 4.9(b)) of any Eurodollar Advances to Borrower
occurs on a date which is not the last day of an Interest Period applicable
thereto, or (iii), if, for any reason, Borrower defaults in its obligation to
repay its Eurodollar Advances when required by the terms of this Agreement.
SECTION 4.13 ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this Article IV shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the United
States of America; PROVIDED HOWEVER, that each Lender may fund each of its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall
be used only for calculation of amounts payable under this Article IV.
SECTION 4.14 APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of facility fees
and letter of credit fees shall be apportioned among all outstanding Commitments
and Loans to which such payments relate, proportionately to the Lenders'
respective pro rata portions of such Commitments and outstanding Loans. The
Administrative Agent shall promptly distribute to each Lender at its payment
office set forth beside its name on the appropriate signature page hereof or
such other address as any Lender may request its share of all such payments
received by the Administrative Agent.
SECTION 4.15 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such Obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
Administrative Agent of such receipt and (ii) purchase from the other Lenders
such participations in the affected Obligations as shall be necessary to cause
such purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such
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additional costs, but without interest unless the Lender obligated to return
such funds is required to pay interest on such funds. Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 4.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower in
the amount of such participation.
SECTION 4.16 CAPITAL ADEQUACY. Without limiting any other provision of
this Agreement, in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then within ten (10) Business Days after written notice and demand
by such Lender (with copies thereof to the Administrative Agent), Borrower shall
from time to time pay to such Lender additional amounts sufficient to compensate
such Lender for such reduction (but, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in the applicable Base Rate
or Adjusted LIBO Rate). Each certificate as to the amount payable under this
Section 4.16 (which certificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to Borrower by any Lender in good
faith, shall, absent manifest error, be final, conclusive and binding for all
purposes.
SECTION 4.17 BENEFITS TO GUARANTORS. In consideration for the execution
and delivery by the Guarantors of their Guaranty Agreements, Borrower agrees to
make the benefit of extensions of credit hereunder available to the Guarantors.
SECTION 4.18 LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Section 4.7 no later than 120 days after the earlier of (i) the date on
which such
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Lender or Administrative Agent makes payment of such Taxes and (ii) the
date on which the relevant taxing authority or other governmental
authority makes written demand upon such Lender or Administrative Agent
for payment of such Taxes.
(b) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Section 4.10 or 4.12 no later than 120 days after the event giving rise
to the claim for indemnification or compensation occurs.
(c) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Section 4.9 or 4.16 no later than 120 days after such Lender or
Administrative Agent receives actual notice or obtains actual knowledge
of the promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to such
sections.
(d) In the event that the Lenders or Administrative Agent fail
to give Borrower notice within the time limitations prescribed in (a)
or (b) above, Borrower shall not have any obligation to pay such claim
for compensation or indemnification. In the event that the Lender or
Administrative Agent fail to give Borrower notice within the time
limitation prescribed in (c) above, Borrower shall not have any
obligation to pay any amount with respect to claims accruing prior to
the one hundred and twentieth (120th) day preceding such written
demand.
SECTION 4.19 RETURN OF PAYMENTS. If the Administrative Agent shall be
required by any court, trustee or debtor-in-possession or other Person to
return any amount previously received by it in respect of the Obligations under
this Agreement, upon receipt of notice from it, each Lender that received all or
a portion thereof shall immediately pay over to it, such Lender's pro rata share
of the amount to be returned.
ARTICLE V
CONDITIONS TO EXTENSIONS OF CREDIT
The obligations of each Lender to make Advances to Borrower hereunder
and of the Administrative Agent to issue Letters of Credit hereunder is subject
to the satisfaction of the following conditions:
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SECTION 5.1 CONDITIONS PRECEDENT TO EXTENSION OF CREDIT. At the Closing
Date, all obligations of Borrower hereunder incurred prior to the Closing Date
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Administrative Agent and any fees
and expenses payable to the Administrative Agent and the Lenders as previously
agreed with Borrower), shall have been paid in full, and the Administrative
Agent shall have received the following, in form and substance reasonably
satisfactory in all respects to the Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the
Revolving Loan Commitments and the duly executed Line of Credit Note
evidencing the Line of Credit Commitment;
(c) the Guaranty Agreements;
(d) certificate of Borrower in substantially the form of
EXHIBIT E attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties, attaching and certifying copies of the
resolutions of the boards of directors of the Credit Parties,
authorizing as applicable the execution, delivery and performance of
the Credit Documents;
(f) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties, certifying (i) the name, title and true
signature of each officer of such entities executing the Credit
Documents, and (ii) the bylaws or comparable governing documents of
such entities;
(g) certified copies of the certificate or articles of
incorporation of each Credit Party, certified by the Secretary of State
or the Secretary or Assistant Secretary of such Credit Party, together
with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation or
organization of such Credit Party;
(h) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution, delivery,
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performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired;
(i) certified copies of the Intercompany Loan Documents, to
the extent that they exist;
(j) acknowledgment from CSC, The United States Corporation
Company as to its appointment as agent for service of process for the
various Credit Parties;
(k) agreement by the lenders of the Refinanced Indebtedness to
accept payment in full of all obligations outstanding under the
Refinanced Indebtedness and termination of all credit facilities
relating thereto and to release all Liens securing such obligations,
and the establishment of escrow or other arrangements for such
repayment and release of Liens acceptable to the Administrative Agent
and the Lenders;
(l) certified copies of indentures, credit agreements, leases,
capital leases, instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company, described on SCHEDULE
6.13(a), in any single case in an amount not less than $25,000,000;
(m) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
liabilities or obligations which could reasonably be expected to have a
Materially Adverse Effect arising from matters relating to employees of
the Consolidated Companies, including employee relations, collective
bargaining agreements, and Plans;
(n) certificates, reports, environmental audits and
investigations, and other information as the Administrative Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations under Environmental Laws which could reasonably be expected
to have a Materially Adverse Effect;
(o) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
liabilities or obligations which could reasonably be expected to have a
Materially Adverse Effect arising from litigation (including without
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limitation, products liability and patent infringement claims) pending
or threatened against the Consolidated Companies;
(p) a summary, set forth in format and detail reasonably
acceptable to the Administrative Agent, of the types and amounts of
insurance (property and liability) maintained by the Consolidated
Companies;
(q) the favorable opinion of independent counsel to the Credit
Parties acceptable to the Administrative Agent, addressed to, and in
form and substance satisfactory to, the Administrative Agent and each
of the Lenders;
(r) financial statements of Borrower and its Subsidiaries, on
a consolidated basis, for the most recently completed fiscal year for
which audited annual financial statements are available; and
(s) all material documentation in conjunction with the
Convertible Subordinated Debt, the subordination provisions of which
shall, in all respects, be satisfactory to the Administrative Agent and
the Required Lenders.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Administrative Agent, as of the
time the initial Extensions of Credit are made hereunder:
(t) payment in full and termination of all outstanding senior
indebtedness of the Borrower and its Material Subsidiaries and the
release of any liens securing the same; provided, however, the
following indebtedness may remain outstanding: (i) all Capitalized
Lease Obligations described on SCHEDULE 6.7; (ii) installment notes and
other Indebtedness described on SCHEDULE 6.13(a); and (iii) the
Intercompany Loans described on SCHEDULE 6.22;
(u) the Extensions of Credit to be made and the use of
proceeds thereof shall not contravene, violate or conflict with, or
involve the Administrative Agent or any Lender in a violation of, any
law, rule, injunction, or regulation, or determination of any court of
law or other governmental authority;
(v) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably satisfactory
in form and substance to the Required Lenders; and
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(w) the status of all pending and threatened litigation
(including products liability and patent claims) described on SCHEDULE
6.5, including a description of any damages sought and the claims
constituting the basis therefor, shall have been reported in writing to
the Administrative Agent, the Administrative Agent shall have reported
such matters to the Lenders, and the Lenders shall be satisfied with
such status.
SECTION 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT. At the time of the
making of all Extensions of Credit (before as well as after giving effect to
such Loans and to the proposed use of the proceeds thereof), the following
conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on
and as of the date of such Extensions of Credit;
(c) since the date of the most recent financial statements of
the Consolidated Companies described in Section 6.3, there shall have
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
(d) there shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the
knowledge of Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict one or more Credit Party's ownership or operation
of any portion of its business or assets, or to compel one or more
Credit Party to dispose of or hold separate all or any portion of its
businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a material
portion of the total businesses or assets of the Consolidated
Companies;
(e) the Extensions of Credit to be made and the use of
proceeds thereof shall not contravene, violate or conflict with, or
involve the Administrative Agent or any Lender in a violation of, any
law, rule, injunction, or regulation, or determination of any court of
law or other governmental authority applicable to Borrower; and
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(f) the Administrative Agent shall have received such other
documents or legal opinions as the Administrative Agent or any Lender
may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent.
Each request for an Extension of Credit and the acceptance by Borrower of the
proceeds thereof shall constitute a representation and warranty by Borrower, as
of the date of such Extension of Credit, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied without any further action
by the Borrower.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
SECTION 6.1 ORGANIZATION AND QUALIFICATION. Borrower is a corporation
duly organized and existing in good standing under the laws of the State of
Delaware. Each Subsidiary of Borrower is a corporation duly organized and
existing under the laws of the jurisdiction of its incorporation. Borrower and
each of its Material Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the character
of their properties or the nature of their business makes such qualification
necessary, except for such jurisdictions in which a failure to qualify to do
business would not have a Materially Adverse Effect. Borrower and each of its
Material Subsidiaries have the corporate power to own their respective
properties and to carry on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Material Subsidiary as of the
date of this Agreement is accurately described on SCHEDULE 6.1. SCHEDULE 6.1
also designates the Material Subsidiaries as of the Closing Date.
SECTION 6.2 CORPORATE AUTHORITY. The execution and delivery by Borrower
and the Guarantors of and the performance by Borrower and Guarantors of their
obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
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breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
SECTION 6.3 FINANCIAL STATEMENTS. Borrower has furnished Lenders with
the following financial statements, identified by the Chief Financial Officer of
Borrower: consolidated balance sheets and consolidated statements of income,
stockholders' equity and cash flow of Borrower for the fiscal years ended on the
last Saturday in December, 1996 certified by Deloitte & Touche, and quarterly,
publicly filed financial statements for the periods ended March 31, 1997, June
30, 1997, and September 30, 1997. Such financial statements (including any
related schedules and notes) are true and correct in all material respects, have
been prepared in accordance with GAAP consistently applied throughout the period
or periods in question and show, in the case of audited statements, all
liabilities, direct or contingent, of Borrower and its Subsidiaries, required to
be shown in accordance with GAAP consistently applied throughout the period or
periods in question and fairly present the consolidated financial position and
the consolidated results of operations of Borrower and its Subsidiaries for the
periods indicated therein. There has been no material adverse change in the
business, condition or operations, financial or otherwise, of Borrower and its
Consolidated Subsidiaries since the date of such financial statements.
SECTION 6.4 TAX RETURNS. Except as set forth on SCHEDULE 6.4, each of
Borrower and its Material Subsidiaries has filed all federal, state and other
income tax returns which, to the best knowledge of the executive officers of
Borrower and its Material Subsidiaries, are required to be filed, and each has
paid all taxes as shown on said returns and on all assessments received by it to
the extent that such taxes have become due or except such as are being contested
in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP.
SECTION 6.5 ACTIONS PENDING. Except as disclosed on SCHEDULE 6.5
hereto, there is no action, suit, investigation or proceeding pending or, to the
knowledge of any Executive Officer of Borrower, threatened against or affecting
Borrower or any of its Material Subsidiaries or any of their properties or
rights, by or before any court, arbitrator or administrative or governmental
body, which might result in any Materially Adverse Effect.
SECTION 6.6 REPRESENTATIONS; NO DEFAULTS. At the time of each Extension
of Credit there shall exist no Default or Event of Default, and each Extension
of Credit shall be deemed a renewal by Borrower of the representations and
warranties contained in this Agreement, except to the extent that such
representations and warranties specifically relate to and are limited to an
earlier date, and an affirmative statement by Borrower that such
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representations and warranties are true and correct in all material respects on
and as of such time with the same effect as though such representations and
warranties had been made on and as of such time.
SECTION 6.7 TITLE TO PROPERTIES; CAPITALIZED LEASES. Each of Borrower
and its Material Subsidiaries has (i) good and marketable fee simple title to
its respective real properties (other than real properties which it leases from
others), including such real properties reflected in the consolidated balance
sheet of Borrower and its Material Subsidiaries as of December 28, 1996
hereinabove described (other than real properties disposed of in the ordinary
course of business), subject to no Lien of any kind which could reasonably be
expected to have a Materially Adverse Effect and except Liens permitted by
Section 8.1 and (ii) good title to all of its other respective properties and
assets (other than properties and assets which it leases from others), including
the other properties and assets reflected in the consolidated balance sheet of
Borrower and its Subsidiaries at December 28, 1996 hereinabove described (other
than properties and assets disposed of in the ordinary course of business),
subject to no Lien of any kind which could reasonably be expected to have a
Materially Adverse Effect and except Liens permitted by Section 8.1. Each of
Borrower and its Material Subsidiaries enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which could reasonably be expected to have a Materially
Adverse Effect, and all such leases are valid and subsisting and in full force
and effect. There are no Capitalized Lease Obligations except as disclosed on
SCHEDULE 6.7 hereto.
SECTION 6.8 ENFORCEABILITY OF AGREEMENT. This Agreement is the legal,
valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Notes, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable,
except as the enforceability of the Notes and other Credit Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and by general principles of
equity, whether considered in a proceeding at law or in equity.
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SECTION 6.9 CONSENT. No consent, permission, authorization, order or
license of or filing with any governmental authority or Person which has not
been obtained or made is necessary in connection with the execution, delivery,
performance or enforcement of the Credit Documents by the Credit Parties, or in
order to constitute the indebtedness to be incurred hereunder and under the
Notes and the other Credit Documents as "Senior Debt" or any similar term
defined within each of the Subordinated Debt documents.
SECTION 6.10 USE OF PROCEEDS; FEDERAL RESERVE REGULATIONS. The proceeds
of the Notes will be used solely for the purposes specified in Section 2.1(c)
and 3.1(c) and none of such proceeds will be used, directly or indirectly, for
the purpose of purchasing or carrying any "margin security" or "margin stock" or
for the purpose of reducing or retiring any indebtedness that originally was
incurred to purchase or carry a "margin security" or "margin stock" or for any
other purpose that might constitute this transaction a "purpose credit" within
the meaning of the regulations of the Board of Governors of the Federal Reserve
System.
SECTION 6.11 ERISA.
(a) IDENTIFICATION OF CERTAIN PLANS. SCHEDULE 6.11 hereto sets
forth all Plans of Borrower and its Subsidiaries;
(b) COMPLIANCE. Each Plan is being maintained, by its terms
and in operation, in accordance with all applicable laws, except such
noncompliance (when taken as a whole) that will not have a Materially
Adverse Effect on the Borrower and its Subsidiaries taken as a whole,
or upon their financial condition, assets, business, operations,
liabilities or prospects;
(c) LIABILITIES. Neither the Borrower nor any Subsidiary is
currently or will become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with
respect to any Plan including, but not limited to, any tax, penalty or
liability arising under Title I or Title IV of ERISA or Chapter 43 of
the Code, except such liabilities (when taken as a whole) as will not
have a Materially Adverse Effect on the Borrower and its Subsidiaries
taken as a whole, or upon their financial condition, assets, business,
operations, liabilities or prospects; and
(d) FUNDING. The Borrower and each ERISA Affiliate has made
full and timely payment of all amounts (i) required to be contributed
under the terms of each
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Plan and applicable law and (ii) required to be paid as expenses of
each Plan, except where such non-payment would not have a Material
Adverse Effect. No Plan has an "amount of unfunded benefit liabilities"
(as defined in Section 4001(a)(18) of ERISA) except as disclosed on
SCHEDULE 6.11. No Plan is subject to a waiver or extension of the
minimum funding requirements under ERISA or the Code, and no request
for such waiver or extension is pending.
SECTION 6.12 SUBSIDIARIES. All the outstanding shares of stock of each
Consolidated Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such SCHEDULE
6.1, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of its incorporation with the
power and authority (corporate and other) to carry on its business as it is now
conducted and (ii) is qualified to transact business as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
required under applicable law, except for such jurisdictions in which a failure
to qualify to do business would not have a Materially Adverse Effect.
SECTION 6.13 OUTSTANDING DEBT.
(a) Except for the Refinanced Indebtedness to be repaid and
terminated on the Closing Date and the Intercompany Loans set forth on
SCHEDULE 6.22, and except as set forth on SCHEDULE 6.13(a) as of the
Closing Date and after giving effect to the transactions contemplated
by this Agreement, neither Borrower nor any of its Subsidiaries has
outstanding any Indebtedness.
(b) There exists no event of default under the provisions of
any instrument evidencing such Indebtedness or of any agreement
relating thereto except as noted on SCHEDULE 6.13(b).
SECTION 6.14 CONFLICTING AGREEMENTS. Neither Borrower nor any of its
Consolidated Subsidiaries is a party to any contract or agreement or subject to
any charter, bylaw or other corporate restriction which would reasonably be
expected to have a Materially Adverse Effect. Assuming the consummation of the
transactions contemplated by this Agreement, neither the execution or delivery
of this Agreement or the Credit Documents, nor fulfillment of or compliance with
the terms and provisions hereof and thereof, will conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under,
or result in any
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violation of, or result in the creation of any Lien upon any of the properties
or assets of Borrower or any of its Subsidiaries pursuant to, the charter or
By-Laws of Borrower or any of its Subsidiaries, any award of any arbitrator or
any agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which Borrower or any of
its Subsidiaries is subject, and neither Borrower nor any of its Subsidiaries is
a party to, or otherwise subject to any provision contained in, any instrument
evidencing Debt of Borrower or any of its Subsidiaries, any agreement relating
thereto or any other contract or agreement (including its charter) which limits
the amount of, or otherwise imposes restrictions on the incurring of, Debt of
the type to be evidenced by the Notes or contains dividend or redemption
limitations on Common Stock of Borrower, except for this Agreement, Borrower's
Certificate of Incorporation and those matters listed on SCHEDULE 6.14 attached
hereto.
SECTION 6.15 ENVIRONMENTAL MATTERS.
(a) Except as set forth on SCHEDULE 6.15(a), each of the Borrower and
its Subsidiaries has complied in all material respects (except for instances of
noncompliance that have been resolved prior to the Closing Date) with all
applicable Environmental Laws, including without limitation, compliance with
permits, licenses, standards, schedules and timetables issued pursuant to
Environmental Laws, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or potential liability
under any applicable Environmental Law, including without limitation, the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"),
the Federal Water Pollution Control Act, as amended ("FWPCA"), the Federal Clean
Air Act, as amended ("FCAA"), and the Toxic Substance Control Act ("TSCA"),
which violation, liability or potential liability could reasonably be expected
to have a Materially Adverse Effect.
(b) Except as set forth on SCHEDULE 6.15(b), neither the Borrower nor
any of its Subsidiaries has received a written request for information under
CERCLA or any analogous state law, or written notice that any such entity has
been identified as a potential responsible party under CERCLA, or any analogous
state law, nor has any such entity received any written notification that any
Hazardous Substance that it or any of its respective predecessors in interest
has generated, stored, treated, handled, transported, or disposed of, has been
released or is threatened to be released at any site at which any Person intends
to conduct or is conducting
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a remedial investigation or other action pursuant to any applicable
Environmental Law, or any other Environmental Laws.
(c) Except as set forth on SCHEDULE 6.15(c), each of the Borrower and
its Subsidiaries has obtained all permits, licenses or other authorizations
which are material for the conduct of their respective operations under all
applicable Environmental Laws and with respect to which each such authorization
is in full force and effect.
(d) Except as set forth in SCHEDULE 6.15(d), each of Borrower and its
Subsidiaries complies in all material respects with all laws and regulations
relating to equal employment opportunity and employee safety in all
jurisdictions in which it is presently doing business.
SECTION 6.16 POSSESSION OF FRANCHISES, LICENSES, ETC. Each of Borrower
and its Material Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions, that are necessary in
any material respect for the ownership, maintenance and operation of its
properties and assets, and neither Borrower nor any of its Subsidiaries is in
violation of any thereof in any material respect.
SECTION 6.17 PATENTS, ETC. Except as set forth on SCHEDULE 6.17, each
of Borrower and its Material Subsidiaries owns or has the right to use all
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, which are necessary for the operation of its business as presently
conducted. To the knowledge of any Executive Officer (i) no product, process,
method, substance, part or other material presently contemplated to be sold by
or employed by Borrower or any of its Material Subsidiaries in connection with
its business may infringe any patent, trademark, service xxxx, trade name,
copyright, license or other right owned by any other Person, (ii) there are no
pending or threatened claim or litigation against or affecting Borrower or any
of its Subsidiaries contesting its right to sell or use any such product,
process, method, substance, part or other material or (iii) there is no, or
there is no pending or proposed, patent, invention, device, application or
principle or any statute, law, rule, regulation, standard or code which would
prevent, inhibit or render obsolete the production or sale of any products of,
or substantially reduce the projected revenues of, or otherwise Materially
Adversely Effect the Borrower or any of its Material Subsidiaries.
SECTION 6.18 GOVERNMENTAL CONSENT. Neither the nature of Borrower or
any of its Subsidiaries nor any of their respective businesses or properties,
nor any relationship between Borrower and
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any other Person, nor any circumstance in connection with the execution and
delivery of the Credit Documents and the consummation of the transactions
contemplated thereby is such as to require on behalf of Borrower or any of its
Material Subsidiaries any consent, approval or other action by or any notice to
or filing with any court or administrative or governmental body in connection
with the execution and delivery of this Agreement and the Credit Documents.
SECTION 6.19 DISCLOSURE. Neither this Agreement nor the Credit
Documents nor any other document, certificate or written statement furnished to
Lenders by or on behalf of Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading. There
is no fact peculiar to Borrower which materially adversely affects or in the
future may (so far as Borrower can now foresee) materially adversely affect the
business, property or assets, financial condition of Borrower which has not been
set forth in this Agreement or in the Credit Documents, certificates and written
statements furnished to Lenders by or on behalf of Borrower prior to the date
hereof in connection with the transactions contemplated hereby.
SECTION 6.20 INSURANCE COVERAGE. Each property of Borrower or any of
its Subsidiaries is insured within terms reasonably acceptable to Lenders for
the benefit of Borrower or a Subsidiary of Borrower in amounts deemed adequate
by Borrower's management and no less than those amounts customary in the
industry in which Borrower and its Subsidiaries operate against risks usually
insured against by Persons operating businesses similar to those of Borrower or
its Subsidiaries in the localities where such properties are located.
SECTION 6.21 LABOR MATTERS. Except as set forth on SCHEDULE 6.21, the
Borrower and the Borrower's Subsidiaries have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Borrower's Executive Officers, there are no such
strikes, disputes, slow downs or work stoppages threatened against Borrower or
any of Borrower's Subsidiaries. The hours worked and payment made to employees
of the Borrower and Borrower's Subsidiaries have not been in violation in any
material respect of the Fair Labor Standards Act or any other applicable law
dealing with such matters which could reasonably be expected to have a
Materially Adverse Effect. All payments due from the Borrower and Borrower's
Subsidiaries, or for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as liabilities on the books of the
Borrower and Borrower's
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Subsidiaries where the failure to pay or accrue such liabilities would
reasonably be expected to have a Materially Adverse Effect.
SECTION 6.22 INTERCOMPANY LOANS; DIVIDENDS. The Intercompany Loans and
the Intercompany Loan Documents, to the extent that they exist, have been duly
authorized and approved by all necessary corporate and shareholder action on the
part of the parties thereto, and constitute the legal, valid and binding
obligations of the parties thereto, enforceable against each of them in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, and by general principles of equity. There are no
restrictions on the power of any Consolidated Company to repay any Intercompany
Loan or to pay dividends on capital stock. Intercompany Loans as of the Closing
date are described in SCHEDULE 6.22.
SECTION 6.23 SECURITIES ACTS. Neither Borrower nor any of its
Subsidiaries nor any agent engaged to act on their behalf has, directly or
indirectly, taken or will take any action which would subject the issuance of
the Notes to the provisions of Section 5 of the Securities Act of 1933, as
amended, or to the provisions of any securities or Blue Sky Law of any
applicable jurisdiction.
SECTION 6.24 INVESTMENT COMPANY ACT; HOLDING COMPANY. Neither Borrower
nor any of its Subsidiaries is an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940 or is a "holding company," or a subsidiary or affiliate of a "holding
company," or a "public utility," within the meaning of the Public Utility
Holding Company Act of 1935, as amended or a "public utility" within the meaning
of the Federal Power Act, as amended.
SECTION 6.25 REGULATION G, ETC. Neither Borrower nor any of its
Subsidiaries nor any agent acting on their behalf has taken or will take any
action which might cause this Agreement or the Notes to violate Regulation G, T,
or X or any other regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934, and each case in
effect now or as the same may hereafter be in effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any Obligations remain outstanding that it will:
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SECTION 7.1 CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
each of its Material Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to do so would reasonably be expected
to have a Materially Adverse Effect.
SECTION 7.2 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 7.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of five percent (5%) of Borrower's Consolidated Net Worth in the
aggregate) and Contractual Obligations applicable to or binding on any of them
where the failure to comply with such Requirements of Law and Contractual
Obligations would reasonably be expected to have a Materially Adverse Effect.
SECTION 7.3 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services), which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
SECTION 7.4 KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
SECTION 7.5 VISITATION, INSPECTION, ETC. Permit, and cause each of its
Material Subsidiaries to permit, any representative of the Administrative Agent
or any Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all during normal business
hours and as often as the Administrative Agent or such Lender may reasonably
request after reasonable prior notice to Borrower; provided, however, that at
any time following the occurrence and during the continuance of a Default or an
Event of Default, no prior notice to Borrower shall be required and further,
provided, that in the event any documents and records are subject to any
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contractual confidentiality requirements with any Person, the right to make
copies or extracts therefrom shall be subject to the prior written consent of
the Borrower, which consent will not be unreasonably withheld.
SECTION 7.6 INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against
loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of
such types and in such amounts, including such self-insurance and
deductible provisions, as is customary for such companies under similar
circumstances; provided, however, that in any event Borrower shall use
its best efforts to maintain, or cause to be maintained, insurance in
amounts and with coverages not materially less favorable to any
Consolidated Company as in effect on the date of this Agreement, except
where the costs of maintaining such insurance would, in the judgment of
both Borrower and the Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing
in this Section shall prevent Borrower from discontinuing the operation
or maintenance of any such properties if such discontinuance is, in the
judgment of Borrower, desirable in the conduct of its business or the
business of any Consolidated Company.
SECTION 7.7 REPORTING COVENANTS. Furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 90 days after the end of each fiscal year of Borrower,
balance sheets of the Consolidated Companies as at the end of such
year, presented on a consolidated basis, and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal year, presented on a consolidated basis,
setting forth in each
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case in comparative form the figures for the previous fiscal year, all
in reasonable detail and accompanied by a report thereon of Deloitte &
Touche or other independent public accountants of comparable recognized
national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial
statements present fairly in all material respects the financial
condition as at the end of such fiscal year on a consolidated basis,
and the results of operations and statements of cash flows of the
Consolidated Companies for such fiscal year in accordance with GAAP and
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the end of each fiscal quarter of
Borrower (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Borrower's fiscal year ended at the end
of such quarter, presented on a consolidated basis setting forth in
each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower's previous fiscal year, all
in reasonable detail and certified by the chief financial officer or
principal accounting officer of Borrower that such financial statements
fairly present in all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter on a
consolidated basis, and the results of operations and statements of
cash flows of the Consolidated Companies for such fiscal quarter and
such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year end audit adjustments and
the absence of certain footnotes);
(c) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the
financial statements required pursuant to subsections (a) and (b)
above, a certificate of the president, chief financial officer or
principal accounting officer of Borrower (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists no
Event of Default and no Default under this Agreement, or if there
exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and
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(ii) demonstrating in reasonable detail compliance as at the end of
such fiscal year or such fiscal quarter with Section 7.8 and Sections
8.1 through 8.3;
(d) NOTICE OF DEFAULT. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of
Default or a Default, a certificate of the chief financial officer or
principal accounting officer of Borrower specifying the nature thereof
and the proposed response thereto;
(e) LITIGATION. Promptly after (i) the occurrence thereof,
notice of the institution of or any adverse development in any action,
suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated
Company, or any material property thereof which might have a Materially
Adverse Effect, or (ii) actual knowledge thereof, notice of the threat
of any such action, suit, proceeding, investigation or arbitration;
(f) ENVIRONMENTAL NOTICES. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action,
claim or request for information, either judicial or administrative,
from any governmental authority relating to any actual or alleged
claim, notice of potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or
Hazardous Substance by any Consolidated Company which violation,
action, claim, request, spill, leak, disposal, or release could result
in penalties, fines, claims or other liabilities to any Consolidated
Company in amounts in excess of $5,000,000 individually or when
aggregated with other then pending such matters;
(g) ERISA.
A. Promptly after the occurrence thereof with respect
to any Plan of any Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder, notice of (x) a
"reportable event" described in Section 4043 of ERISA and the
regulations issued from time to time thereunder (other than a
"reportable event" not subject to the provisions for 30 day
notice to the PBGC under such regulations), or (y) any other
event which could subject any Consolidated Company to any tax,
penalty or liability under Title I
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or Title IV of ERISA or Chapter 43 of the Tax Code, or any tax
or penalty resulting from a loss of deduction under Sections
162, 404 or 419 of the Tax Code, where any such taxes,
penalties or liabilities exceed or could exceed $5,000,000 in
the aggregate;
B. Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4),
303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under
Section 401(a)(29) or 412 of the Tax Code with respect to any
Plan of any Consolidated Company or any ERISA Affiliate
thereof;
C. Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning
the intent of the PBGC or any other governmental authority to
terminate a Plan of such Company or ERISA Affiliate thereof
which is subject to Title IV of ERISA, to impose any liability
on such Company or ERISA Affiliate under Title IV of ERISA or
Chapter 43 of the Tax Code;
D. Upon the request of the Administrative Agent,
promptly upon the filing thereof with the Internal Revenue
Service ("IRS") or the Department of Labor ("DOL"), a copy of
IRS Form 5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof which is
subject to Title IV of ERISA;
E. Upon the request of the Administrative Agent, (A)
true and complete copies of any and all documents, government
reports and IRS determination or opinion letters or rulings
for any Plan of any Consolidated Company from the IRS, PBGC or
DOL, (B) any reports filed with the IRS, PBGC or DOL with
respect to a Plan of the Consolidated Companies or any ERISA
Affiliate thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(h) LIENS. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any
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federal statutory Lien, tax or other state or local government Lien or
any other Lien affecting its respective properties, other than those
Liens expressly permitted by Section 8.1;
(i) PUBLIC FILINGS, ETC. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by Borrower to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other statements
made available generally to the public containing material developments
in the business or financial condition of Borrower and the other
Consolidated Companies;
(j) ACCOUNTANTS' REPORTS. Upon request by the Administrative
Agent, promptly upon receipt thereof, copies of all financial
statements of, and all publicly filed reports submitted by, independent
public accountants to Borrower in connection with each annual, interim,
or special audit of Borrower's consolidated financial statements;
(k) TRADEMARKS; LABOR DISPUTES, ETC. Promptly upon the
existence or occurrence thereof, notice of the existence or occurrence
of (i) failure of any Consolidated Company to hold in full force and
effect those material trademarks, service marks, patents, trade names,
copyrights, licenses and similar rights necessary in the normal conduct
of its business, and (ii) any strike, labor dispute, slow down or work
stoppage as described in Section 6.21;
(l) NEW SUBSIDIARIES. Within 90 days after the formation or
acquisition of any Subsidiary, or any other event resulting in the
creation of a new Subsidiary, notice of the formation or acquisition of
such Subsidiary or such occurrence, including a description of the
assets of such entity, the activities in which it will be engaged, and
such other information as the Administrative Agent may request;
(m) MATERIAL SUBSIDIARIES. Promptly upon the occurrence
thereof, notice of any Subsidiary becoming a Material Subsidiary and of
any Material Subsidiary no longer qualifying as such;
(n) INTERCOMPANY ASSET TRANSFERS. Promptly upon the occurrence
thereof, notice of the transfer of any
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assets from Borrower or any Guarantor to any other Consolidated Company
that is not Borrower or a Guarantor (in any transaction or series of
related transactions), excluding sales or other transfers of assets in
the ordinary course of business, where the Asset Value of such assets
is less than $25,000,000; and
(o) OTHER INFORMATION. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative
Agent or any Lender may reasonably request from time to time.
SECTION 7.8 FINANCIAL COVENANTS.
(a) FIXED CHARGE COVERAGE. Maintain as of the last day
of each fiscal quarter, a minimum Fixed Charge Coverage Ratio,
calculated for the immediately preceding four fiscal quarters,
of at least 1.5:1.0.
(b) LEVERAGE RATIO. Maintain as of the last day of each fiscal
quarter, a Leverage Ratio, of less than or equal to 0.45:1.0.
SECTION 7.9 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately upon
its receipt thereof, Borrower shall furnish the Administrative Agent a copy of
any notice received by it or any other Consolidated Company from the holder(s)
of Indebtedness (or from any trustee, agent, attorney, or other party acting on
behalf of such holder(s)) in an amount which, in the aggregate, exceeds
$25,000,000, where such notice states or claims (i) the existence or occurrence
of any default or event of default with respect to such Indebtedness under the
terms of any indenture, loan or credit agreement, debenture, note, or other
document evidencing or governing such Indebtedness, or (ii) the existence or
occurrence of any event or condition which requires or permits holder(s) of any
Indebtedness to exercise rights under any change in control provision. Borrower
agrees to take such actions as may be necessary to require the holder(s) of any
Indebtedness (or any trustee or agent acting on their behalf) incurred pursuant
to documents executed or amended and restated after the Closing Date, to furnish
copies of all such notices directly to the Administrative Agent simultaneously
with the furnishing thereof to Borrower, and that such requirement may not be
altered or rescinded without the prior written consent of the Administrative
Agent.
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SECTION 7.10 ADDITIONAL GUARANTORS. Promptly after (i) the formation or
acquisition (provided that nothing in this Section shall be deemed to authorize
or prohibit the acquisition of any entity) of any Material Subsidiary not listed
on SCHEDULE 6.1, (ii) the transfer of assets to any Consolidated Company if
notice thereof is required to be given pursuant to Section 7.7(n) and as a
result thereof the recipient of such assets becomes a Material Subsidiary, (iii)
the occurrence of any other event creating a new Material Subsidiary, Borrower
shall execute and deliver, and cause to be executed and delivered Guaranty
Agreements from each such Material Subsidiary, together with related documents
of the kind described in Section 5.1, all in form and substance satisfactory to
the Administrative Agent and the Required Lenders. As used in this Section,
Material Subsidiary shall not include a Foreign Subsidiary.
SECTION 7.11 FINANCIAL STATEMENTS; FISCAL YEAR. Borrower shall make no
change in the dates of the fiscal year now employed for accounting and reporting
purposes without the prior written consent of the Administrative Agent and the
Required Lenders, which consent shall not be unreasonably withheld.
SECTION 7.12 OWNERSHIP OF GUARANTORS. Borrower shall maintain at least
its percentage of ownership existing as of the date hereof of all Guarantors,
and shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor, without the written consent of the Administrative
Agent and the Required Lenders, which consent will not be unreasonably withheld
or delayed.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Obligations remain outstanding, Borrower will not and will not permit any
Consolidated Subsidiary to:
SECTION 8.1 LIENS. Create, incur, assume or suffer to exist any Lien on
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the date hereof disclosed on SCHEDULE
8.1;
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any
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refinancing thereof, provided that such Lien does not extend to any
other property, and provided further that the aggregate principal
amount of Indebtedness secured by all such Liens at any time does not
exceed $150,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) Statutory Liens of landlords, existing contractual Liens
of landlords, future contractual Liens of landlords which would not
reasonably be expected to have a Materially Adverse Effect and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens imposed
by law created in the ordinary course of business for amounts not yet
due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(f) Liens resulting from zoning, easements, and restrictions
on the use of such real estate, or rights reserved or vested in
governmental authority, which do not materially impair the use of such
real estate;
(g) Liens arising under ERISA;
(h) Liens relating to an accounts receivable securitization
program in an amount not to exceed $300,000,000; and
(i) Any other Lien consented to by the Required Lenders, which
consent will not be unreasonably withheld or delayed.
SECTION 8.2 MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate
with any other Person, other than Borrower or another Subsidiary, or sell,
lease, or otherwise dispose of its accounts, property or other assets (including
capital stock of Subsidiaries), or, except for the purchase of capital stock as
an investment in a Subsidiary as permitted by subsections (a) and (b) in Section
8.3, below, purchase, lease or otherwise acquire all or any substantial portion
of the property or assets (including capital stock) of any
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Person; provided, however, that the foregoing restrictions on asset sales shall
not be applicable to (i) sales of equipment or other personal property being
replaced by other equipment or other personal property purchased as a capital
expenditure item having comparable values, (ii) sale, lease or transfer of
assets of the Borrower or any Subsidiary to the Borrower or to any other
Subsidiary, (iii) sales of inventory in the ordinary course of business, (iv)
other asset sales (including the stock of Subsidiaries) where, on the date of
execution of a binding obligation to make such asset sale (provided that if the
asset sale is not consummated within six (6) months of such execution, then on
the date of consummation of such asset sale rather than on the date of execution
of such binding obligation), the Asset Value of asset sales occurring after the
Closing Date, taking into account the Asset Value of the proposed asset sale,
would not exceed twenty-five percent (25%) of Borrower's assets, since the
Closing Date and (v) the sale of accounts receivable in an amount permitted by
Section 8.3(h) through an accounts receivable securitization program; provided
further, that the foregoing restrictions on mergers shall not apply to mergers
involving Borrower and another entity, provided Borrower is the surviving
entity, and mergers between a Subsidiary of Borrower and Borrower or between
Subsidiaries of Borrower provided that, in either case, upon consummation of
such mergers, Borrower is in compliance with this Section 8.2; provided,
however, that no transaction pursuant to clauses (i), (ii), (iv) or the second
proviso above shall be permitted if any Default or Event of Default otherwise
exists at the time of such transaction or would otherwise exist as a result of
such transaction.
SECTION 8.3 INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries, other
than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date
or become Guarantors in accordance with Section 7.10 after the Closing
Date; provided, however, nothing in this Section 8.3 shall be deemed to
authorize or prohibit an investment pursuant to this subsection (a) in
any entity that is not a Subsidiary and a Guarantor prior to such
investment;
(b) Investments in Subsidiaries, other than those Subsidiaries
that are or become Guarantors under this Agreement, or unless otherwise
permitted by this Section 8.3, not to exceed $25,000,000 and
Investments in such Subsidiaries in excess of $25,000,000 as approved
by the Administrative Agent and the Required Lenders, which approval
will not be unreasonably withheld;
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(c) acquisition of or an increase in a minority position in
another Person for which Borrower pays cash not to exceed $100,000,000
and/or conveys shares of its common stock in exchange for equity
securities of such Person;
(d) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency
thereof and maturing within three years from the date of creation
thereof;
(e) commercial paper, bankers acceptances and corporate
obligations maturing within one year from the date of creation thereof
having a rating at the time as of which any determination is made of
P-1 (or higher) according to Moody's or as A-1 (or higher) according to
S&P or the equivalent thereof if by another nationally recognized
credit rating agency;
(f) time deposits maturing within one year from the date of
purchase thereof, including certificates of deposit issued by any
Lender and any office located in the United States of any bank or trust
company which is organized under the laws of the United States or any
state thereof and has total assets aggregating at least $500,000,000,
including without limitation, any such deposits in Eurodollars issued
by a foreign branch of any such bank or trust company;
(g) Investments made by Plans;
(h) the sale of accounts receivable in an amount not to exceed
$300,000,000 through an accounts receivable securitization program; and
(i) tax-exempt securities having a rating at the time at which
any determination is made of A-1 (or higher) according to S&P or a
rating of VMIG-1 (or higher) according to Moody's or the equivalent
thereof, if by another nationally recognized credit rating agency;
(j) advances to employees in the ordinary course of business
not to exceed $10,000,000 at any one time;
(k) Investments in foreign joint ventures and/or other
non-consolidated entities in an aggregate amount not exceeding ten
percent (10%) of the Consolidated Net Worth of the Borrower;
(l) options to purchase or lease property in the ordinary
course of business; and
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(m) Mutual funds consisting of investments described in
subsections (d), (e) and (f) of this Section 8.3 except that such funds
can invest in instruments rated A-2/P-2 or the equivalent with an
average maturity of less than one year and/or money market funds.
SECTION 8.4 TRANSACTIONS WITH AFFILIATES.
(a) Except in conjunction with an accounts receivable
securitization program as permitted in this Agreement, enter into any
material transaction or series of related transactions which in the
aggregate would be material, whether or not in the ordinary course of
business, with any Affiliate of any Consolidated Company (but excluding
any Affiliate which is also a Consolidated Company), other than on
terms and conditions substantially as favorable to such Consolidated
Company as would be obtained by such Consolidated Company at the time
in a comparable arm's length transaction with a Person other than an
Affiliate.
(b) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures
used in the manufacturing or production operations of any Consolidated
Company, or convey or transfer to any other Consolidated Company any
other assets (excluding conveyances or transfers in the ordinary course
of business) if at the time of such conveyance or transfer any Default
or Event of Default exists or would exist as a result of such
conveyance or transfer.
SECTION 8.5 OPTIONAL PREPAYMENTS. Directly or indirectly, prepay,
purchase, redeem, retire, defease or otherwise acquire, or make any optional
payment on account of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities set forth in
SCHEDULE 6.13(a), (iii) Intercompany Loans set forth in SCHEDULE 6.22, and/or
outstanding pursuant to Section 8.3, (iv) Subordinated Debt, in form and
substance acceptable to the Administrative Agent and the Required Lenders, as
evidenced by their written consent, issued to refinance existing Subordinated
Debt (v) trade payables incurred in the ordinary course of business and (vi)
prepayments of Indebtedness outstanding pursuant to an accounts receivable
securitization program as permitted in this Agreement.
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SECTION 8.6 CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole.
SECTION 8.7 ERISA. Take or fail to take any action with respect to any
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plans which are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including without
limitation (i) establishing any such Plan, (ii) amending any such Plan (except
where required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit liabilities,
as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under
Title IV of ERISA with respect to any such Plan, without first obtaining the
written approval of the Administrative Agent and the Required Lenders, where
such actions or failures could result in a Material Adverse Effect.
SECTION 8.8 ADDITIONAL NEGATIVE PLEDGES. Create or otherwise cause or
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms of any agreement,
instrument or other document pursuant to which any Indebtedness incurred in
connection with the Liens permitted by Section 8.1(a) is incurred by any
Consolidated Company, so long as such prohibition or restriction applies only to
the property or asset being financed by such Indebtedness, and (ii) any
requirement of applicable law or any regulatory authority having jurisdiction
over any of the Consolidated Companies.
SECTION 8.9 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
COMPANIES. Create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions on such Consolidated
Company's stock, or (ii) pay any indebtedness owed to Borrower or any other
Consolidated Company, or (iii) transfer any of its property or assets to
Borrower or any other Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents.
SECTION 8.10 ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), modify, amend, cancel or rescind the Intercompany Loans or
Intercompany Loan Documents, or any agreements or documents evidencing or
governing Subordinated Debt or senior Indebtedness (except that a loan between
Consolidated Companies may be modified or amended.
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ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1 PAYMENTS. Borrower shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans or any reimbursement obligation with respect to
Letters of Credit, or Borrower shall fail to make within three (3) Business Days
after the due date thereof any payment of interest, fee or other amount payable
hereunder;
SECTION 9.2 COVENANTS WITHOUT NOTICE. Borrower shall fail to observe or
perform any covenant or agreement contained in Sections 7.7(h), 7.8, 7.11, and
8.1 through 8.10;
SECTION 9.3 OTHER COVENANTS. Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement, other than those referred
to in Sections 9.1 and 9.2, and, if capable of being remedied, such failure
shall remain unremedied for 30 days after the earlier of (i) Borrower's
obtaining knowledge thereof, or (ii) written notice thereof shall have been
given to Borrower by Administrative Agent or any Lender;
SECTION 9.4 REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such Person pursuant to the terms
of this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 9.5 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) exceeding $25,000,000.00 in the aggregate;
SECTION 9.6 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements (other than those referenced in Section 9.5) contained
in any agreements or instruments relating to any of its Indebtedness exceeding
$25,000,000.00 in the aggregate, or any other event shall occur if
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the effect of such failure or other event is to accelerate, or to permit the
holder of such Indebtedness or any other Person to accelerate, the maturity of
such Indebtedness; or any such Indebtedness shall be required to be prepaid
(other than by a regularly scheduled required prepayment) in whole or in part
prior to its stated maturity;
SECTION 9.7 BANKRUPTCY. Borrower or any other Consolidated Company
shall commence a voluntary case concerning itself under the Bankruptcy Code or
an involuntary case for bankruptcy is commenced against any Consolidated Company
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or any substantial
part of the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension of
payments or any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction, whether now or hereafter in effect, relating to
any Consolidated Company or there is commenced against any Consolidated Company
any such proceeding which remains undismissed for a Period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.8 ERISA. A Plan of a Consolidated Company or a Plan subject
to Title IV of ERISA of any of its ERISA Affiliates:
(a) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any plan year
or a waiver of such standard is sought or granted with respect to such
Plan under applicable law, the terms of such Plan or Section 412 of the
Tax Code or Section 303 of ERISA; or
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(b) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such Plan;
or
(c) shall require a Consolidated Company to provide security
under applicable law, the terms of such Plan, Section 401 or 412 of the
Tax Code or Section 306 or 307 of ERISA; or
(d) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
SECTION 9.9 MONEY JUDGMENT. A judgment or order for the payment of
money in excess of $25,000,000.00 or otherwise having a Materially Adverse
Effect shall be rendered against Borrower or any other Consolidated Company and
such judgment or order shall continue unsatisfied (in the case of a money
judgment) and in effect for a period of 30 days during which execution shall not
be effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 9.10 OWNERSHIP OF CREDIT PARTIES AND PLEDGED ENTITIES. If
Borrower shall at any time fail to own and control the required percentage of
the voting stock of any Guarantor, either directly or indirectly through a
Wholly Owned Subsidiary of Borrower;
SECTION 9.11 CHANGE IN CONTROL OF BORROWER.
(a) Any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) shall become the "beneficial
owner(s)" (as defined in said Rule 13d-3) of more than forty percent
(40%) of the shares of the outstanding common stock of Borrower
entitled to vote for members of Borrower's board of directors; or
(b) any event or condition shall occur or exist which,
pursuant to the terms of any change in control provision, requires or
permits the holder(s) of Indebtedness of any Consolidated Company to
require that such Indebtedness be redeemed, repurchased, defeased,
prepaid or repaid, in whole or in part, or the maturity of such
Indebtedness to be accelerated in any respect, except for the puts
arising at the end of years 5 and 10 on the Convertible Subordinated
Debt.
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SECTION 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Borrower or
any other Credit Party, or at any time it is or becomes unlawful for Borrower or
any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Borrower or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Borrower
or any such Credit Party;
SECTION 9.13 ATTACHMENTS. An attachment or similar action shall be made
on or taken against any of the assets of any Consolidated Company with an Asset
Value exceeding $750,000 in aggregate and is not removed, suspended or enjoined
within 30 days of the same being made or any suspension or injunction being
lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its claims
against Borrower or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender shall terminate
immediately and any Facility Fee shall forthwith become due and payable without
any other notice of any kind; and (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be due,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower; provided, that, if an Event of Default specified in Section 9.7 shall
occur, the result which would occur upon the giving of written notice by the
Administrative Agent to any Credit Party, as specified in clauses (i) and (ii)
above, shall occur automatically without the giving of any such notice.
ARTICLE X
THE AGENTS
SECTION 10.1 APPOINTMENT OF AGENTS. Each Lender hereby designates
SunTrust as Administrative Agent, Bank of America as Syndication Agent, and
NationsBank as Documentation Agent (collectively, the "Agents")to administer all
matters concerning the Loans and Letters of Credit and to act as herein
specified. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of a Note shall be deemed irrevocably to
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authorize, the Agents to take such actions on its behalf under the provisions of
this Agreement, the other Credit Documents, and all other instruments and
agreements referred to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Agents by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Agents may perform any of their duties
hereunder by or through their agents or employees. The provisions of this
Section 10.1 are solely for the benefit of the Agents, and Borrower and the
other Consolidated Companies shall not have any rights as third party
beneficiaries of any of the provisions hereof. In performing their functions and
duties under this Agreement, the Agents shall act solely as agents of the
Lenders and do not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with or for the Borrower
and the other Consolidated Companies.
SECTION 10.2 NATURE OF DUTIES OF AGENTS. The Agents shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the other Credit Documents. None of the Agents nor any of their respective
officers, directors, employees or agents shall be liable for any action taken or
omitted by it as such hereunder or in connection herewith, unless caused by its
gross negligence or willful misconduct. The duties of the Agents shall be
ministerial and administrative in nature; the Agents shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Agents any obligations in respect of this Agreement or the
other Credit Documents except as expressly set forth herein.
SECTION 10.3 LACK OF RELIANCE ON THE AGENTS.
(a) Independently and without reliance upon the Agents, each
Lender, to the extent it deems appropriate, has made and shall continue
to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the
taking or not taking of any action in connection herewith, and (ii) its
own appraisal of the creditworthiness of the Credit Parties, and,
except as expressly provided in this Agreement, the Agents shall have
no duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the
Extensions of Credit or at any time or times thereafter.
(b) The Agents shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein
or in any document,
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certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes,
the Guaranty Agreements, or any other documents contemplated hereby or
thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this
Agreement, the Notes, the Guaranty Agreements, or the other documents
contemplated hereby or thereby, or the financial condition of the
Credit Parties, or the existence or possible existence of any Default
or Event of Default; provided, however, to the extent that the Agents
have been advised that a Lender has not received any information
formally delivered to any of the Agents pursuant to Section 7.7, such
Agent shall deliver or cause to be delivered such information to such
Lender.
SECTION 10.4 CERTAIN RIGHTS OF THE AGENTS. If any of the Agents shall
request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, such
Agent shall be entitled to refrain from such act or taking such act, unless and
until such Agent shall have received instructions from the Required Lenders; and
the Agents shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agents as a result of the Agents acting or refraining
from acting hereunder in accordance with the instructions of the Required
Lenders.
SECTION 10.5 RELIANCE BY AGENTS. The Agents shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message, cable
gram, radiogram, order or other documentary, teletransmission or telephone
message believed by them to be genuine and correct and to have been signed, sent
or made by the proper Person. The Agents may consult with legal counsel
(including counsel for any Credit Party), independent public accountants and
other experts selected by them and shall not be liable for any action taken or
omitted to be taken by them in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 10.6 INDEMNIFICATION OF ADMINISTRATIVE AGENT. To the extent the
Agents are not reimbursed and indemnified by the Credit Parties, each Lender
will reimburse and indemnify the Administrative Agent, ratably according to the
respective amounts of the Loans outstanding under all Facilities (or if no
amounts are outstanding, ratably in accordance with the Total Commitments), in
either case, for and against any and all liabilities, obligations,
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losses, damages, penalties, actions, judgments, suits, costs, expenses
(including reasonable counsel fees and disbursements) or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Administrative Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 10.7 THE AGENTS IN THEIR INDIVIDUAL CAPACITY. With respect to
their obligations to extend credit under this Agreement, the Loans made by them
and the Notes issued to them, the Agents shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though they were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Agents in their
individual capacity. The Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if they were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
SECTION 10.8 HOLDERS OF NOTES. The Agents may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
SECTION 10.9 SUCCESSOR AGENTS.
(a) Any Agent may resign at any time by giving written notice
thereof to the Lenders and Borrower and may be removed at any time with
or without cause by the Required Lenders; provided, however, none of
the Agents may resign or be removed until a successor Agent has been
appointed and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent, Syndication Agent or
Documentation
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Agent, as the case may be, subject to Borrower's prior written
approval, which approval will not be unreasonably withheld. If no such
successor Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
Syndication Agent or Documentation Agent, as the case may be, subject
to Borrower's prior written approval, which approval will not be
unreasonably withheld, which successor Administrative Agent,
Syndication Agent or Documentation Agent, as the case may be, shall be
a bank which maintains an office in the United States, or a commercial
bank organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined capital
and surplus of at least $100,000,000. If at any time SunTrust is
removed as or ceases to be a Lender, SunTrust shall simultaneously
resign as Administrative Agent.
(b) Upon the acceptance of any appointment as the
Administrative Agent, the Syndication Agent or the Documentation Agent,
as the case may be, hereunder by a successor Agent, such successor
Administrative Agent, Syndication Agent or Documentation Agent, as the
case may be, shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative
Agent, Syndication Agent or Documentation Agent, as the case may be,
and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Administrative Agent, Syndication
Agent or Documentation Agent, as the case may be, the provisions of
this Article X shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Administrative Agent,
Syndication Agent or Documentation Agent, as the case may be, under
this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
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hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Administrative Agent and Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified pursuant
to this Section and the appropriate answerback is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified in this Section
and the appropriate confirmation is received, or (iv) if given by any other
means (including, without limitation, by air courier), when delivered or
received at the address specified in this Section; provided that notices to the
Administrative Agent shall not be effective until received.
SECTION 11.2 AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.1 or Section 5.2, (ii)
increase the Commitments or other contractual obligations to Borrower under this
Agreement, (iii) reduce the principal of, or interest on, the Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Notes or any fees hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number or identity of Lenders which shall be required for the Lenders or any
of them to take any action hereunder, (vi) release any Guarantor from its
obligations under any Guaranty Agreements, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 11.2. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required hereinabove to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement or under any other Credit Document.
SECTION 11.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of any Agent, any Lender or any holder of a Note in exercising any right or
remedy hereunder or under any other Credit Document, and no course of dealing
between any Credit Party and any Agent, any Lender or the holder of any Note
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of
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any other right or remedy hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any Agent, any Lender or the holder of any Note would otherwise
have. No notice to or demand on any Credit Party not required hereunder or under
any other Credit Document in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agents, the Lenders or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
SECTION 11.4 PAYMENT OF EXPENSES, ETC. Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of
the Administrative Agent, the Documentation Agent and/or the
Syndication Agent in the negotiation, syndication, documentation and
administration (both before and after the execution hereof and
including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Administrative Agent, the
Documentation Agent and/or the Syndication Agent and the Lenders with
respect thereto) of, and in connection with the preparation, execution
and delivery of, preservation of rights under, enforcement of, and,
after a Default or Event of Default, refinancing, renegotiation or
restructuring of, this Agreement and the other Credit Documents and the
documents and instruments referred to therein, and any amendment,
waiver or consent relating thereto (including, without limitation, the
reasonable fees actually incurred and disbursements of counsel for the
Administrative Agent, the Documentation Agent and/or the Syndication
Agent), and in the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel, including without
limitation in-house attorneys' fees), for any of the Lenders;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Letters of
Credit, the Notes and any other Credit Documents, any collateral
described therein, or any payments due thereunder, and save each Lender
harmless from and against any and all liabilities with respect to or
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resulting from any delay or omission to pay such Taxes; and
(c) indemnify each Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and
hold each of them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any of them
(whether or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any investigation,
litigation or other proceeding related to any actual or proposed use of
the proceeds of any of the Extensions of Credit or any Credit Party's
entering into and performing of the Agreement, the Notes, or the other
Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign
counsel) incurred in connection with any such investigation, litigation
or other proceeding; provided, however, Borrower shall not be obligated
to indemnify any Indemnitee for any of the foregoing arising out of
such Indemnitee's gross negligence or willful misconduct;
(d) without limiting the indemnities set forth in subsection
(c) above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost
of investigating or defending any claim and whether or not such claim
is ultimately defeated, and whether such claim arose before, during or
after any Credit Party's ownership, operation, possession or control of
its business, property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any
compromise or settlement by the Indemnitee or Indemnitees to the
holders of any such claim), lawsuits, liabilities, obligations,
actions, judgments, suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination or destruction
of natural resources), penalties and fines of any kind or nature
whatsoever (including without limitation in all cases the reasonable
fees actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws
based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee under
this Agreement, any other Credit Document or any related documents (but
excluding those incurred, suffered or
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sustained by any Indemnitee as a result of any action taken by or on
behalf of the Lenders with respect to any Subsidiary of Borrower (or
the assets thereof) owned or controlled by the Lenders); provided,
however, Borrower shall not be obligated to indemnify any Indemnitee
for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct.
If and to the extent that the obligations of Borrower under this Section 11.4
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 11.5 RIGHT OF SETOFF. In addition to and not in limitation of
all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's Obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's Obligations hereunder
and under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Borrower and the
Administrative Agent of any offset hereunder.
SECTION 11.6 BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto, provided that Borrower may not assign or
transfer any of its interest hereunder without the prior written
consent of all the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for
the account of, any of its branch offices or the office of an Affiliate
of such Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion
of any of its Commitments and the Loans at the time owing to it and the
Notes held by it) to any Eligible Assignee or any other Person;
provided, however, that (i) the Administrative Agent and Borrower must
give their prior written consent to such assignment (which consent
shall not be unreasonably
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withheld or delayed in conjunction with any such assignment to an
Eligible Assignee, but which consent may be withheld in the sole
discretion of either the Administrative Agent or the Borrower in
conjunction with any such assignment to any Person which is not an
Eligible Assignee), (ii) the amount of the Commitments, in the case of
the Revolving Loan Commitments and the Line of Credit Loan Commitments,
or Loans, in the case of assignment of Loans, of the assigning Lender
subject to each assignment (determined as of the date the assignment
and acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000, and (iii) the
parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a Note
or Notes subject to such assignment and a processing and recordation
fee of $3,500 payable by the Assignee. Borrower shall not be
responsible for such processing and recordation fee or any costs or
expenses incurred by any Lender or the Administrative Agent in
connection with such assignment. From and after the effective date
specified in each Assignment and Acceptance, which effective date shall
be at least five (5) Business Days after the execution thereof, the
assignee thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the rights
and obligations of a Lender under this Agreement. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of
such Assignment and Acceptance a minimum aggregate amount of
Commitments or Loans, as the case may be, of $10,000,000 or such lessor
amount (which amount may be zero) as the Administrative Agent, the
Borrower and such assigning Lender may agree upon in writing; provided,
however, no such minimum amount shall be required with respect to any
such assignment made at any time there exists an Event of Default
hereunder. Within five (5) Business Days after receipt of the notice
and the Assignment and Acceptance, Borrower, at its own expense, shall
execute and deliver to the Administrative Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such
assignee in a principal amount equal to the applicable Commitments or
Loans assumed by it pursuant to such Assignment and Acceptance and new
Note or Notes to the assigning Lender in the amount of its retained
Commitment or Commitments or amount of its retained Loans. Such new
Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be
dated the date of the surrendered Note or Notes which they replace, and
shall otherwise be in substantially the form attached hereto.
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(d) Each Lender may, without the consent of Borrower and the
Administrative Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments in the Loans
owing to it and the Notes held by it), provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participating bank
or other entity shall not be entitled to the benefit (except through
its selling Lender) of the cost protection provisions contained in
Article IV of this Agreement, and (iv) Borrower and the Agents and
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement and the other Credit Documents, and such Lender shall
retain the sole right to enforce the obligations of Borrower relating
to the Loans and to approve any amendment, modification or waiver of
any provisions of this Agreement. Any Lender selling a participation
hereunder shall provide prompt written notice to Borrower of the name
of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Borrower
or the other Consolidated Companies furnished to such Lender by or on
behalf of Borrower or any other Consolidated Company. With respect to
any disclosure of confidential, non-public, proprietary information,
such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed
participant or assignee shall agree in writing, a copy of which shall
be furnished to Borrower, not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is
necessary to show such information, each of whom shall be informed of
the confidential nature of the information, (ii) in any statement or
testimony pursuant to a subpoena or order by any court, governmental
body or other agency asserting jurisdiction over such entity, or as
otherwise required by law (provided prior notice is given to Borrower
and the Administrative Agent unless otherwise prohibited by the
subpoena, order or law), and (iii) upon the request
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or demand of any regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee shall further agree
to return all documents or other written material and copies thereof
received from any Lender, any Agent or Borrower relating to such
confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of
its rights in this Agreement and the Notes issued to it to a Federal
Reserve Bank; provided that no such assignment shall release such
Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have been
levied or imposed so as to require withholdings or deductions by
Borrower and payment by Borrower of additional amounts to any Lender as
a result thereof, (ii) any Lender shall make demand for payment of any
material additional amounts as compensation for increased costs
pursuant to Section 4.10 or for its reduced rate of return pursuant to
Section 4.16, or (iii) any Lender shall decline to consent to a
modification or waiver of the terms of this Agreement or the other
Credit Documents requested by Borrower, then and in such event, upon
request from Borrower delivered to such Lender and the Administrative
Agent, such Lender shall assign, in accordance with the provisions of
Section 11.6(c), all of its rights and obligations under this Agreement
and the other Credit Documents to another Lender or an Eligible
Assignee selected by Borrower, in consideration for the payment by such
assignee to the Lender of the principal of, and interest on, the
outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Total Commitment hereunder, together with
any and all other amounts owing to such Lender under any provisions of
this Agreement or the other Credit Documents accrued to the date of
such assignment.
SECTION 11.7 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES AND OTHER CREDIT DOCUMENTS SHALL
BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE
OF FLORIDA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT
88
95
MAY BE BROUGHT IN THE CIRCUIT COURT OF ORANGE COUNTY, FLORIDA, OR ANY
OTHER COURT OF THE STATE OF FLORIDA OR OF THE UNITED STATES OF AMERICA
FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY
JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LITIGATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) THE BORROWER HEREBY IRREVOCABLY DESIGNATES CSC, THE UNITED
STATES CORPORATION COMPANY, 0000 XXXX XXXXXX, XXXXXXXXXXX, XXXXXXX
00000, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND
ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES, THE OTHER CREDIT DOCUMENTS OR ANY DOCUMENT
RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON
SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY
THE SERVER OF SUCH PROCESS BY MAIL TO BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE
SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION AGENT,
ANY LENDER, ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
SECTION 11.8 INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled to protect and enforce its rights pursuant to
this Agreement and its
89
96
Notes, and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
SECTION 11.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11.10 EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed
a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent pursuant to
Section 5.1 or, in the case of the Lenders, shall have given to the
Administrative Agent written or telex notice (actually received) that
the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 4.7(b), 4.9,
4.10, 4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty
(120) days after the payment in full of the Notes after the Final
Maturity Date and expiration of all Letters of Credit. All
representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement,
the other Credit Documents, and such other agreements and documents,
the making of the Loans hereunder, and the execution and delivery of
the Notes.
SECTION 11.11 SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.12 INDEPENDENCE OF COVENANTS. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
90
97
SECTION 11.13 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
If (i) any preparation of the financial statements referred to in Section 7.7
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions) (other than changes mandated by FASB 106)
result in a material change in the method of calculation of financial covenants,
standards or terms found in this Agreement, (ii) there is any change in
Borrower's fiscal quarter or fiscal year as provided herein, or (iii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Borrower and the Lenders agree to
enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
any of the Consolidated Companies' financial condition shall be the same after
such changes as if such changes had not been made. Unless and until such
provisions have been so amended, the provisions of this Agreement shall govern.
SECTION 11.14 HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents, and
the agreements and documents required to be delivered pursuant to the terms of
this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 11.15 TIME IS OF THE ESSENCE. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.16 USURY. It is the intent of the parties hereto not to
violate any federal or state law, rule or regulation pertaining either to usury
or to the contracting for or charging or collecting of interest, and Borrower
and Lenders agree that, should any provision of this Agreement or of the Notes,
or any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to Lenders by Borrower under this Agreement.
SECTION 11.17 CONSTRUCTION. Should any provision of this Agreement
require judicial interpretation, the parties hereto
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agree that the court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be more
strictly construed against the party who itself or through its agents prepared
the same, it being agreed that Borrower, Administrative Agent, Syndication
Agent, Documentation Agent, Lenders and their respective agents have
participated in the preparation hereof.
SECTION 11.18 CONFIDENTIALITY. None of the Administrative Agent, the
Syndicated Agent, the Documentation Agent, or any Lender shall disclose any
confidential, non-public, proprietary information concerning the Consolidated
Companies to any Person without the consent of the Borrower, other than (a) to a
Lender's Affiliates and the officers, directors, employees, agents, counsel,
auditors and advisors of such Person or such Person's Affiliates, (b) to a
proposed assignee or to a proposed participant; PROVIDED that prior to any such
disclosure, the proposed assignee or participant shall deliver to the Borrower a
written agreement pursuant to Section 11.6(e), (c) as required by any law, rule
or regulation or judicial process and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking or any
aspects of such Lender's or Agent's activities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
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99
[SIGNATURE PAGE TO REVOLVING CREDIT AND LINE OF CREDIT
AGREEMENT BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
BORROWER:
OFFICE DEPOT, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Vice President
ADDRESS FOR NOTICES:
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
WITH COPY TO:
Legal Department
Office Depot, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Treasurer
Office Depot, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
100
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION,
individually and as
Administrative Agent
000 X. Xxxxxx Xxxxxx
00xx Xxxxx - Xxxxx Xx: /s/ Xxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxx 00000 ----------------------------
Xxxxxx X. Xxxxx
Vice President
Attn: Xxxxxx X. Xxxxx
Vice President
Telex No. 4415-11
Answerback: SunTrust Bank
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
000 X. Xxxxxx Xxxxxx
10th Floor - Tower
--------------------------------------------------------------------------------
Revolving Loan Commitment: $17,500,000
Pro Rata Share of Revolving Loan Commitment: 6.3636%
Line of Credit Commitment: $25,000,000
Pro Rata Share of Line of Credit Commitment: 100%
101
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: ROYAL BANK OF CANADA,
individually and as Co-Agent
Grand Cayman (North America
No. 1) Branch
c/o New York Branch
Financial Square, 23rd Floor By: /s/ Xxxxx X. Xxxx
32 Old Slip ----------------------------
Xxx Xxxx, XX 00000-0000 Name: Xxxxx X. Xxxx
----------------------------
Title: Retail Group Manager
----------------------------
FOR ALL MATTERS EXCEPT THOSE Payment Office:
RELATED TO COMPETITIVE BID Royal Bank of Canada
REVOLVING LOANS: Financial Square
Attn: Xxxxxxxx Xxxxxx 32 Old Slip
Telephone No. (000) 000-0000 Xxx Xxxx, XX 00000-0000
Telecopy No. (000) 000-0000 Attn: Xxxxxxxx Xxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
FOR MATTERS RELATED TO
COMPETITIVE BID REVOLVING Directed through our ABA
LOANS: System to:
Attn: Xxxxx Xxxxxxxxx Pay Chase Manhattan Bank
Telephone No. (000) 000-0000 New York, NY
Telecopy No. (000) 000-0000 (ABA #000000000 for credit to
Acct. No. 920-1-033363)
IN ALL CASES WITH A COPY TO: For Account RBC New York
One North Franklin, CHIPS: ABA 0002
Suite 700 Pay Chase Manhattan Bank
Xxxxxxx, XX 00000 For Account RBC New York
Attn: Xxxxx X. Xxxx UID025408
Retail Group Manager Marked RE: OFFICE DEPOT, INC.
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.9091%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
102
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: NATIONSBANK, NATIONAL
ASSOCIATION, individually and
as Documentation Agent
000 X.X. 0xx Xxxxxx, 00xx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
FL 7950-14-02 ----------------------------
Xxxxx, XX 00000 Name: Xxxxxx X. Xxxxxxxx
Attn: Xxxx Xxxxxx ----------------------------
Vice President Title: Sr. Vice President
----------------------------
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
NationsBank, National Association
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------
Revolving Loan Commitment: $42,500,000
Pro Rata Share of Revolving Loan Commitment: 15.4546%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
103
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: PNC BANK, NATIONAL ASSOCIATION
000 X. Xxxxxxxxx Xx.
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Attn: Xx. Xxx Xxxx Title: Vice President
Vice President ----------------------------
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $22,500,000
Pro Rata Share of Revolving Loan Commitment: 8.1818%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
104
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as
Syndication Agent
000 Xxxxx XxXxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx
Xxxxxxx, XX 00000 -----------------------------
Attn: Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx
Vice President Vice President
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
Bank of America National Trust
and Savings Association
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy No. (000) 000-0000
Telephone No.(000) 000-0000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $42,500,000
Pro Rata Share of Revolving Loan Commitment: 15.4546%
Line of Credit Commitment: -0-
Pro Rata Share of Line of Credit Commitment: 0%
105
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: CITIBANK, N.A., individually
and as Co-Agent
000 Xxxx Xxxxxx By: /s/ Xxxx Xxxxx
12th Floor, Zone 15 ----------------------------
Xxx Xxxx, Xxx Xxxx 00000 Name: Xxxx Xxxxx
Attn: Xxxx Xxxxxxx, ----------------------------
Vice President Title: Vice President
----------------------------
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
CitiBank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.9091%
Line of Credit Commitment: - 0 -
Pro Rata Share of Line of Credit Commitment: 0%
106
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: THE FIRST NATIONAL BANK OF
CHICAGO, individually and as
Co-Agent
One First National Plaza By: /s/ Xxxx X. Xxxxx
Suite 0086 ----------------------------
Xxxxxxx, Xxxxxxxx 00000 Name: Xxxx X. Xxxxx
Attn: Xxxx X. Xxxxx, ----------------------------
Managing Director Title: Managing Director
----------------------------
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
Telephone No.(000) 000-0000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.9091%
Line of Credit Commitment: - 0 -
Pro Rata Share of Line of Credit Commitment: 0%
107
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: CORESTATES BANK, N.A.
0000 Xxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Xxxxxxxxxxxx, XX 00000 -----------------------------
Attn: Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx,
Vice President Vice President
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telecopy No. (000) 000-0000
Telephone No.(000) 000-0000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $22,500,000
Pro Rata Share of Revolving Loan Commitment: 8.1818%
Line of Credit Commitment: - 0 -
Pro Rata Share of Line of Credit Commitment: 0%
108
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: FIFTH THIRD BANK
00 Xxxxxxxx Xxxxxx Xxxxx By: /s/ Xxxxx X. X. Xxxxx
ND #109054 ----------------------------
Xxxxxxxxxx, XX 00000 Xxxxx X. X. Xxxxx,
Attn: Xxxxx X. X. Xxxxx, Assistant Vice President
Assistant Vice President
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $22,500,000
Pro Rata Share of Revolving Loan Commitment: 8.1818%
Line of Credit Commitment: - 0 -
Pro Rata Share of Line of Credit Commitment: 0%
109
[SIGNATURE PAGE TO REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS ADMINISTRATIVE AGENT,
AND OFFICE DEPOT, INC.]
Address for Notices: HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxxx ------------------------------
Xxx Xxxxxxx, XX 00000 Xxxxxxxxx X. Xxxxxxx,
Attn: Xxxxxxxxx X. Xxxxxxx Banking Officer
Banking Officer
Telecopy No. (000) 000-0000
Telephone No. (000) 000-0000
Payment Office:
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Revolving Loan Commitment: $15,000,000
Pro Rata Share of Revolving Loan Commitment: 5.4545%
Line of Credit Commitment: - 0 -
Pro Rata Share of Line of Credit Commitment: 0%
110
CLOSING CERTIFICATE
-------------------
Pursuant to Section 5.1 of the Revolving Credit and Line of Credit
Agreement dated as of February 20, 1998 (the "Credit Agreement") by and among
OFFICE DEPOT, INC., a Delaware corporation ("Office Depot"), SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication Agent, NATIONSBANK,
NATIONAL ASSOCIATION, as Documentation Agent, the Co-Agents party thereto and
the other banks and lending institutions listed on the signature pages thereto,
the undersigned in their respective capacities as officers, directors, or
authorized signatories of Office Depot hereby certify to the Lenders and the
Agent as follows (capitalized terms used herein having the same meanings as
assigned to such terms in the Credit Agreement):
1. All representations and warranties contained in the Credit Agreement are
true and correct in all material respects on and as of the date hereof.
2. After giving effect to the Extensions of Credit to be made to Office
Depot pursuant to the Credit Agreement on the date hereof, no Default or Event
of Default has occurred and is continuing.
3. Since the date of the audited and interim financial statements of the
Consolidated Companies described in Section 6.3 of the Credit Agreement, there
has been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
4. Except as may be described on Schedule 6.5 of the Credit Agreement, no
action or proceeding has been instituted or is pending before any court or other
governmental authority, or, to the knowledge of Office Depot, threatened (i)
which reasonably could be expected to have a Materially Adverse Effect, or (ii)
seeking to prohibit or restrict one or more Credit Party's ownership or
operation of any portion of its businesses or assets, where such portion or
portions of such businesses or assets, as the case may be, constitute a material
portion of the total businesses or assets of the Consolidated Companies.
5. The Extensions of Credit to be made on the date hereof are being used
solely for the purposes provided in the Credit Agreement, and such Extensions of
Credit and use of proceeds thereof will not contravene, violate or conflict
with, or involve the Administrative Agent, Syndication Agent, Documentation
Agent or any Lender in a violation of, any law, rule, injunction, or regulation,
or determination of any court of law or other governmental authority, applicable
to Office Depot.
111
6. The conditions precedent set forth in Sections 5.1 and 5.2 of the Credit
Agreement have been or will be satisfied (or have been waived pursuant to the
terms of the Credit Agreement) prior to or concurrently with the making of the
Extensions of Credit under the Credit Agreement on the date hereof.
7. The execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a breach or
default under any of their respective Contractual Obligations.
8. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of such Credit Documents. No consent or authorization of, or filing
with, any Person (including, without limitation, any governmental authority) is
required in connection with the execution, delivery or performance by any Credit
Party, or the validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings which have been
made or obtained.
This Certificate executed and delivered on behalf of Office Depot this 20th
day of February, 1998.
/s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
Vice President
2
