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EXHIBIT 10.24
AMENDED AND RESTATED CREDIT AGREEMENT
among
XXXXX ENTERPRISES, INCORPORATED
as Borrower
CERTAIN SUBSIDIARIES OF THE BORROWER
as Guarantors
THE LENDERS NAMED HEREIN
and
BANK OF AMERICA, N.A.
as Agent
Dated as of May 2, 2000
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BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Book Manager
SUNTRUST BANK
as Syndication Agent
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS........................................................................ 25
1.1 DEFINITIONS.......................................................................... 25
1.2 COMPUTATION OF TIME PERIODS.......................................................... 39
1.3 ACCOUNTING TERMS...................................................................... 39
SECTION 2 CREDIT FACILITY..................................................................... 39
2.1 REVOLVING LOANS....................................................................... 39
2.2 LETTER OF CREDIT SUBFACILITY.......................................................... 41
2.3 SWINGLINE LOAN SUBFACILITY............................................................ 44
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES...................................... 46
3.1 DEFAULT RATE.......................................................................... 46
3.2 EXTENSION AND CONVERSION.............................................................. 46
3.3 REDUCTIONS IN COMMITMENTS AND PREPAYMENTS............................................. 46
3.4 REPLACEMENT OF LENDERS................................................................ 47
3.5 FEES.................................................................................. 47
3.6 EUROCURRENCY RESERVE COMPENSATION..................................................... 48
3.7 CAPITAL ADEQUACY...................................................................... 48
3.8 UNAVAILABILITY........................................................................ 49
3.9 ILLEGALITY............................................................................ 49
3.10 REQUIREMENTS OF LAW................................................................... 49
3.11 TAXES................................................................................. 50
3.12 INDEMNITY............................................................................. 52
3.13 PRO RATA TREATMENT.................................................................... 52
3.14 SHARING OF PAYMENTS................................................................... 52
3.15 PAYMENTS, COMPUTATIONS, ETC........................................................... 53
3.16 OBLIGATION OF LENDERS TO MITIGATE..................................................... 55
SECTION 4 GUARANTY............................................................................ 55
4.1 THE GUARANTY.......................................................................... 55
4.2 OBLIGATIONS UNCONDITIONAL............................................................. 55
4.3 REINSTATEMENT......................................................................... 56
4.4 CERTAIN ADDITIONAL WAIVERS............................................................ 57
4.5 REMEDIES.............................................................................. 57
4.6 RIGHTS OF CONTRIBUTION................................................................ 57
4.7 CONTINUING GUARANTY................................................................... 57
SECTION 5 CONDITIONS.......................................................................... 58
5.1 CONDITIONS TO CLOSING................................................................. 58
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT................................................ 59
SECTION 6 REPRESENTATIONS AND WARRANTIES...................................................... 59
6.1 FINANCIAL CONDITION................................................................... 59
6.2 NO CHANGE............................................................................. 59
6.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.............................................. 60
6.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS .............................. 60
6.5 NO LEGAL BAR; NO DEFAULT.............................................................. 60
6.6 NO MATERIAL LITIGATION................................................................ 60
6.7 INVESTMENT COMPANY ACT................................................................ 61
6.8 FEDERAL REGULATIONS................................................................... 61
6.9 ERISA................................................................................. 61
6.10 ENVIRONMENTAL MATTERS................................................................. 62
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6.11 PURPOSE OF EXTENSIONS OF CREDIT....................................................... 63
6.12 CONSOLIDATED GROUP.................................................................... 63
6.13 INTELLECTUAL PROPERTY................................................................. 63
6.14 NO BURDENSOME RESTRICTIONS............................................................ 63
6.15 TAXES................................................................................. 63
SECTION 7 AFFIRMATIVE COVENANTS............................................................... 64
7.1 FINANCIAL STATEMENTS.................................................................. 64
7.2 CERTIFICATES; OTHER INFORMATION....................................................... 64
7.3 NOTICES............................................................................... 65
7.4 PAYMENT OF OBLIGATIONS................................................................ 66
7.5 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE...................................... 66
7.6 MAINTENANCE OF PROPERTY; INSURANCE.................................................... 66
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS................................ 66
7.8 ENVIRONMENTAL LAWS.................................................................... 66
7.9 FINANCIAL COVENANTS................................................................... 67
7.10 AGENCY FEES........................................................................... 67
7.11 ADDITIONAL GUARANTIES AND STOCK PLEDGES............................................... 67
SECTION 8 NEGATIVE COVENANTS.................................................................. 68
8.1 INDEBTEDNESS.......................................................................... 68
8.2 LIENS................................................................................. 69
8.3 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, CAPITAL EXPENDITURES, ETC.......... 70
8.4 INVESTMENTS........................................................................... 71
8.5 TRANSACTIONS WITH AFFILIATES.......................................................... 71
8.6 FISCAL YEAR........................................................................... 71
8.7 RESTRICTED PAYMENTS................................................................... 71
8.8 SALE LEASEBACKS....................................................................... 71
8.9 NO FURTHER NEGATIVE PLEDGES........................................................... 71
SECTION 9 EVENTS OF DEFAULT................................................................... 71
9.1 EVENTS OF DEFAULT..................................................................... 72
9.2 ACCELERATION; REMEDIES................................................................ 73
SECTION 10 AGENCY PROVISIONS.................................................................. 74
10.1 APPOINTMENT........................................................................... 74
10.2 DELEGATION OF DUTIES.................................................................. 74
10.3 EXCULPATORY PROVISIONS................................................................ 74
10.4 RELIANCE ON COMMUNICATIONS............................................................ 75
10.5 NOTICE OF DEFAULT..................................................................... 75
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS............................................... 75
10.7 INDEMNIFICATION....................................................................... 76
10.8 AGENT IN ITS INDIVIDUAL CAPACITY...................................................... 76
10.9 SUCCESSOR AGENT....................................................................... 76
SECTION 11 MISCELLANEOUS...................................................................... 76
11.1 NOTICES............................................................................... 77
11.2 RIGHT OF SET-OFF...................................................................... 77
11.3 BENEFIT OF AGREEMENT.................................................................. 77
11.4 NO WAIVER; REMEDIES CUMULATIVE........................................................ 79
11.5 PAYMENT OF EXPENSES, ETC.............................................................. 79
11.6 AMENDMENTS, WAIVERS AND CONSENTS...................................................... 80
11.7 COUNTERPARTS.......................................................................... 80
11.8 HEADINGS.............................................................................. 81
11.9 SURVIVAL.............................................................................. 81
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11.10 GOVERNING LAW, SUBMISSION TO JURISDICTION; VENUE................................... 81
11.11 ARBITRATION........................................................................ 81
11.12 SEVERABILITY....................................................................... 82
11.13 ENTIRETY........................................................................... 82
11.14 BINDING EFFECT; REPLACEMENT OF EXISTING LOAN AGREEMENT; TERMINATION................ 82
11.15 JUDGMENT CURRENCY.................................................................. 83
11.16 CONFIDENTIALITY.................................................................... 83
11.17 SOURCE OF FUNDS.................................................................... 83
11.18 CONFLICT........................................................................... 84
11.19 WAIVER OF PAST DEFAULTS UNDER SECTION 8.1(E)....................................... 84
11.20 RELEASE OF MCQUEEN INTERNATIONAL LIMITED........................................... 84
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SCHEDULES
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(d) Form of Secretary's Certificate
Schedule 6.6 Material Litigation
Schedule 6.12 Subsidiaries
Schedule 7.2(b) Form of Officer's Compliance Certificate
Schedule 7.11 Form of Guarantor Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.2 Liens
Schedule 8.4 Borrower's Investment Policy
Schedule 11.3(b) Form of Assignment and Acceptance
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 2,
2000 (the "Credit Agreement"), is by and among
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
"Borrower");
CERTAIN SUBSIDIARIES OF THE BORROWER as may from time to time
become a party hereto as Guarantors (the "Guarantors");
THE LENDERS NAMED HEREIN and such other lenders as may from
time to time become a party hereto (the "Lenders");
BANK OF AMERICA, N.A., formerly NationsBank, N.A., as agent
for the Lenders (the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement dated as of February 27, 1998 (as amended by an
Amendment No. 1 to Credit Agreement dated as of March 20, 1998, an Amendment No.
2 to Credit Agreement dated as of September 20, 1998 and an Amendment No. 3 to
Credit Agreement dated as of January 18, 2000, the "Existing Credit Agreement");
WHEREAS, McQueen International Limited and SHPS, Inc. became Guarantors
under, and parties to, the Existing Credit Agreement pursuant to Guarantor
Joinder Agreements dated as of February 27, 1998 and October 1998, respectively;
WHEREAS, the parties hereto desire that the Existing Credit Agreement
be amended and restated as set forth herein;
WHEREAS, the Lenders have agreed to amend and restate the Existing
Credit Agreement and continue to make the revolving credit facility described
therein available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Affected Lender" means such term as defined in Section 3.9.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the equity
interest in such Person. For purposes
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of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Agent Fee Letter" means that certain letter agreement, dated
as of March 23, 2000, between the Borrower and Bank of America.
"Agent Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, being
initially ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).
"Applicable Percentage" means for any day, the rate per annum
set forth below opposite the applicable Consolidated Leverage Ratio
then in effect, it being understood that the Applicable Percentage for
(i) Base Rate Loans shall be the percentage set forth under the column
"Base Rate Margin", (ii) Eurocurrency Loans and the Letter of Credit
Fee shall be the percentage set forth under the column "Eurocurrency
Margin and Letter of Credit Fee" and (iii) the Commitment Fee shall be
the percentage set forth under the column "Commitment Fee".
Pricing Consolidated Base Rate Eurocurrency Commitment
Level Leverage Margin Margin and Letter Fee
Ratio of Credit Fee
------- ----------------- --------- ----------------- -----------
I > 2.5 .25% 1.75% .375%
II > 1.75 but < 2.5 0% 1.50% .30%
-
III > 1.0 but < 1.75 0% 1.25% .25%
-
IV > .50 but < 1.0 0% 1.00% .20%
-
V < .50 0% .75% .15%
-
The Applicable Percentage shall be determined and adjusted quarterly on
the date five (5) Business Days after the date by which the annual and
quarterly compliance certificates and related financial statements and
information are required in accordance with the provisions of Sections
7.1(a) and (b) and Section 7.2(b), as appropriate (each date of a rate
change as described in the sentence hereafter referred to as a "Rate
Determination Date"); provided that (i) the initial Applicable
Percentages shall be based on Pricing Level V and shall be adjusted as
shown above based on the Consolidated Leverage Ratio; and (ii) in the
event an annual or quarterly compliance certificate and the related
financial statements and information are not delivered timely by the
date required by the provisions of Sections 7.1(a) and (b) and Section
7.2(b), as appropriate, the Applicable Percentages shall be based on
Pricing Level I until such time as an appropriate compliance
certificate and the related financial statements and information are
delivered, whereupon the applicable Pricing Level shall be adjusted
based on the information contained in such compliance certificate and
related financial statements and information. The Applicable Percentage
shall be effective from a Rate Determination Date until the next such
Rate Determination Date. The Agent shall determine the appropriate
Applicable Percentages in the pricing matrix that is based on the
Consolidated Leverage Ratio promptly upon receipt of the quarterly or
annual compliance certificate and related financial
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information and shall promptly notify the Borrower and the Lenders of
any change thereof. Such determinations by the Agent shall be
conclusive absent manifest error. Adjustments in the Applicable
Percentages shall be effective as to existing Extensions of Credit as
well as new Extensions of Credit made thereafter.
"Approved Lender" shall have the meaning given to such term in
the definition of "Cash Equivalents" contained in Section 1.1.
"Bank of America" means Bank of America, N.A., formerly
NationsBank, N.A., or any successor thereto.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or any voluntary case seeking the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors (provided, however, that this subclause (iii)
shall exclude any voluntary dissolution permitted by Section 8.3(a));
or (iv) such Person shall be unable to, or shall admit in writing its
inability to, pay its debts generally as they become due; or such
Person shall by any act or failure to act consent to, approve of or act
acquiesce in any of the foregoing or take any corporate action to
effect any of the foregoing.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms hereof, the Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" shall have the meaning given to such term in the
introductory paragraph hereof.
"Business" shall have the meaning given to such term in
Section 6.10(b).
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"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks are authorized or required by law
to close in Charlotte, North Carolina or New York, New York, except
that, when used in connection with a Eurocurrency Loan, a Business Day
shall also be a day on which dealings between banks are carried on in
U.S. dollar deposits in London, England.
"Capital Expenditures" means all expenditures which in
accordance with GAAP would be classified as capital expenditures.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Lease Obligation" means the capital lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having in each case maturities of not more than twelve months from the
date of acquisition, (b) time deposits and certificates of deposit,
eurodollar time deposits and eurodollar certificates of deposit
denominated in Dollars of (i) any Lender, or (ii) any domestic
commercial bank of recognized standing (y) having capital and surplus
in excess of $500,000,000 and (z) whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being
an "Approved Lender"), in each case with maturities of not more than
270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Lender (or by the
parent company thereof) and maturing within six months of the date of
acquisition, (d) repurchase agreements entered into by a Person with a
bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed by the United
States of America in which such Person shall have a perfected first
priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations, (e) obligations of any State
of the United States or any political subdivision thereof, the interest
with respect to which is exempt from federal income taxation under
Section 103 of the Code, having a long term rating of at least AA- or
Aa-3 by S&P or Xxxxx'x, respectively, and maturing within three years
from the date of acquisition thereof, (f) Investments in municipal
auction preferred stock (i) rated AAA (or the equivalent thereof) or
better by S&P or AAA (or the equivalent thereof) or better by Moody's
and (ii) with dividends that reset at least once every 365 days and (g)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $100,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means either (i) a "person" or a "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended, but excluding Xxxx Xxxxx) hereafter
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of more than 30% of the
then outstanding voting stock of the Borrower or (ii) a majority of the
Board of Directors of the Borrower shall consist of individuals who are
not Continuing Directors; "Continuing Director" means, as of any date
of determination, (i) an individual who on the Closing Date was a
member of the Borrower's Board of Directors and (ii) any new director
whose nomination for election by the Borrower's shareholders was
approved by a vote of a majority of the directors then still in office
who were directors on the Closing Date.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
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References to sections of the Code shall be construed also to refer to
any successor sections.
"Commitment" means (i) with respect to each Lender, such
Lender's Revolving Commitment, (ii) with respect to the Swingline
Lender, the Swingline Commitment, and (iii) with respect to the Issuing
Lender, the Letter of Credit Commitment.
"Commitment Fee" means such term as defined in Section 3.5(a).
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Revolving Commitments shall
terminate in accordance with the provisions of this Credit Agreement.
"Consolidated EBITR" means for any applicable period for the
Consolidated Group, the sum of Consolidated Net Income plus
Consolidated Interest Expense plus all provisions for any Federal,
state or other domestic and foreign income taxes plus rent expense plus
non-cash charges (excluding depreciation and amortization), in each
case on a consolidated basis determined in accordance with GAAP applied
on a consistent basis, and in each case the applicable period shall be
for the four consecutive quarters ending as of the date of
determination.
"Consolidated EBITDA" means for any applicable period for the
Consolidated Group, the sum of Consolidated Net Income plus
Consolidated Interest Expense plus all provisions for any Federal,
state or other domestic and foreign income taxes plus depreciation,
amortization and other non-cash charges, in each case on a consolidated
basis determined in each case in accordance with GAAP applied on a
consistent basis, and in each case the applicable period shall be for
the four consecutive quarters ending as of the date of determination.
"Consolidated Fixed Charge Coverage Ratio" means for any
period, the ratio of Consolidated EBITR to Consolidated Fixed Charges.
"Consolidated Fixed Charges" means for any applicable period
for the Consolidated Group, the sum of Consolidated Interest Expense
plus rent expense, in each case on a consolidated basis determined in
accordance with GAAP applied on a consistent basis, and in each case
the applicable period for the foregoing components shall be for the
four consecutive quarters ending as of the date of determination.
"Consolidated Funded Debt" means Funded Debt of the
Consolidated Group, in each case on a consolidated basis determined in
accordance with GAAP applied on a consistent basis.
"Consolidated Group" means the Borrower and its Subsidiaries.
"Consolidated Interest Expense" means for any period for the
Consolidated Group, all interest expense, including the amortization of
debt discount and premium, the interest component under Capital Leases,
in each case on a consolidated basis determined in accordance with GAAP
applied on a consistent basis, and in each case the applicable period
shall be for the four consecutive quarters ending as of the date of
determination.
"Consolidated Leverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt on such day to
Consolidated EBITDA for the period of four consecutive fiscal quarters
ending as of such day.
"Consolidated Net Income" means for any applicable period, the
net income of the Consolidated Group on a consolidated basis determined
in accordance with GAAP applied on a consistent basis, and in each case
the applicable period shall be for the four consecutive quarters ending
as of the date of determination.
"Consolidated Net Worth" means total stockholders' equity of
the Consolidated Group, in each
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case on a consolidated basis as determined in accordance with GAAP
applied on a consistent basis.
"Consolidated Total Capitalization" means the sum of
Consolidated Funded Debt plus Consolidated Net Worth plus the
aggregate amount of all non-cash charges taken in connection with and
as of the date of any acquisition permitted pursuant to Section 8.3(d).
"Continuing Director" shall have the meaning given to such
term in the definition of "Change of Control" contained in Section 1.1.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any material
agreement, instrument or undertaking to which such Person is a party or
by which it or any of its property is bound.
"Convention" shall have the meaning given to such term in
Section 11.11 (b).
"Covered Foreign Subsidiary" means such term as is defined in
Section 7.11.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, the Pledge Agreements, each
Guarantor Joinder Agreement, the Agent's Fee Letter, and all other
related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Credit Party" means the Borrower, any of the Guarantors or
any of the Pledgors.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make an Extension of Credit required
pursuant to the terms of this Credit Agreement, (ii) has failed to pay
to the Agent or any Lender an amount owed by such Lender pursuant to
the terms of the Credit Agreement or any other of the Credit Documents,
or (iii) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"Dollar Equivalent" means, on any date, with respect to an
amount denominated in a currency other than Dollars, the amount of
Dollars into which the Agent could, in accordance with its practice
from time to time in the interbank foreign exchange market, convert
such amount of such currency at its spot rate of exchange (inclusive of
all reasonable related costs of conversion, if any are actually
incurred) applicable to the relevant transaction at or about 10:00
A.M., Charlotte, North Carolina time, on such date.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Credit Party" means any Credit Party which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Domestic Subsidiary" means any Subsidiary which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Eligible Assignee" shall have the meaning given such term in
Section 11.3(b).
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, governmental agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases of pollutants, contaminants, chemicals, or toxic
or hazardous substances or wastes into the environment including,
without limitation, ambient air, surface water, ground water, or land,
or otherwise relating to the manufacture, processing, distribution,
use,
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treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common
control with any member of the Consolidated Group within the meaning of
Section 4001(a)(14) of ERISA, or is a member of a group which includes
any member of the Consolidated Group and which is treated as a single
employer under Sections 414(b) or (c) of the Code.
"Eurocurrency Loan" means any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" means, for any Eurocurrency Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) appearing on Telerate Page
3750 (or any successor page) as London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Eurocurrency Rate" shall mean, for any
Eurocurrency Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"Eurocurrency Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or other applicable authority or any successor
thereof), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities
as that term is defined in Regulation D (or against any other category
of liabilities that includes deposits by reference to which the
interest rate of Eurocurrency Loans is determined), whether or not
Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurocurrency Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurocurrency Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurocurrency Reserve
Percentage.
"Event of Default" means such term as defined in Section 9.1.
"Excess Funding Guarantor" means such term as defined in
Section 4.6.
"Excess Payment" means such term as defined in Section 4.6.
"Existing Credit Agreement" means such term as defined in the
introductory paragraphs hereof.
"Extension of Credit" means (i) as to any Lender, the making
of a Revolving Loan by such Lender or the participation by such Lender
in a Loan or Letter of Credit, (ii) as to the Issuing Lender, the
issuance of a Letter of Credit, and (iii) as to the Swingline Lender,
the making of a Swingline Loan.
"Fees" means all fees payable pursuant to Section 3.5.
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"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Agent on such day
on such transactions as determined by the Agent.
"Foreign Credit Party" means a Credit Party which is not a
Domestic Credit Party.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money,
(ii) all purchase money Indebtedness of such Person, including without
limitation the principal portion of all obligations of such Person
under Capital Leases, (iii) all Guaranty Obligations of such Person
with respect to Funded Debt of another Person, (iv) the maximum
available amount of all standby letters of credit or acceptances issued
or created for the account of such Person, (v) all Funded Debt of
another Person secured by a Lien on any Property of such Person,
whether or not such Funded Debt has been assumed, provided that for
purposes hereof the amount of such Funded Debt shall be limited to the
greater of (A) the amount of such Funded Debt as to which there is
recourse to such Person and (B) the fair market value of the property
which is subject to the Lien, and (vi) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product
to which such Person is a party, where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP. The Funded Debt of any Person
shall include the Funded Debt of any partnership or joint venture in
which such Person is a general partner or joint venturer, but only to
the extent to which there is recourse to such Person for the payment of
such Funded Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Obligations" means all obligations of the Borrower
to the Lenders and the Agent, whenever arising, under this Credit
Agreement, the Notes or the Credit Documents relating to Loans
hereunder, and all liabilities and obligations, whenever arising, owing
from the Borrower to any Lender, or any Affiliate of a Lender, arising
under any Hedging Agreement relating to Loans hereunder.
"Guarantor Joinder Agreement" means the Guarantor Joinder
Agreement for Persons who become Guarantors after the Closing Date as
provided in Section 7.11, a form of which is attached as Schedule 7.11.
"Guarantors" means such Persons as may become Guarantors
hereunder in accordance with the provisions of Section 7.11.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or cash flow of
such other Person (including without limitation keep
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well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement permitted hereunder
between a member of the Consolidated Group and any Lender, or any
Affiliate of a Lender.
"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (iv) all obligations
of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than (x) trade
debt incurred in the ordinary course of business and due within six
months of the incurrence thereof and (y) any obligations incurred under
a pension, retirement or deferred compensation program or arrangement
regulated under ERISA or the laws of a foreign government) which would
appear as liabilities on a balance sheet of such Person, (v) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements (except supply agreements and other
similar arrangements entered into in the ordinary course of business),
(vi) all indebtedness and obligations of others secured by (or for
which the holder of such indebtedness and obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or
acquired by such Person, whether or not the obligations secured thereby
have been assumed, provided that for purposes hereof the amount of such
Indebtedness shall be limited to the greater of (A) the amount of such
Indebtedness as to which there is recourse to such Person and (B) the
fair market value of the property which is subject to the Lien, (vii)
all Guaranty Obligations of such Person, (viii) the principal portion
of all obligations of such Person under Capital Leases, (ix) all
obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or
option agreements or other interest or exchange rate or commodity price
hedging agreements (including, but not limited to, the Hedging
Agreements), (x) the maximum amount of all standby letters of credit
issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (xi) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which
mandatory sinking fund payments are due, by a fixed date, and (xii) the
principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax purposes
but is classified as an operating lease in accordance with GAAP. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner
or a joint venturer, but only to the extent to which there is recourse
to such Person for the payment of such Indebtedness.
"Information" means such term as defined in Section 11.16.
"Intellectual Property" means such term as defined in Section
6.13.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last Business Day of each March, June, September and December, the
date of repayment in full of such principal of such Loan and the
Termination Date and (ii) as to any Eurocurrency Loan or any Swingline
Loan, the last day of each Interest Period for such Loan, the date of
repayment of principal of such Loan and on the Termination Date, and in
addition where the applicable Interest Period is more than 3 months,
then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date
falls on a
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date which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day, except that in the
case of Eurocurrency Loans where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding
Business Day.
"Interest Period" means (a) as to any Eurocurrency Loan, a
period of one, two, three or six month's duration, as the Borrower may
elect, commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals), and (b) as to any Swingline
Loan, a period commencing in each case on the date of the borrowing and
ending on the date agreed to by the Borrower and the Swingline Lender
in accordance with the provisions of Section 2.3(b)(i) (such ending
date in any event to be not more than seven (7) Business Days from the
date of borrowing); provided, however, (i) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except where the next
succeeding Business Day falls in the next succeeding calendar month,
then on the next preceding Business Day), (ii) no Interest Period shall
extend beyond the Termination Date, and (iii) in the case of
Eurocurrency Loans, where an Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on
the last day of such calendar month.
"Investment", in any Person, means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities of, or
equity interest in, such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any Guaranty Obligation incurred for the benefit of such
Person.
"Issuing Lender" means Bank of America.
"Issuing Lender Fees" shall have the meaning assigned to such
term in Section 3.5(b)(ii).
"Judgment Currency" means such term as defined in Section
11.15(a).
"Judgment Currency Conversion Date" means such term as defined
in Section 11.15(a).
"Lenders" shall have the meaning given to such term in the
introductory paragraph hereof.
"Letter of Credit" means any letter of credit, including
without limitation any standby or trade letter of credit, issued by the
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.2.
"Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(b)(i).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or the
Swingline Loans (or any Swingline Loan bearing interest at the Base
Rate or the Quoted Rate and referred to as a Base Rate Loan or a Quoted
Rate Swingline Loan), individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.2.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments
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thereto, any documents delivered in connection therewith, any
application therefor, and any agreements, instruments, guarantees or
other documents (whether general in application or applicable only to
such Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or prospects of the Consolidated Group taken as a
whole, (ii) the ability of the Credit Parties taken as a whole to
perform any material obligation under the Credit Documents to which
they are a party or (iii) the rights and remedies of the Lenders under
the Credit Documents.
"Material Subsidiary" means, as of any date of determination,
(a) a direct or indirect Domestic Subsidiary of the Borrower or (b) a
direct Foreign Subsidiary of a Domestic Credit Party, in each case
that, together with its Subsidiaries on a consolidated basis, during
the most recently ended four fiscal quarter period accounts for (or to
which may be attributed) 15% or more of the Consolidated EBITDA or
assets of the Consolidated Group.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such Borrower in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan other than a
Multiemployer Plan which any member of the Consolidated Group or any
ERISA Affiliate of any member of the Consolidated Group and at least
one employer other than any member of the Consolidated Group or any
ERISA Affiliate of any member of the Consolidated Group are
contributing sponsors.
"Non-Covered Subsidiaries" means such term as is defined in
Section 7.11.
"Non-Excluded Taxes" means such term as is defined in Section
3.11(a).
"Note" or "Notes" means any Revolving Note or Revolving Notes
or the Swingline Note, as the context may require.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i) in the case of Revolving Loans.
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Obligation Currency" means such term as defined in Section
11.15(a).
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
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"Parent" means the Person that owns directly the stock of a
Subsidiary.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in any Letters of Credit
or LOC Obligations as provided in Section 2.2(d), any Swingline Loans
as provided in Section 2.3(b)(iii) or in any Revolving Loans as
provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Liens" means the Liens described in subsections
8.2(a) through (k).
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which a
member of the Consolidated Group or any ERISA Affiliate of a member of
the Consolidated Group is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Pledge Agreements" means (a) those certain pledge agreements
dated as of the Closing Date executed by the Borrower in favor of the
Agent with respect to 66% of the Voting Stock owned by the Borrower in
McQueen International Limited and Oracle Service Networks Corporation
and (b) any additional pledge agreements entered into in accordance
with the provisions of Section 7.11, in each case as amended and
modified, to secure on a pari passu basis the obligations owing under
this Credit Agreement and the Indebtedness permitted by Section 8.1(g).
"Pledgors" means the Persons executing Pledge Agreements
pursuant to Section 7.11.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Pro Rata Share" such term as defined in Section 4.6.
"Properties" means such term as defined in Section 6.10.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline
Lender and accepted by the Borrower with respect to such Swingline Loan
as provided in accordance with the provisions of Section 2.3.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at a Quoted Rate.
"Rate Determination Date" shall have the meaning given to such
term in the definition of "Applicable Percentage" contained in Section
1.1.
"Register" shall have the meaning given such term in Section
11.3(c).
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"Regulation D, G, T, U, or X" means Regulation D, G, T, U or
X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles
containing any Materials of Environmental Concern).
"Replacement Lender" means such term as defined in Section
3.4.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the Commitments (and Participation
Interests therein), or if the Commitments have been terminated, Lenders
having more than fifty percent (50%) of the aggregate principal amount
of the Loans outstanding (taking into account in each case
Participation Interests or obligation to participate therein); provided
that the Commitments of, and outstanding principal amount of Loans
(taking into account Participation Interests therein) owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders.
"Requirement of Law" means, as to any Person, the 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 to
which any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer or
other duly authorized officer.
"Restricted Payment" means, without duplication, (i) any
dividend or other distribution, direct or indirect, on account of any
shares of any class of stock now or hereafter outstanding, except a
dividend payable solely in shares of that class to the holders of that
class, (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect,
of any shares of any class of stock now or hereafter outstanding, and
(iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2.1(a) (as such amount may be reduced from time to
time in accordance with the provisions hereof), (i) to make Revolving
Loans in accordance with the provisions of Section 2.1(a), (ii) to
purchase Participation Interests in Letters of Credit and LOC
Obligations in accordance with the provisions of Section 2.2(d) and
(iii) to purchase Participation Interests in Swingline Loans in
accordance with the provisions of Section 2.3(b)(iii).
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a fraction) the numerator of which is the
Revolving Commitment of such Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule
2.1(a).
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments as referenced in
Section 2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1(a).
"Revolving Loans" means such term as defined in Section 2.1.
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"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans in substantially the form attached as Schedule 2.1(e),
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced
from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair saleable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50%
voting interests at any time.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.3(a).
"Swingline Lender" means Bank of America.
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of
$10,000,000, as such promissory note may be amended, modified, restated
or replaced from time to time.
"Termination Date" means February 28, 2003, or if extended
with the written consent of each of the Lenders, such later date as to
which the Termination Date may be extended.
"Termination Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by a member of the Consolidated Group or any ERISA Affiliate
of a member of the Consolidated Group from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term
is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple
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Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; or (vi) the complete
or partial withdrawal of a member of the Consolidated Group or any
ERISA Affiliate of a member of the Consolidated Group from a
Multiemployer Plan.
"Voting Stock" means, with respect to any Person, capital
stock issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of
such a contingency.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 7.1 hereof, consistent with the financial statements referenced in
Section 6.1); provided, however, if (a) the Borrower shall object to determining
such compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with respect
thereto or (b) the Agent or the Required Lenders shall so object in writing
within 30 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Borrower to the Lenders as to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made in determining compliance for any
applicable period with the financial covenant set forth in Section 7.9(b) and
for purposes of determining the "Applicable Percentage" in Section 1.1, income
statement items attributable to Property acquired in accordance with the terms
hereof (each, a "Permitted Acquisition") shall be included in such calculations
to the extent relating to such applicable period. Any such Permitted Acquisition
shall be deemed to have occurred as of the first day of the four fiscal quarter
period ending as of the most recent fiscal quarter end preceding the date of
such Permitted Acquisition, and (a) any Indebtedness incurred by the Borrower or
any of its Subsidiaries in order to consummate such Permitted Acquisition shall
be deemed to have been incurred on the first day of the applicable four fiscal
quarter period and (b) if such Indebtedness has a floating or formula rate, then
the implied rate of interest for such Indebtedness shall be determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination.
SECTION 2
CREDIT FACILITY
2.1 REVOLVING LOANS.
(a) Revolving Commitment. During the Commitment Period, subject to
the terms and conditions hereof, each Lender severally agrees to make revolving
credit loans in Dollars ("Revolving Loans") to the Borrower from time to time in
the amount of such Lender's Revolving Commitment Percentage of such Revolving
Loans as set forth on Schedule 2.1(a) for the purposes hereinafter set forth;
provided that (i) with regard to each Lender
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individually, the outstanding principal amount of such Lender's Revolving Loans
shall not exceed such Lender's Revolving Committed Amount, and (ii) with regard
to the Lenders collectively, the outstanding principal amount of all Revolving
Loans plus the aggregate principal amount of outstanding LOC Obligations plus
the aggregate principal amount of outstanding Swingline Loans shall not exceed
the Aggregate Revolving Committed Amount. Revolving Loans may consist of Base
Rate Loans or Eurocurrency Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Revolving Loan borrowing by written notice pursuant to a
Notice of Borrowing in the form set forth in Schedule 2.1(b)(i) (or
telephone notice promptly confirmed in writing) to the Agent not later
than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day of
the requested borrowing in the case of Base Rate Loans, and on the
third Business Day prior to the date of the requested borrowing in the
case of Eurocurrency Loans denominated in Dollars. Each such request
for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount to
be borrowed, and (D) whether the borrowing shall be comprised of Base
Rate Loans, Eurocurrency Loans or a combination thereof, and if
Eurocurrency Loans are requested, the Interest Period(s) therefor. If
the Borrower shall fail to specify in any such Notice of Borrowing (i)
an applicable Interest Period in the case of a Eurocurrency Loan, then
such notice shall be deemed to be a request for an Interest Period of
one month, or (ii) the type of Revolving Loan requested, then such
notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each affected Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.1(b)(i),
the contents thereof and each such Lender's share of any borrowing to
be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall
be in a minimum aggregate principal amount of $2,500,000 (or in the
case of Base Rate Loans, the remaining Revolving Committed Amount, if
less), and integral multiples of $500,000 in excess thereof.
(iii) Advances. Each Lender will make its
Revolving Commitment Percentage of each Revolving Loan borrowing
available to the Agent for the account of the Borrower in the account
specified in Section 3.15(b), or in such other account in the United
States as the Agent may specify in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the Agent.
Such borrowing will then be made available to the Borrower by the Agent
by crediting the account of the Borrower on the books of such office
with the aggregate of the amounts made available to the Agent by the
Lenders and in like funds as received by the Agent together with any
amounts advanced by the Agent under Section 3.13(b).
(c) Repayment. The principal amount of all Revolving Loans shall
be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum rate
equal to the sum of the Base Rate plus the Applicable Percentage;
(ii) Eurocurrency Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of Eurocurrency
Loans, such Eurocurrency Loans shall bear interest at a per annum rate
equal to the sum of the Eurocurrency Rate plus the Applicable
Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a
duly executed Revolving Note in
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favor of each Lender.
(f) Maximum Number of Loans. The Borrower will be limited to the
maximum aggregate number of 10 separate Loans outstanding at any time under
Section 2.1. For purposes hereof, as to Revolving Loans which are Base Rate
Loans, all such Revolving Loans will be considered to be a single Loan and as to
other types of Loans, each type of Loan will be considered to be a separate Loan
and Loans with different Interest Periods will be considered to be separate
Loans.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions
which the Issuing Lender may reasonably require, the Lenders will
participate in the issuance by the Issuing Lender from time to time of
such Letters of Credit in Dollars from the Closing Date until the
Termination Date as the Borrower may request, in a form acceptable to
the Issuing Lender; provided, however, that (i) the LOC Obligations
outstanding shall not at any time exceed FIFTEEN MILLION DOLLARS
($15,000,000) (the "LOC Committed Amount") and (ii) the outstanding
principal amount of all Revolving Loans plus the aggregate principal
amount of outstanding LOC Obligations plus the aggregate principal
amount of outstanding Swingline Loans shall not exceed the Aggregate
Revolving Committed Amount. No Letter of Credit shall as originally
issued or as extended, have an expiry date extending beyond the
Termination Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry date of each Letter of Credit
shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted by the Borrower to the Issuing
Lender at least three (3) Business Days prior to the requested date of
issuance. The Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to each of the Lenders a detailed
report specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may have
occurred since the date of the prior report, and including therein,
among other things, the beneficiary, the face amount, expiry date as
well as any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Letter
of Credit, shall be deemed to have purchased without recourse a risk
participation from the applicable Issuing Lender in such Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such Letter
of Credit (based on the respective Revolving Commitment Percentages of
the Lenders) and shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated to pay
to the Issuing Lender therefor and discharge when due, its pro rata
share of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender its pro rata share of
such unreimbursed drawing in same day funds on the day of notification
by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each Lender to
so reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender that
the Borrower intends to otherwise reimburse the Issuing Lender for such
drawing, the Borrower shall be deemed to have requested that the
Lenders make a Loan in the amount of the drawing as provided in
subsection (e) hereof on the related Letter of Credit, the proceeds of
which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds of a Loan
obtained hereunder or otherwise) in same day funds. If the Borrower
shall fail to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum
rate equal to the Base Rate plus two percent (2%). The Borrower's
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reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have
against the Issuing Lender, the Agent, the Lenders, the beneficiary of
the Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower or any
other Credit Party to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing
Lender will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Agent
for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such notice
is received by such Lender from the Issuing Lender if such notice is
received at or before 2:00 P.M. (Charlotte, North Carolina time)
otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding
the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of
such drawing until such Lender pays such amount to the Issuing Lender
in full at a rate per annum equal to, if paid within two (2) Business
Days of the date that such Lender is required to make payments of such
amount pursuant to the preceding sentence, the Federal Funds Rate and
thereafter at a rate equal to the Base Rate. Each Lender's obligation
to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default
or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a
Lender to the Issuing Lender, such Lender shall, automatically and
without any further action on the part of the Issuing Lender or such
Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the related unreimbursed drawing portion of the
LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect
thereto.
(e) Repayment with Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a Loan
advance to reimburse a drawing under a Letter of Credit, the Agent
shall give notice to the Lenders that a Loan has been requested or
deemed requested by the Borrower to be made in connection with a
drawing under a Letter of Credit, in which case a Loan advance
comprised of Base Rate Loans (or Eurodollar Loans to the extent the
Borrower has complied with the procedures of Section 2.1(b)(i) with
respect thereto) shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments pursuant to
Section 9.2) pro rata based on the respective Revolving Commitment
Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such Loan
immediately upon any such request or deemed request in the amount, in
the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with
the minimum amount for advances of Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for Loan to be made
by the time otherwise required hereunder, (v) whether the date of (vi)
any termination of the Commitments relating thereto immediately prior
to or contemporaneously with such borrowing. In the event that any Loan
cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower or
any Credit Party), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on
or after such date and prior to such purchase) from the Issuing Lender
such participation in the outstanding LOC Obligations as shall be
necessary to cause each such Lender to share in such LOC Obligations
ratably (based upon the respective Revolving Commitment Percentages of
the Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2)), provided that at the time any
purchase of participation pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay to the Issuing Lender,
to the extent not paid to the Issuer by the Borrower in accordance with
the terms of subsection (d) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon
which such
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borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if paid within
two (2) Business Days of the date of the Loan advance, the Federal
Funds Rate, and thereafter at a rate equal to the Base Rate.
(f) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a) hereof, a Letter
of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the
Borrower, provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender
shall have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (the "UCP"), in which case the
UCP may be incorporated therein and deemed in all respects to be a part
thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.2, the Borrower hereby agrees to protect, indemnify, pay and
save each Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that such
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B)
the failure of the Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Lenders
(including the Issuing Lender), the Borrower shall assume all
risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. No Lender (including the Issuing
Lender) shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for 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; (D) for any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from
causes beyond the control of such Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of a Lender's
(including the Issuing Lender's) rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by any Lender (including the
Issuing Lender), under or in connection with any Letter of
Credit or the related certificates, if taken or omitted
without gross negligence or bad faith, shall not put such
Lender under any resulting liability to the Borrower or any
other Credit Party. It is the intention of the parties that
this Credit Agreement shall be construed and applied to
protect and indemnify each Lender (including the Issuing
Lender), against any and all risks involved in the issuance of
the Letters of Credit, all of which risks are hereby assumed
by the Borrower (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all
Government Acts. No Lender (including the Issuing Lender)
shall, in any way, be liable for any failure by such Lender or
anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the
control of such Lender.
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(iv) Nothing in this subsection (i) is intended
to limit the reimbursement obligations of the Borrower
contained in subsection (d) above. The obligations of the
Borrower under this subsection (i) shall survive the
termination of this Credit Agreement. No act or omissions of
any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Lenders
(including the Issuing Lender) to enforce any right, power or
benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (i), the Borrower shall have no
obligation to indemnify any Lender (including the Issuing
Lender) in respect of any liability incurred by such Lender
(A) arising out of the gross negligence or willful misconduct
of such Lender, as determined by a court of competent
jurisdiction, or (B) caused by the Issuing Lender's failure to
pay under any Letter of Credit after presentation to it of a
request strictly complying with the terms and conditions of
such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in this
Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section
2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(k) Conflict with LOC Documents. In the event of any
conflict between this Credit Agreement and any LOC Document (including
any letter of credit application), this Credit Agreement shall control.
2.3 SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties herein set forth, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans requested by
the Borrower in Dollars to the Borrower (each a "Swingline Loan" and,
collectively, the "Swingline Loans") from time to time from the Closing
Date until the Termination Date for the purposes hereinafter set forth;
provided, however, (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed TEN MILLION DOLLARS
($10,000,000.00) (the "Swingline Committed Amount"), and (ii) the
aggregate principal amount of outstanding Revolving Loans plus the
aggregate principal amount of outstanding LOC Obligations plus the
aggregate principal amount of outstanding Swingline Loans shall not
exceed the Revolving Committed Amount. Swingline Loans hereunder shall
be made as Base Rate Loans or Quoted Rate Swingline Loans as the
Borrower may request in accordance with the provisions of this Section
2.3, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower
desires a Swingline Loan advance hereunder it shall give
written notice (or telephone notice promptly confirmed in
writing) to the Swingline Lender not later than 2:00 P.M.
(Charlotte, North Carolina time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be
irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline
Loan advance (which shall be a Business Day) and (C) the
principal amount of the Swingline Loan advance requested. Each
Swingline Loan shall be made as a Base Rate Loan or a Quoted
Rate Swingline Loan and shall have such maturity date as the
Swingline Lender and the Borrower shall agree upon receipt by
the Swingline Lender of any such notice from the Borrower. The
Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by
3:30 P.M. (Charlotte,
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North Carolina time) on the Business Day of the requested
borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance
shall be in a minimum principal amount of $100,000 and in
integral multiples of $50,000 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal
amount of all Swingline Loans shall be due and payable on the
earlier of (A) the maturity date agreed to by the Swingline
Lender and the Borrower with respect to such Loan (which
maturity date shall not be a date more than seven (7) Business
Days from the date of advance thereof) or (B) the Termination
Date. The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Lenders,
demand repayment of its Swingline Loans by way of a Revolving
Loan advance, in which case the Borrower shall be deemed to
have requested a Revolving Loan advance comprised solely of
Base Rate Loans in the amount of such Swingline Loans;
provided, however, that any such demand shall be deemed to
have been given one Business Day prior to the Termination Date
and on the date of the occurrence of any Event of Default
described in Section 9.1 and upon acceleration of the
indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Lender
hereby irrevocably agrees to make its pro rata share of each
such Revolving Loan in the amount, in the manner and on the
date specified in the preceding sentence notwithstanding (I)
the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section
5.2 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such request or
deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each
Lender hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Swingline
Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in
such Swingline Loans ratably based upon its Revolving
Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 3.3),
provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the
date as of which the respective participation is purchased and
(B) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing Lender shall be
required to pay to the Swingline Lender, to the extent not
paid to the Swingline Lender by the Borrower in accordance
with the terms of subsection (c)(ii) hereof, interest on the
principal amount of participation purchased for each day from
and including the day upon which such
borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the rate equal to
the Federal Funds Rate.
(c) Interest on Swingline Loans.
(i) Subject to the provisions of Section 3.1,
each Swingline Loan shall bear interest as follows:
(A) Base Rate Loans. If such Swingline
Loan is a Base Rate Loan, at a per annum rate
(computed on the basis of the actual number of days
elapsed over a year of 365 days) equal to the Base
Rate plus the Applicable Percentage.
(B) Quoted Rate Swingline Loans. If
such Swingline Loan is a Quoted Rate Swingline Loan,
at a per annum rate (computed on the basis of the
actual number of days elapsed over a year of 360
days) equal to the Quoted Rate applicable thereto.
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Notwithstanding any other provision to the contrary set forth
in this Credit Agreement, in the event that the principal
amount of any Quoted Rate Swingline Loan is not repaid on the
last day of the Interest Period for such Loan, then such Loan
shall be automatically converted into a Base Rate Loan at the
end of such Interest Period.
(ii) Payment of Interest. Interest on Swingline
Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified
herein).
(d) Swingline Note. The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower to the
Swingline Lender in an original principal amount equal to the Swingline
Committed Amount substantially in the form of Schedule 2.3(d).
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable, whether
in respect of interest, fees or other amounts, then 2% greater than the Base
Rate).
3.2 EXTENSION AND CONVERSION.
Subject to the terms of Section 5.2, the Borrower shall have the
option, on any Business Day, to extend existing Loans into a subsequent
permissible Interest Period or to convert Loans into Loans of another interest
rate type; provided, however, that (i) except as provided in Section 3.9,
Eurocurrency Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurocurrency Loans may be extended,
and Base Rate Loans may be converted into Eurocurrency Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion and
the conditions set forth in subsections (a), (b) and (c) of Section 5.2 have
been satisfied, (iii) Loans extended as, or converted into, Eurocurrency Loans
shall be subject to the terms of the definition of "Interest Period" set forth
in Section 1.1 and shall be in such minimum amounts as provided in Section
2.1(b)(ii), (iv) any request for extension or conversion of a Eurocurrency Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month and (v) Swingline Loans may not be extended
or converted pursuant to this Section 3.2. Each such extension or conversion
shall be effected by the Borrower by giving a Notice of Extension/Conversion in
the form of Schedule 3.2 (or telephone notice promptly confirmed in writing) to
the Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business
Day of, in the case of the conversion of a Eurocurrency Loan into a Base Rate
Loan, and on the third Business Day prior to, in the case of the extension of a
Eurocurrency Loan as, or conversion of a Base Rate Loan into, a Eurocurrency
Loan, the date of the proposed extension or conversion, specifying the date of
the proposed extension or conversion, the Loans to be so extended or converted,
the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
subsections (a), (b) and (c) of Section 5.2. In the event the Borrower fails to
request extension or conversion of any Eurocurrency Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then such Eurocurrency Loan shall be automatically converted into
a Base Rate Loan at the end of the Interest Period applicable thereto. The Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
3.3 REDUCTIONS IN COMMITMENTS AND PREPAYMENTS.
(a) Voluntary Reduction in Revolving Commitment. The Borrower may
from time to time
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permanently reduce the aggregate amount of the Revolving Commitments in whole or
in part without premium or penalty upon three (3) Business Days' prior written
notice to the Agent; provided that after giving effect to any such voluntary
reduction the outstanding principal balance of the Revolving Loans plus the
aggregate principal amount of outstanding LOC Obligations plus the aggregate
principal amount of outstanding Swingline Loans shall not exceed the Aggregate
Revolving Committed Amount, as reduced hereunder. Partial reductions in the
aggregate Revolving Commitment shall in each case be in a minimum aggregate
amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(b) Mandatory Prepayment on Revolving Loans. If at any time the
outstanding principal balance of the Revolving Loans plus the aggregate
principal amount of outstanding LOC Obligations plus the aggregate principal
amount of outstanding Swingline Loans shall exceed the Aggregate Revolving
Committed Amount, as reduced from time to time hereunder, the Borrower shall
immediately make payment on the Loans in an amount sufficient to eliminate the
deficiency. Any such mandatory prepayments shall be applied first to Base Rate
Loans and then to Eurocurrency Loans in direct order of their Interest Period
maturities.
(c) Voluntary Prepayments. Loans may be prepaid in whole or in
part without premium or penalty; provided that (i) Eurocurrency Loans may not be
prepaid other than at the end of the Interest Period applicable thereto and only
then on three (3) Business Days' prior written notice to the Agent, (ii) any
prepayment of Eurocurrency Loans or Quoted Rate Swingline Loans will be subject
to Section 3.12, and (iii) each such partial prepayment shall be (A) in the case
of Revolving Loans, in a minimum aggregate principal amount of $2,500,000 and
integral multiples of $500,000 in excess thereof and (B) in the case of
Swingline Loans, in a minimum principal amount of $100,000 and multiples of
$50,000 in excess thereof (or, if less, the full remaining amount of the then
outstanding Swingline Loans). Voluntary prepayments on the Revolving Loans may
be reborrowed in accordance with the provisions hereof. Any such voluntary
prepayments shall be applied first to Base Rate Loans and then to Eurocurrency
Loans in direct order of their Interest Period maturities.
(d) Notice. Except as otherwise provided herein, the Borrower will
provide notice to the Agent of any prepayment by 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day prior to the Business Day of prepayment.
3.4 REPLACEMENT OF LENDERS.
If any Lender either (i) becomes a Defaulting Lender or (ii) delivers a
notice to the Borrower pursuant to Sections 3.6, 3.7 or 3.10, the Borrower shall
have the right, if no Default or Event of Default then exists, to replace such
Lender (the "Replaced Lender") with one or more Eligible Assignees
(collectively, the "Replacement Lender"), provided that (A) at the time of any
replacement pursuant to this Section 3.4, the Replacement Lender shall enter
into one or more assignment agreements substantially in the form of Schedule
11.3(b) pursuant to, and in accordance with the terms of, Section 11.3(b) (and
with all fees payable pursuant to said Section 11.3(b) to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all
of the rights and obligations of the Replaced Lender hereunder and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an
amount equal to the sum of (x) the principal of, and all accrued interest on,
all outstanding Loans of the Replaced Lender, and (y) all accrued but
theretofore unpaid, fees and other amounts owing to the Replaced Lender pursuant
to Section 3.5 and (B) all obligations of the Borrower owing to the Replaced
Lender (including all obligations, if any, owing pursuant to Section 3.6, 3.7 or
3.10, but excluding those obligations specifically described in clause (A) above
in respect of which the assignment purchase price has been, or is concurrently
being paid) shall be paid in full by the Borrower to such Replaced Lender
concurrently with such replacement.
3.5 FEES.
(a) Commitment Fee. In consideration of the Revolving Commitments
hereunder, the Borrower agrees to pay to the Agent for the ratable benefit of
the Lenders a commitment fee (the "Commitment Fee") equal to the Applicable
Percentage per annum on the average daily unused amount of the aggregate
Revolving Committed Amount for the applicable period (it being understood and
agreed that Swingline Loans shall not count as usage for such calculation). The
Commitment Fee shall accrue from the Closing Date and shall be payable quarterly
in arrears on the 15th day following the last day of each calendar quarter for
the immediately preceding quarter (or portion
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thereof) beginning with the first such date to occur after the Closing Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the
issuance of Letters of Credit hereunder, the Borrower promises to pay
to the Agent for the account of each Lender a fee (the "Letter of
Credit Fee") on such Lender's Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such
Letter of Credit computed at a per annum rate for each day from the
date of issuance to the date of expiration equal to the Applicable
Percentage. The Letter of Credit Fee will be payable quarterly in
arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion thereof).
(ii) Issuing Lender Fees. In addition to the Letter of
Credit Fee payable pursuant to clause (i) above, the Borrower promises
to pay to the Issuing Lender for its own account without sharing by the
other Lenders (A) a letter of credit fronting fee of 0.125% per annum
on the average daily maximum amount available to be drawn under each
Letter of Credit computed at the per annum rate for each day from the
date of issuance to the date of expiration (which fronting fee shall be
payable quarterly in arrears on the last Business Day of each March,
June, September and December for the immediately preceding quarter (or
a portion thereof)) and (B) the customary charges from time to time of
the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the "Issuing Lender Fees").
(c) Administrative Fees. The Borrower agrees to pay to the Agent,
for its own account, the annual administrative fee and other fees (collectively,
the "Agent Fees") as referred to in the Agent Fee Letter.
3.6 EUROCURRENCY RESERVE COMPENSATION.
For so long as any Lender maintains reserves against "Eurocurrency
liabilities" (or any other category of liabilities which includes deposits by
reference to which the interest rate on any Eurocurrency Loans is determined) in
accordance with any Requirement of Law and, as a result, the cost to such Lender
of making or maintaining any of its Eurocurrency Loans is increased, then such
Lender may require the Borrower to pay, contemporaneously with each payment of
interest on such Eurocurrency Loans of such Lender, additional interest at a
rate per annum up to but not exceeding the excess of (i) (A) the applicable
Eurocurrency Rate divided by (B) one minus the Eurocurrency Reserve Percentage
over (ii) the applicable Eurocurrency Rate. Any Lender wishing to require
payment of such additional interest (x) shall so notify the Borrower and the
Agent, in which case such additional interest on the Eurocurrency Loans of such
Lender shall be payable to such Lender at the place indicated in such notice
with respect to each Interest Period commencing at least three (3) Business Days
after the giving of such notice and (y) shall furnish to the Borrower at least
five (5) Business Days prior to each date on which interest is payable on the
Eurocurrency Loans a certificate setting forth the amount to which such Lender
is then entitled under this Section 3.6 (which shall be consistent with such
Lender's good faith estimate of the level at which the related reserves are
maintained by it). Each such certificate shall be accompanied by such
information as the Borrower may reasonably request as to the computation set
forth therein.
3.7 CAPITAL ADEQUACY.
If any Lender has determined, that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, in each case
after the date hereof, or compliance by such Lender or any controlling
corporation of such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets (or that of any controlling
corporation of such Lender) as a consequence of its commitments or obligations
hereunder to a level below that which such Lender or any controlling corporation
of such lender could have achieved but for such adoption, effectiveness, change
or compliance (taking into consideration such Lender's policies (or those of any
controlling corporation of such Lender) with respect to capital
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adequacy), then, upon five Business Days' notice from such Lender to the
Borrower, accompanied by a certificate from such Lender setting forth the
additional amount or amounts to be paid to it hereunder, the Borrower shall be
obligated to pay to such Lender such additional amount or amounts as will
compensate such Lender or any such controlling corporation of such Lender for
such reduction. Each determination by any such Lender of amounts owing under
this Section shall, absent manifest error, be conclusive and binding on the
parties hereto.
3.8 UNAVAILABILITY.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a Eurocurrency Loan of
any amount, Interest Period or currency, the Agent shall have determined or
shall have been notified by the Required Lenders (a) that deposits in the
relevant amount in the relevant currency and for the relevant Interest Period
are not available in the relevant market to any Lender, or that reasonable means
do not exist for ascertaining the Eurocurrency Rate for any such Loan, or (b)
that the rates at which such deposits are being offered will not adequately and
fairly reflect the cost to any Lender of making or maintaining its Eurocurrency
Loan during such Interest Period, the Agent shall promptly give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurocurrency Loan of the affected
amount, Interest Period or currency, or a conversion to or continuation of a
Eurocurrency Loan of the affected amount, Interest Period or currency, shall be
deemed rescinded. Each determination by the Agent hereunder shall be conclusive
absent manifest error.
3.9 ILLEGALITY.
(a) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan, then such Lenders, together with
Lenders giving notice under Section 3.8 and 3.10, shall be an "Affected Lender"
and by written notice to the Borrower and to the Agent:
(i) such Lender may declare that Eurocurrency Loans will
not thereafter (for the duration of such unlawfulness or
impracticability) be made by such Lender hereunder, whereupon any
request for a Eurocurrency Loan shall, as to such Lender only, be
deemed a request for a Base Rate Loan, unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding
Eurocurrency Loans made by it be converted to Base Rate Loans, in which
event all such Eurocurrency Loans shall be automatically converted to
Base Rate Loans as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the Base Rate Loans made by such Lender in lieu of, or resulting from the
conversion, of such Eurocurrency Loans.
(b) For purposes of this Section 3.9, a notice to the Borrower by
any Lender shall be effective as to each such Loan, if lawful, on the last day
of the Interest Period currently applicable to such Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower.
3.10 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any additional tax of
any kind whatsoever with respect to any Letter of Credit, any
Eurocurrency Loans made by it or its obligation to make Eurocurrency
Loans, or
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change the basis of taxation of payments to such Lender in respect
thereof (except for (i) Non-Excluded Taxes covered by Section 3.11
(including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations under Section 3.11(b))
and (ii) changes in taxes measured by or imposed upon the overall net
income, or franchise tax (imposed in lieu of such net income tax), of
such Lender or its applicable lending office, branch, or any affiliate
thereof));
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate
hereunder or any additional interest payable under Section 3.6; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Agent, in accordance herewith, the Borrower shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable,
provided that, in any such case, the Borrower may elect to convert the
Eurocurrency Loans made by such Lender hereunder to Base Rate Loans by giving
the Agent at least one Business Day's notice of such election, in which case the
Borrower shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.12. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the Borrower, through the Agent,
certifying (x) that one of the events described in this Section 3.10 has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.11 TAXES.
(a) Except as provided below in this subsection, all payments made
by the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding: (i) taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any branch or
affiliate thereof, and (ii) all franchise taxes, branch taxes, taxes on doing
business or taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes, imposed (A) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or affiliate is
organized or is located, or in which its principal executive office is located,
or any nation within which such jurisdiction is located or any political
subdivision thereof, or (B) by reason of any connection between the jurisdiction
imposing such tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender having
executed, delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Agent or any Lender hereunder or under any Notes, (1) the amounts so payable
to the Agent or such Lender shall be increased to the extent necessary to yield
to the Agent or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however, that the
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes imposed
by the United States federal government and shall not be required to increase
any such amounts payable to any Lender that is not
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organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection whenever any such Non-Excluded Taxes are payable by the Borrower, and
(2) as promptly as possible thereafter the Borrower shall send to the Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by the Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by
the Borrower under this Credit Agreement or Notes to such Lender,
deliver to the Borrower and the Agent (A) two (2) duly completed
copies of United States Internal Revenue Service Form 1001 or 4224,
or successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Credit Agreement and any
Notes without deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two
(2) further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Borrower or the Agent; or
(Y) Each Lender or transferee that is not a "bank" under
Section 881(c)(3)(A) of the Internal Revenue Code thereof shall:
(i) on or before the date it becomes a party to
this Credit Agreement (or, in the case of a participant, on or before
the date such participant becomes a participant hereunder), deliver to
the Borrower and the Agent (A) a statement under penalties of perjury
that such Lender or transferee (x) is not a "bank" under Section
881(c)(3)(A) of the Internal Revenue Code, is not subject to regulatory
or other legal requirements as a bank in any jurisdiction, and has not
been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements, (y) is not a
10-percent shareholder within the meaning of Section 811(c)(3)(B) of
the Internal Revenue Code and (z) is not a controlled foreign
corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Internal Revenue Code and (B) a properly
completed and duly executed Internal Revenue Service Form W-8 or
applicable successor form;
(ii) deliver to the Borrower and the Agent two
further properly completed and duly executed copies of such Form W-8 if
the prior form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form previously
delivered by it to the Borrower or upon the request of the Borrower;
and
(iii) obtain such extensions of time for filing
and completing such forms or certifications as may be reasonably
requested by the Borrower or the Agent;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly
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completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Agent. Each Person that shall become a Lender or a
participant of a Lender pursuant to subsection 11.3 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection, provided
that in the case of a participant of a Lender the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as
if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to
the Lender from which the related participation shall have been purchased.
3.12 INDEMNITY.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) the failure by the Borrower in making a borrowing of,
conversion into or continuation of Eurocurrency Loans or Quoted Rate Swingline
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Credit Agreement, (b) the failure by the Borrower in
making any prepayment of a Eurocurrency Loan or a Quoted Rate Swingline Loan
after the Borrower has given a notice thereof in accordance with the provisions
of this Credit Agreement or (c) the making of a prepayment of Eurocurrency Loans
or Quoted Rate Swingline Loans on a day which is not the last day of an Interest
Period with respect thereto. Any payment required by this Section 3.12 by the
Borrower to any Lender shall be made immediately upon the demand of such Lender.
With respect to Eurocurrency Loans, such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurocurrency Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurocurrency market. The
covenants of the Borrower set forth in this Section 3.12 shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.13 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Extension of Credit and payments of
principal, interest and fees (including the Commitment Fee and the
Letter of Credit Fee) on or in respect thereof and each reduction in
Commitments, relating thereto, and each conversion or extension of such
Loans and obligations shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Revolving Loans and Participation Interests.
(b) Advances. Unless the Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its ratable share of such
borrowing available to the Agent, the Agent may assume that such Lender
is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Agent
by such Lender within the time period specified therefor hereunder,
such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the Federal Funds Rate for the
period until such Lender makes such amount immediately available to the
Agent. A certificate of the Agent submitted to any Lender with respect
to any amounts owing under this subsection shall be conclusive in the
absence of manifest error.
3.14 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligation or any other
obligation owing to such Lender under this Credit Agreement through the
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exercise of a right of setoff, banker's lien or counterclaim, or pursuant to a
secured claim under Section 506 of the Bankruptcy Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligations or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 PAYMENTS, COMPUTATIONS, ETC.
(a) Currency of Payments. Each payment on account of an amount due
from any Credit Party hereunder or under any other Credit Document shall be made
by such Credit Party to the Agent for the pro rata account of the Lenders
entitled to receive such payment as provided herein in the currency in which
such amount is denominated and in such funds as are customary at the place and
time of payment for the settlement of international payments in such currency.
Upon request, the Agent will give the Credit Parties a statement showing the
computation used in calculating such amount, which statement shall be conclusive
in the absence of manifest error. The obligation of each Credit Party to make
each payment on account of such amount in the currency in which such amount is
denominated shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency, except to the extent such tender or recovery shall result in the
actual receipt by the Agent of the full amount in the appropriate currency
payable hereunder. Each Credit Party agrees that its obligation to make each
payment on account of such amount in the currency in which such amount is
denominated shall be enforceable as an additional or alternative claim for
recovery in such currency of the amount (if any) by which such actual receipt
shall fall short of the full amount of such currency payable hereunder, and
shall not be affected by judgment being obtained for such amount.
(b) Place and Manner of Payments. Except as otherwise specifically
provided herein, all payments hereunder shall be made to the Agent in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, prior to 10:00 A.M., local time in the place where such
payment is required to be made pursuant to this subsection (b), on the date due
at:
Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Administrative Services
ABA Routing No.: 000000000
Account No: 1366212250600
Reference: Xxxxx Enterprises, Incorporated
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or at such other place as may be designated by the Agent to the Borrower in
writing. Any payments received after such time shall be deemed received on the
next succeeding Business Day. The Agent may, but shall not be obligated to,
charge any account of the Borrower at the Agent for the payment when due of all
amounts payable by the Borrower hereunder. The Borrower shall, at the time the
Borrower makes any payment under this Credit Agreement, specify to the Agent the
Loans, LOC Obligations, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
so to specify, or if such application would be inconsistent with the terms
hereof, the Agent shall distribute such payment to the Lenders in such manner as
the Agent may determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Section 3.13(a)). The Agent shall
promptly remit in same day funds to each Lender such Lender's share, if any, of
payments received by the Agent for the account of such Lender. Whenever any
payment hereunder 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
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurocurrency Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day. Except as expressly provided
otherwise herein, all computations of interest and fees shall be made on the
basis of actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Base Rate Loans which (unless the Base
Rate is determined by reference to the Federal Funds Rate) shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall accrue from
and include the date of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Credit Agreement to the contrary after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of the Loans, LOC
Obligations or any other amounts outstanding under any of the Credit Documents
or in respect of any collateral (if any) shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent in connection with enforcing the rights of the Lenders
under the Credit Documents and any protective advances made by the
Agent with respect to the collateral (if any) under or pursuant to the
terms of the Pledge Agreements;
SECOND, to the payment of all reasonable out-of-pocket costs
and expenses, (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the Revolving
Loans or other obligations hereunder owing to such Lender;
THIRD, to payment of any fees owed to the Agent;
FOURTH, to the payment of all accrued interest and fees in
respect of the Loans and other obligations hereunder;
FIFTH, to the payment of the outstanding principal amount of
the Loans and other obligations hereunder (including the payment or
cash collateralization of the outstanding LOC Obligations);
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses "SECOND", "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent
that any amounts available
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for distribution pursuant to clause "FIFTH" above are attributable to the issued
but undrawn amount of outstanding Letters of Credit, such amounts shall be held
by the Agent in a cash collateral account and applied (A) first, to reimburse
the Issuing Lender from time to time for any drawings under such Letters of
Credit and (B) then, following the expiration of all Letters of Credit, to all
other obligations of the types described in clauses "FIFTH" and "SIXTH" above in
the manner provided in this Section 3.15(c).
3.16 OBLIGATION OF LENDERS TO MITIGATE.
Each Lender agrees that, as promptly as practicable after the officer
of such Lender responsible for administering the Loans of such Lender, as the
case may be, becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender to receive payments under Sections 3.7, 3.8, 3.9, 3.10
or 3.11, it will, to the extent not inconsistent with the internal policies of
such Lender and any applicable legal or regulatory restrictions, use reasonable
efforts (i) to make, issue, fund or maintain the Commitments of such Lender or
the affected Loans of such Lender through another lending office of such Lender,
or (ii) take such other measures as such Lender may deem reasonable, if as a
result thereof the circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender pursuant to Sections 3.7, 3.8, 3.9, 3.10 or
3.11 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans through such other lending office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or would not be otherwise disadvantageous to the
interests of such Lender; provided that such Lender will not be obligated to
utilize such other lending office pursuant to this Section 3.16 unless the
Borrower agrees to pay all incremental expenses incurred by such Lender as a
result of utilizing such other lending as described in clause (i) above. A
certificate as to the amount of any such expenses payable by Borrower pursuant
to this Section 3.16 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender to the Borrower (with a copy to
Agent) shall be conclusive absent manifest error.
SECTION 4
GUARANTY
4.1 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender and to each Affiliate of a Lender that enters into a Hedging Agreement
and to the Agent as hereinafter provided, the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code or other applicable laws).
4.2 OBLIGATIONS UNCONDITIONAL.
The respective obligations of the Guarantors under Section 4.1 hereof
are absolute and unconditional,
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irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or Hedging Agreements, or any other agreement or
instrument referred to therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.2 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. The Borrower and Lender
agrees that each Guarantor shall, to the extent of any payments made by such
Guarantor under this Section 4, be subrogated to the rights, claims and
interests of the Lenders so paid, provided, however that no Guarantor shall
recover on any such right, claim or interest arising through subrogation or any
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor of the Guaranteed Obligations for amounts paid under this Section 4
until such time as the Lenders (and any Affiliates of Lenders entering into
Hedging Agreements) have been paid in full, all Commitments under the Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined
to be void or voidable (including, without limitation, for the benefit
of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of
any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
4.3 REINSTATEMENT.
The respective obligations of each of the Guarantors under this Section
4 shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Guaranteed Obligations
of such Guarantor is rescinded or must be otherwise restored by any holder of
any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
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alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Guaranteed Obligations, except through the exercise
of the rights of subrogation pursuant to Section 4.2.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 9.2) for
purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed Obligations
being deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of Section 4.1.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
an amount equal to such other Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not recover with respect to such excess until payment and
satisfaction in full of all of such obligations. For purposes hereof, (i)
"Excess Funding Guarantor" shall mean any Guarantor that has paid an amount in
excess of its Pro Rata Share of the Guaranteed Obligations; (ii) "Excess
Payment" shall mean, in respect of any Guaranteed Obligations, the amount paid
by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations, and (iii) "Pro Rata Share", for the purposes of this
Section 4.6, shall mean, for any Guarantor, the ratio (expressed as a
percentage) of (a) the amount by which the aggregate present fair saleable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (b) the amount by which the aggregate present fair saleable value
of all assets and other properties of the Borrower and all of the Guarantors
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Borrower and the Guarantors hereunder) of the Borrower and
all of the Guarantors, all as of the Closing Date (if any Guarantor becomes a
party hereto subsequent to the Closing Date, then for the purposes of this
Section 4.6 such subsequent Guarantor shall be deemed to have been a Guarantor
as of the Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor shall be
deemed true as of the Closing Date).
4.7 CONTINUING GUARANTY.
The guaranty in this Section 4 is a continuing guaranty, and shall
apply to all Guaranteed Obligations whenever arising.
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SECTION 5
CONDITIONS
5.1 CONDITIONS TO CLOSING.
This Credit Agreement shall become effective and new Extensions of
Credit may be made upon the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents.
Receipt by the Agent of (i) multiple counterparts of this Credit
Agreement, (ii) a Revolving Note for the account of each Lender, (iii)
a Swingline Note for the account of the Swingline Lender and (iv) those
Pledge Agreements executed as of the Closing Date, in each case
executed by the appropriate parties.
(b) Legal Opinion of Counsel. Receipt by the Agent of
multiple counterparts of opinions of counsel for the Credit Parties
relating to the Credit Documents and the transactions contemplated
herein, in form and substance satisfactory to the Agent and its
counsel.
(c) Corporate Documents. Receipt by the Agent of the
following (or their equivalent) for each of the Credit Parties:
(i) Articles of Incorporation. Copies of the
articles of incorporation or charter documents certified to be
true and complete as of a recent date by the appropriate
governmental authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the
Board of Directors approving and adopting the respective
Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a
secretary or assistant secretary as of the Closing Date to be
true and correct and in force and effect as of such date.
(iii) Bylaws. Copies of the bylaws certified by a
secretary or assistant secretary as of the Closing Date to be
true and correct and in force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of
(i) certificates of good standing, existence or its equivalent
certified as of a recent date by the appropriate governmental
authorities of the state of incorporation and each other state
in which the failure to so qualify and be in good standing
would have a material adverse effect on the business or
operations in such state and (ii) a certificate indicating
payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing
authorities.
(d) Secretary's Certificate. The Agent shall have
received a certificate of a duly authorized officer of the Borrower and
the other Credit Parties hereunder dated the Effective Date,
substantially in the form of Schedule 5.1(d) with appropriate
insertions and attachments.
(e) Fees. Receipt by the Agent of all fees, if any, owing
pursuant to the Agent's Fee Letter, Section 3.5 or otherwise.
(f) Subsection 5.2 Conditions. The conditions specified
in Sections 5.2 shall be satisfied on the Closing Date as if Extensions
of Credit were to be made on such date.
(g) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by this Credit
Agreement shall be reasonably satisfactory in form and substance to the
Agent and its counsel.
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5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations
and warranties made by the Borrower and the other Credit Parties herein
or in any other Credit Documents or which are contained in any
certificate furnished at any time under or in connection herewith shall
be true and correct in all material respects on and as of the date of
such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event
of Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless
such Default or Event of Default shall have been waived in accordance
with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If such
Extension of Credit is made pursuant to Section 2.1, all conditions set
forth therein shall have been satisfied.
(d) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to Section 2.2, all conditions set
forth therein shall have been satisfied.
(e) Additional Conditions to Swingline Loans. If such
Extension of Credit is made pursuant to Section 2.3, all conditions set
forth therein shall have been satisfied.
Each request for Extension of Credit and each acceptance by the
Borrower of an Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a), (b), (c), (d) and (e)
of this subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
the Extensions of Credit herein provided for, each of the members of the
Consolidated Group party hereto hereby represents and warrants to the Agent and
to each Lender that:
6.1 FINANCIAL CONDITION.
Each of the financial statements described below have been prepared in
accordance with GAAP consistently applied throughout the periods covered thereby
are complete and correct in all material respects and present fairly the
financial condition and results from operations of the entities and for the
periods specified, subject in the case of interim Borrower-prepared statements
to normal year-end adjustments:
(i) audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries dated as of
December 31, 1998 and December 31, 1999, together with related
statements of income and cash flows certified by Ernst & Young
LLP, certified public accountants; and
(ii) [intentionally omitted].
6.2 NO CHANGE.
(i) Since December 31, 1999, there has been no development or event
which has had a Material Adverse Effect (other than as disclosed in press
releases issued by the Borrower on or prior to April 25, 2000 and as
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disclosed in the bank meeting for the Lenders held on April 5, 2000), and (ii)
no Restricted Payments have been made or declared or are contemplated by any
members of the Consolidated Group except to the extent permitted hereunder.
6.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the members of the Consolidated Group (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or other necessary power and authority and
the legal right to own and operate all its material property, to lease the
material property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation or
partnership and, to the extent applicable under local law, in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except to
the extent that the failure to so qualify or be in good standing would not, in
the aggregate, have a Material Adverse Effect, (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
would not either violate the specific representations contained in the last
sentence of this Section 6.3 or, in the aggregate, reasonably be expected to
have a Material Adverse Effect, and (e) has good record and marketable title
to, or a valid leasehold interest in and right to use, the Property material to
its business and operations free and clear of Liens other than Permitted Liens.
6.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS .
Each of the Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of the Credit Documents to which it is party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery or
performance of any Credit Document by the Credit Parties (other than those
which have been obtained,) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens created by such Credit Documents).
Each Credit Document to which the Credit Parties are a party has been duly
executed and delivered on behalf of such Credit Parties. Each Credit Document
to which it is a party constitutes a legal, valid and binding obligation of
such Credit Parties enforceable against such Credit Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
6.5 NO LEGAL BAR; NO DEFAULT.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any Contractual Obligation of any member of the
Consolidated Group (except those as to which waivers or consents have been
obtained), and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its
Contractual Obligations in any respect which would reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
6.6 NO MATERIAL LITIGATION.
Except as set forth in Schedule 6.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the members of the Consolidated Group, threatened by
or against any member of the Consolidated Group or against any of their
respective properties or revenues (a) with respect to the Credit Documents or
any Extension of Credit or any of the transactions contemplated hereby, or (b)
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect.
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6.7 INVESTMENT COMPANY ACT.
No member of the Consolidated Group is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
6.8 FEDERAL REGULATIONS.
No part of the proceeds of any Extension of Credit hereunder will be
used directly or indirectly for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No member of the Consolidated Group owns "margin stock" except as
identified in the financial statements referred to in Section 6.1 and the
aggregate value of all "margin stock" owned by each member of the Consolidated
Group does not exceed 25% of the value of its assets.
6.9 ERISA.
Except as would not reasonably be expected to result in a Material
Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has occurred,
and, to the best knowledge of the members of the Consolidated Group, no event
or condition has occurred or exists as a result of which any Termination Event
could reasonably be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Plan has been maintained, operated, and funded
in compliance with its own terms and in material compliance with the provisions
of ERISA, the Code, and any other applicable federal or state laws; and (iv) no
lien in favor of the PBGC or a Plan has arisen or is reasonably likely to arise
on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
under all Single Employer Plans (determined within the meaning of Section
401(a)(2) of the Code, utilizing the actuarial assumptions used to fund such
Plans), whether or not vested, did not, as of the last annual valuation date
prior to the date on which this representation is made or deemed made, exceed
the current value of the assets of all such Plans.
(c) No member of the Consolidated Group nor any ERISA Affiliate
has incurred, or, to the best knowledge of any member of the Consolidated
Group, could be reasonably expected to incur, any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan. No member of the
Consolidated Group nor any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if a member of the Consolidated Group or any
ERISA Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No member of the
Consolidated Group nor any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has
been terminated (within the meaning of Title IV of ERISA), and no Multiemployer
Plan is, to the best knowledge of the members of the Consolidated Group,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject a member of
the Consolidated Group or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) The present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided and the
employees participating) of the liability of each member of the Consolidated
Group and each ERISA Affiliate for post-retirement welfare benefits to be
provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA), net of all assets under
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all such Plans allocable to such benefits, are reflected on the Financial
Statements in accordance with FAS 106. Each Plan which is a welfare plan (as
defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA and
Section 4980B of the Code apply has been administered in compliance in all
material respects of such sections.
(f) Neither the execution and delivery of this Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is subject to the prohibitions of Sections 406 or 407 of
ERISA, or in connection with which a tax could be imposed pursuant to Section
4975 of the Code. The representation by the members of the Consolidated Group
in the preceding sentence is made in reliance upon and subject to the accuracy
of the Lenders' representation in Section 11.17, received at least three
Business Days before the consummation of the Extension of Credit with respect
to which this representation is made, with respect to their source of funds and
is subject, in the event that the source of the funds used by the Lenders in
connection with this transaction is an insurance company's general asset
account, to the continued validity of Department of Labor Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995), or any successor
thereto, or compliance with regulations issued under Section 401(c)(1)(A) of
ERISA, which provides relief from the restrictions of certain portions of
Sections 406 and 407 of ERISA and the taxes imposed by Section 4975 of the Code
for certain transactions involving an insurance company general account.
6.10 ENVIRONMENTAL MATTERS.
Except to the extent that all of the following, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the members of the Consolidated
Group, the facilities and properties owned, leased or operated by each of the
members of the Consolidated Group (the "Properties") do not contain any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute a violation of, or (ii) could reasonably be expected to give rise to
liability under, any Environmental Law.
(b) To the best knowledge of the members of the Consolidated
Group, the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, in all material respects
with all applicable Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental Law with respect to
the Properties or the business operated by each of the members of the
Consolidated Group (the "Business").
(c) No member of the Consolidated Group has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does any member of
the Consolidated Group have knowledge that any such notice will be received or
is being threatened.
(d) To the best knowledge of the members of the Consolidated
Group, Materials of Environmental Concern have not been transported or disposed
of from the Properties in violation of, or in a manner or to a location which
could reasonably be expected to give rise to liability under any Environmental
Law, nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation of, or
in a manner that could reasonably be expected to give rise to liability under,
any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best of the knowledge of the members of the
Consolidated Group, threatened, under any Environmental Law to which any of the
members of the Consolidated Group is or will be named as a party with respect
to the Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business.
(f) To the best knowledge of the members of the Consolidated
Group, there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any member of the Consolidated Group in connection with the
Properties or otherwise in connection
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with the Business, in violation of or in amounts or in a manner that could
reasonably be expected to give rise to liability under Environmental Laws.
6.11 PURPOSE OF EXTENSIONS OF CREDIT.
The Extensions of Credit will be used (i) to refinance existing
outstanding indebtedness of the Borrower and (ii) for working capital and other
general corporate purposes of the members of the Consolidated Group, including
acquisitions not restricted by Section 8.3(d) hereof.
6.12 CONSOLIDATED GROUP.
Set forth on Schedule 6.12 is a complete and accurate list as of the
Closing Date of all Subsidiaries of the Borrower and of the share ownership of
the Borrower and each such Subsidiary. Information on the attached Schedule
6.12 includes state of organization; the number of shares of each class of
capital stock or partnership or other equity interests (identified by type)
outstanding; the number and percentage of outstanding shares of each class of
stock or percentage of ownership interest; and the number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and similar rights. The outstanding capital stock and partnership and
other equity interests of all such members of the Consolidated Group are
validly issued, fully paid and non-assessable and are owned, free and clear of
all Liens (other than Liens permitted hereunder). There are no outstanding
options or other rights pertaining to the partnership or other equity interests
of the members of the Consolidated Group, and no voting trusts, shareholders'
or partners' agreements (other than the partnership agreements relating to the
formation, organization, operation and governance of the partnerships, copies
of which have been provided to the Agent and the Lenders) or similar agreement
affecting either ownership of or the right to vote such partnership interests.
6.13 INTELLECTUAL PROPERTY.
Each member of the Consolidated Group owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any member of the Consolidated Group know of
any valid basis for any such claim. The use of the Intellectual Property and of
marks, names, technology, know-how and processes by the members of the
Consolidated Group do not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.14 NO BURDENSOME RESTRICTIONS.
No Requirement of Law or Contractual Obligation of any member of the
Consolidated Group could reasonably be expected to have a Material Adverse
Effect. Each of the members of the Consolidated Group have obtained, and
maintained in force and effect, all licenses, permits, franchises or other
governmental authorizations material to the ownership or use of the Property
used in its business and in the conduct of its business and operations, except
to the extent as would not have a Material Adverse Effect.
6.15 TAXES.
Each member of the Consolidated Group has filed, or caused to be
filed, all material tax returns (Federal, state, local and foreign) required to
be filed and paid all taxes shown thereon to be due (including interest and
penalties) and has paid all other material taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing (or necessary to preserve any Liens in favor
of the Lenders) by it, except for such taxes (i) which are not yet delinquent
or (ii) as are being contested in good faith and by proper proceedings, and
against which adequate reserves are being maintained in accordance with GAAP,
or as the case may be, appropriate reserves under local generally accepted
accounting principles. None of the Credit Parties is aware of any proposed
material tax assessments against any member of the
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Consolidated Group.
SECTION 7
AFFIRMATIVE COVENANTS
Each of the members of the Consolidated Group party hereto covenants
and agrees that on the Closing Date, and so long as this Credit Agreement is in
effect and until the Commitments have been terminated, no Loans or LOC
Obligations remain outstanding and all amounts owing hereunder or in connection
herewith, have been paid in full, each of the members of the Consolidated Group
party hereto shall:
7.1 FINANCIAL STATEMENTS.
Furnish to each of the Lenders:
(a) Annual Financial Statements. As soon as available,
but in any event within 90 days after the end of each fiscal year
audited consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of the fiscal year and the related audited
consolidated statements of income, retained earnings, shareholders'
equity and cash flows for such year; and audited by Ernst & Young LLP
or other firm of independent certified public accountants of
nationally recognized standing reasonably acceptable to the Required
Lenders, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification indicating that the scope
of the audit was inadequate to permit such independent certified
public accountants to certify such financial statements without such
qualification;
(b) Quarterly Financial Statements. As soon as available
and in any event within 45 days after the end of each of the first
three fiscal quarters, a company-prepared consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of the quarter and
the related Borrower-prepared consolidated statements of income and
retained earnings for such quarterly period and cash flows for the
fiscal year to date; in each case setting forth in comparative form
the consolidated figures for the corresponding period or periods of
the preceding fiscal year or the portion of the fiscal year ending
with such period, as applicable (but not for any period prior to the
Closing Date), in each case subject to normal recurring year-end audit
adjustments.
All such financial statements to be complete and correct in all
material respects (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (a) and
(b) above, in accordance with GAAP applied consistently throughout the
periods reflected therein (except as approved by such accountants and
disclosed therein) and further accompanied by a description of, and an
estimation of the effect on the financial statements on account of, a
change in the application of accounting principles as provided in
Section 1.3.
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish to each of the Lenders:
(a) Accountant's Certificate and Reports. Concurrently
with the delivery of the financial statements referred to in
subsection 7.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate.
(b) Officer's Certificate. Concurrently with the
delivery of the financial statements referred to in Sections 7.1(a)
and 7.1(b) above, a certificate of a Responsible Officer stating that,
to the best of such
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Responsible Officer's knowledge and belief, (i) the financial
statements fairly present the financial condition of the parties
covered by such financial statements in all material respects, (ii)
during such period the members of the Consolidated Group have observed
or performed all of their covenants and other agreements in all
material respects, and satisfied in all material respects every
material condition, contained in this Credit Agreement to be observed,
performed or satisfied by them, (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (iv) such certificate shall include
the calculations required to indicate compliance with Section 7.9. A
form of Officer's Certificate is attached as Schedule 7.2(b).
(c) Public Information. Within thirty days after the
same are sent, copies of all reports (other than those otherwise
provided pursuant to subsection 7.1) and other financial information
which any member of the Consolidated Group sends to its public
stockholders, and within thirty days after the same are filed, copies
of all financial statements and non-confidential reports which any
member of the Consolidated Group may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority.
(d) Other Information. Promptly, such additional
financial and other information as the Agent, at the request of any
Lender, may from time to time reasonably request.
7.3 NOTICES.
Give notice to the Agent (which shall promptly transmit such notice to
each Lender) of:
(a) Defaults. Immediately (and in any event within two
(2) Business Days) after any Credit Party knows or has reason to know
thereof, the occurrence of any Default or Event of Default.
(b) Contractual Obligations. Promptly, any default or
event of default under any Contractual Obligation of any member of the
Consolidated Group which would reasonably be expected to have a
Material Adverse Effect.
(c) Legal Proceedings. Promptly, any litigation, or any
investigation or proceeding (including without limitation, any
environmental proceeding) known to any member of the Consolidated
Group, or any material development in respect thereof, affecting any
member of the Consolidated Group which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect.
(d) ERISA. Promptly, after any Responsible Officer of
the Borrower knows or has reason to know of (i) any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, a Termination Event; (ii)
with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against any of their ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment
on or before the due date (including extensions) thereof of all
amounts which the members of the Consolidated Group or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms
and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto (except where such failure is
not material in amount or in the duration of any delay in payment); or
(iv) any change in the funding status of any Plan that reasonably
could be expected to have a Material Adverse Effect; together, with a
description of any such event or condition or a copy of any such
notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto.
Promptly upon request, the members of the Consolidated Group shall
furnish the Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not
limited to, copies of each annual report/return (Form 5500 series), as
well as all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year"
(within the meaning of Section 3(39) of ERISA).
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(e) Other. Any other development or event which a
Responsible Officer determines could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Credit Parties propose to take
with respect thereto.
7.4 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with industry
practice (subject, where applicable, to specified grace periods) all material
obligations of each member of the Consolidated Group of whatever nature and any
additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such obligations, except when the amount or
validity of such obligations and costs is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity
with GAAP (or its equivalent for any foreign entity) with respect thereto have
been provided on the books of the Consolidated Group, as the case may be.
7.5 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now
conducted by it on the date hereof and similar or related businesses and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges, licenses and
franchises necessary or desirable in the normal conduct of its business; comply
with all Contractual Obligations and Requirements of Law applicable to it
except to the extent that failure to comply therewith would not, in the
aggregate, have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies insurance on
all its material property in at least such amounts and against at least such
risks as are customarily insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Agent, upon
written request, full information as to the insurance carried.
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP (or its equivalent for any foreign
entity) and all Requirements of Law shall be made of all dealings and
transactions in relation to its businesses and activities; and permit, during
regular business hours and upon reasonable notice by the Agent, the Agent to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records (other than materials protected by the attorney-client
privilege and materials which the Credit Parties may not disclose without
violation of a confidentiality obligation binding upon it) at any reasonable
time, and to discuss the business, operations, properties and financial and
other condition of the members of the Consolidated Group with officers and
employees of the members of the Consolidated Group and with their independent
certified public accountants. The cost of the inspection referred to in the
preceding sentence shall be borne by the Lenders unless an Event of Default has
occurred and is continuing, in which case the cost of such inspection shall be
borne by the Credit Parties.
7.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and take
reasonable actions to ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply in all material respects with and maintain,
and take reasonable actions to ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and
all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws except to the extent that
failure to do so would not reasonably be expected to have a Material
Adverse Effect;
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(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the
same are being contested in good faith by appropriate proceedings and
the failure to do or the pendency of such proceedings would not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and
the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law
applicable to the operations of the members of the Consolidated Group
or the Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of
the negligence or misconduct of the party seeking indemnification
therefor. The agreements in this paragraph shall survive repayment of
the Loans and all other amounts payable hereunder, and termination of
the Commitments.
7.9 FINANCIAL COVENANTS.
(a) Ratio of Consolidated Funded Debt to Consolidated
Total Capitalization. There shall be maintained as of the end of each
fiscal quarter (commencing with the fiscal quarter ending March 31,
2000), a ratio of Consolidated Funded Debt to Consolidated Total
Capitalization of not greater than .40 to 1.0.
(b) Consolidated Leverage Ratio. There shall be
maintained, as of the end of each fiscal quarter (commencing with the
fiscal quarter ending March 31, 2000), a Consolidated Leverage Ratio
of not greater than 3.0 to 1.0:
(c) Consolidated Fixed Charge Coverage Ratio. There
shall be maintained, as of the end of each fiscal quarter (commencing
with the fiscal quarter ending March 31, 2000), a Consolidated Fixed
Charge Coverage Ratio of at least 2.5 to 1.0:
7.10 AGENCY FEES.
Pay to the Agent the annual agency fee and comply with the other
agreements provided for in the Agent's Fee Letter.
7.11 ADDITIONAL GUARANTIES AND STOCK PLEDGES.
If a Subsidiary of the Borrower becomes a Material Subsidiary, then
the Borrower will promptly notify the Agent thereof and cause such Material
Subsidiary to:
(a) execute a Guarantor Joinder Agreement (or in lieu
thereof with respect to any Foreign Subsidiary which is a Material
Subsidiary, the Borrower shall deliver stock certificates and related
pledge agreement evidencing the pledge of 66% of the Voting Stock of
such Foreign Subsidiary, together, with undated stock transfer powers
executed in blank, such pledge agreement to secure on a pari passu
basis the obligations of the Credit Parties under the Credit Documents
and the Indebtedness permitted by Section 8.1(g) (each such Foreign
Subsidiary that has had 66% of its Voting Stock pledged to the Agent
is referred to herein as a "Covered Foreign Subsidiary"); and
(b) deliver such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and
opinions of counsel as the Agent may reasonably request.
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In addition, if all Subsidiaries of the Borrower that are not Guarantors or
Covered Foreign Subsidiaries (collectively, the "Non-Covered Subsidiaries")
shall, as of any date of determination and determined on a consolidated basis,
collectively account for (or have attributed to them) during the most recently
ended four fiscal quarter period 20% or more of the Consolidated EBITDA or
assets of the Consolidated Group (the "Threshold Requirement"), then the
Borrower will promptly notify the Agent thereof and cause one or more of such
Non-Covered Subsidiaries to satisfy clauses (a) and (b) above such that
immediately after the joinder of such Subsidiaries as Guarantors hereunder (or,
in the case of Foreign Subsidiaries, the pledge of 66% of the Voting Stock of
such Subsidiaries), the remaining Non-Covered Subsidiaries shall not exceed the
Threshold Requirement.
SECTION 8
NEGATIVE COVENANTS
Each of the members of the Consolidated Group party hereto covenants
and agrees that on the Closing Date, and so long as this Credit Agreement is in
effect and until the Commitments have been terminated, no Loans or LOC
Obligations remain outstanding and all amounts owing hereunder or in connection
herewith, have been paid in full, no member of the Consolidated Group shall:
8.1 INDEBTEDNESS.
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
set forth in Schedule 8.1 (and renewals, refinancings and extensions
thereof on terms and conditions no less favorable to such Person than
such existing Indebtedness);
(c) purchase money Indebtedness (including Capital
Leases or Synthetic Leases) hereafter incurred by the Borrower or any
of its Subsidiaries to finance the purchase of fixed assets provided
that (i) the total of all such Indebtedness for all such Persons taken
together shall not exceed an aggregate principal amount of $5,000,000
at any one time outstanding (including any such Indebtedness referred
to in subsection (b) above); (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed; and
(iii) no such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the time of
such refinancing;
(d) obligations of the Borrower or any of its
Subsidiaries in respect of Hedging Agreements entered into in order to
manage existing or anticipated interest rate or exchange rate risks
and not for speculative purposes;
(e) intercompany Indebtedness, provided that:
(i) with respect to any Non-Covered Subsidiary,
the aggregate amount of intercompany
Indebtedness incurred by such Subsidiary shall not exceed
$5,000,000 at any time outstanding;
(ii) with respect to all Non-Covered
Subsidiaries, the aggregate amount of intercompany
Indebtedness incurred by such Subsidiaries collectively shall
not exceed $10,000,000 at any time outstanding;
(iii) with respect to any Covered Foreign
Subsidiary, the aggregate amount of intercompany Indebtedness
incurred by such Subsidiary in excess of what is in existence
on the Closing Date and listed on Schedule 8.1 shall not
exceed $5,000,000 at any time outstanding;
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(iv) with respect to all Covered Foreign
Subsidiaries, the aggregate amount of intercompany
Indebtedness incurred by such Subsidiaries collectively in
excess of what is in existence on the Closing Date and listed
on Schedule 8.1 shall not exceed $15,000,000 at any time
outstanding.
(f) Indebtedness (i) assumed in connection with
acquisitions (so long as such Indebtedness was not incurred in
anticipation of the respective acquisition), (ii) of newly acquired
Subsidiaries acquired in acquisitions (so long as such Indebtedness
was not incurred in anticipation of the respective acquisition) and
(iii) owed to the seller in any acquisition constituting part of the
purchase price thereof, so long as in the case of each of clauses (i),
(ii) and (iii) the respective acquisition did not violate Section
8.3(d);
(g) Indebtedness of the Borrower and its Subsidiaries
pursuant to a $15,000,000 revolving credit facility extended by Bank
of America;
(h) guaranty agreements executed by the Borrower
guaranteeing obligations of Xxxxx Health Plan Services, Inc. to its
lender or lenders provided the aggregate amount guaranteed thereunder
shall not exceed $50,000,000 at any time outstanding;
(i) one or more letters of credit issued for the account
of the Borrower and for the benefit of Xxxxx Systems, Inc. ("Xxxxx"),
not to exceed in the aggregate $30,000,000; and
(j) other Indebtedness which shall not exceed $5,000,000
in the aggregate at any time outstanding.
8.2 LIENS.
Contract, create, incur, assume or permit to exist any Lien with
respect to any of their respective property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or hereafter acquired,
except for:
(a) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or levies not
yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(c) Liens (other than Liens created or imposed under
ERISA) 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, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(d) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the judgments
secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have
been discharged within 30 days after the expiration of any such stay;
(e) easements, rights-of-way, restrictions (including
zoning restrictions), minor defects or
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irregularities in title and other similar charges or encumbrances not,
in any material respect, impairing the use of the encumbered Property
for its intended purposes;
(f) Liens on Property securing purchase money
Indebtedness (including Capital Leases) to the extent permitted under
Section 8.1(c), provided that any such Lien attaches to such Property
concurrently with or within 90 days after the acquisition thereof;
(g) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower
or any Subsidiary;
(h) normal and customary rights of setoff upon deposits
of cash in favor of banks or other depository institutions;
(i) Liens existing as of the Closing Date and set forth
on Schedule 8.2; provided that (i) no such Lien shall at any time be
extended to or cover any Property other than the Property subject
thereto on the Closing Date and (ii) the principal amount of the
Indebtedness secured by such Liens shall not be extended, renewed,
refunded or refinanced;
(j) Liens on property of the Borrower or any of its
Subsidiaries created solely for the purpose of securing Indebtedness
permitted by subsection 8.1(f) (so long as in the case of clauses (i)
and (ii) thereof such Lien was not incurred in anticipation of the
related acquisition provided that no such Lien shall extend to or
cover any property of the Borrower or such Subsidiary other than the
respective property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such property;
(k) Liens under the Pledge Agreements; and
(l) other Liens provided that the Indebtedness secured
by such Liens shall not exceed $5,000,000 in the aggregate at any time
outstanding.
8.3 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, CAPITAL
EXPENDITURES, ETC.
(a) Dissolve, liquidate or wind up their affairs, except (i) in
connection with a disposition of assets permitted by the terms of subsection
(c) hereof and (ii) except for the dissolution and liquidation of a Subsidiary
that is not a Credit Party where the Parent or another Subsidiary receives the
assets of such Subsidiary;
(b) Enter into any transaction of merger or consolidation;
provided, however, that, so long as no Default or Event of Default would be
directly or indirectly caused as a result thereof,
(i) the Borrower may enter into any such merger of
consolidation transaction so long as the Borrower is the surviving
corporation; and
(ii) a Subsidiary may merge or consolidate with any
Person provided that if such Subsidiary is a Credit Party and is not
the surviving corporation, such surviving corporation shall execute
and deliver to the Agent credit documents substantially similar to the
Credit Documents executed by such non-surviving Subsidiary;
(c) Sell, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale and leaseback transaction)
other than (i) the sale of inventory in the ordinary course of business, (ii)
the sale or disposition of machinery and equipment no longer used or useful in
the conduct of such Person's business, (iii) temporary intercompany transfers
of accounts receivable owned by any Credit Party incorporated or organized in
Florida in accordance with the Borrower's customary practices and (iv) others
sales, transfers or dispositions of Property to the extent that the aggregate
net book value of such Property sold, transferred or otherwise disposed of in
any fiscal year shall not exceed 15% of the assets of the Consolidated Group
for the prior fiscal year;
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(d) Acquire all or any portion of the capital stock or securities
of any other Person or purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) all or any substantial part of
the Property of any other Person, unless (i) the aggregate cash cost of any
such individual acquisition (which includes assumed Indebtedness) in any fiscal
year shall not exceed $50,000,000; and (ii) the aggregate cash cost of all such
acquisitions (which shall include assumed Indebtedness) shall not in any fiscal
year exceed $100,000,000 (on a non-cumulative basis); provided, however, the
foregoing restrictions shall only be applicable in any fiscal year if
Consolidated Funded Debt exceeds cash and Cash Equivalents of the Consolidated
Group as of the last day of such fiscal year;
(e) Make Capital Expenditures in any fiscal year in excess of 25%
of revenues for the prior fiscal year; provided, however, the foregoing
restriction shall only be applicable in any fiscal year if Consolidated Funded
Debt exceeds cash and Cash Equivalents of the Consolidated Group as of the last
day of such fiscal year.
8.4 INVESTMENTS.
Make an Investment in any Person except for Investments which are
consistent with the Borrower's investment policy set forth in Schedule 8.4.
8.5 TRANSACTIONS WITH AFFILIATES.
Enter into or permit to exist any transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder or Affiliate other than where such transactions
are on terms and conditions substantially as favorable as would be obtainable
in a comparable arm's-length transaction with a Person other than an officer,
director, shareholder or Affiliate.
8.6 FISCAL YEAR.
Change its fiscal year from a calendar year.
8.7 RESTRICTED PAYMENTS.
Make or permit any Restricted Payments if such Restricted Payment
would cause the Borrower to be in violation of any of the financial covenants
set forth in Section 7.9.
8.8 SALE LEASEBACKS.
Directly or indirectly, become or remain liable as lessee or as
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (whether real or personal or mixed),
whether now owned or hereafter acquired, (i) which such Person has sold or
transferred or is to sell or transfer to any other Person other than a Credit
Party or (ii) which such Person intends to use for substantially the same
purpose as any other Property which has been sold or is to be sold or
transferred by such Person to any other Person in connection with such lease.
8.9 NO FURTHER NEGATIVE PLEDGES.
Except with respect to prohibitions against other encumbrances on
specific Property encumbered to secure payment of particular Indebtedness
(which Indebtedness relates solely to such specific Property, and improvements
and accretions thereto, and is otherwise permitted hereby), no member of the
Consolidated Group will enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien
upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given
for some other obligation.
SECTION 9
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EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of
any of the Loans or of any reimbursement obligations arising from
drawings under Letters of Credit, or
(ii) default, and such defaults shall continue for five
(5) or more Business Days, in the payment when due of any interest on
the Loans or on any reimbursement obligations arising from drawings
under Letters of Credit, or of any Fees or other amounts owing
hereunder, under any of the other Credit Documents or in connection
herewith or therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made herein, in any of the other Credit Documents, or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect on the date as of
which it was deemed to have been made; or
(c) Covenants.
(i) A default in the due performance or observance of
any term, covenant or agreement contained in Section 7.2, 7.3(a), 7.9,
7.11, or 8.1 through 8.9, inclusive, or
(ii) A default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a responsible officer
of a Credit Party becoming aware of such default or notice thereof by
the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any material term, covenant or agreement
in any of the other Credit Documents (subject to applicable grace or cure
periods, if any), or (ii) except as to the Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section
8.3(a), Section 8.3(b) or Section 8.3(c), any Credit Document shall fail to be
in full force and effect or to give the Agent and/or the Lenders any material
part of the Liens, rights, powers and privileges purported to be created
thereby; or
(e) Guaranties. Except as to the Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section
8.3(a), Section 8.3(b) or Section 8.3(c), the guaranty given by any Guarantor
hereunder or any material provision thereof shall cease to be in full force and
effect, or any Guarantor hereunder or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor shall default in the due performance or observance
of any term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to any member of the Consolidated Group; or
(g) Defaults under Other Agreements.
(i) Any member of the Consolidated Group shall default
in the performance or observance
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(beyond the applicable grace period with respect thereto, if any) of
any material obligation or condition of any contract or lease material
to the Consolidated Group, taken as a whole; or
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in excess of
$2,500,000 in the aggregate for the Consolidated Group taken as a
whole, (A) (1) any member of the Consolidated Group shall default in
any payment (beyond the applicable grace period with respect thereto,
if any) with respect to any such Indebtedness, or (2) the occurrence
and continuance of a default in the observance or performance relating
to such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or
lapse of time is required), any such Indebtedness to become due prior
to its stated maturity; or (B) any such Indebtedness shall be declared
due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof;
or
(h) Judgments. Any member of the Consolidated Group shall fail
within 30 days of the date due and payable to pay, bond or otherwise discharge
any judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $1,000,000, and which is not
stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; or
(i) ERISA. Any of the following events or conditions, if such
event or condition reasonably could be expected to have a Material Adverse
Effect: (1) any "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets of a
member of the Consolidated Group or any ERISA Affiliate in favor of the PBGC or
a Plan; (2) a Termination Event shall occur with respect to a Single Employer
Plan, which is, in the reasonable opinion of the Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) a Termination
Event shall occur with respect to a Multiemployer Plan or Multiple Employer
Plan, which is, in the reasonable opinion of the Agent, likely to result in (i)
the termination of such Plan for purposes of Title IV of ERISA, or (ii) a
member of the Consolidated Group or any ERISA Affiliate incurring any liability
in connection with a withdrawal from, reorganization of (within the meaning of
Section 4241 of ERISA), or insolvency of (within the meaning of Section 4245 of
ERISA) such Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject a member of the Consolidated Group
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which a member of the Consolidated Group or any ERISA
Affiliate has agreed or is required to indemnify any person against any such
liability; or
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time
thereafter, the Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Credit Parties take any of the following
actions:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by
the Credit Parties to the Agent and/or any of the Lenders hereunder to
be due whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Credit Parties.
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(iii) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Agent additional cash, to be held by the
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur, then the Commitments shall automatically terminate
and all Loans, all reimbursement obligations arising from drawings under
Letters of Credit, all accrued interest in respect thereof, all accrued and
unpaid Fees and other indebtedness or obligations owing to the Agent and/or any
of the Lenders hereunder automatically shall immediately become due and payable
without presentment, demand, protest or the giving of any notice or other
action by the Agent or the Lenders, all of which are hereby waived by the
Credit Parties.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints Bank of America, N.A. as
administrative agent (in such capacity hereunder, the "Agent") of such Lender
to act as specified herein and the other Credit Documents, and each such Lender
hereby authorizes the Agent as the agent for such Lender, to take such action
on its behalf under the provisions of this Credit Agreement and the other
Credit Documents and to exercise such powers and perform such duties as are
expressly delegated by the terms hereof and of the other Credit Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and none of the Credit Parties shall have any rights
as a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit
Documents, the Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for any Credit Party or any of their respective
Affiliates.
10.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the gross negligence or willful
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 EXCULPATORY PROVISIONS.
The Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for
its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement or other written or oral statement referred to or
provided for in, or
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received by the Agent under or in connection herewith or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of any Credit Party to perform its
obligations hereunder or thereunder. The Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower or any Credit Party in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or
therewith furnished or made by the Agent to the Lenders or by or on behalf of
the Credit Parties to the Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the
use of the proceeds of the Loans or the use of the Letters of Credit or the
existence or possible existence of any Default or Event of Default or to
inspect the properties, books or records of the Credit Parties or any of their
respective Affiliates.
10.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agent with reasonable care). The Agent may deem
and treat the Lenders as the owner of their respective interests hereunder for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Agent in accordance with Section 11.3(b)
hereof. The Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder or under any of the other Credit Documents in accordance
with a request of the Required Lenders (or to the extent specifically provided
in Section 11.6, all the Lenders) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
10.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, describing such Default or Event of Default. In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has not
made any representations or warranties to it and that no act by the Agent or
any affiliate thereof hereinafter taken, including any review of the affairs of
any Credit Party or any of their respective Affiliates, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower, the other Credit Parties or
their respective Affiliates and made its own decision to make its Loans
hereunder and enter into this Credit Agreement. Each Lender also represents
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and
to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower, the other Credit Parties and
their respective Affiliates. Except for notices, reports and other documents
expressly required to be
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furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrower, the other
Credit Parties or any of their respective Affiliates which may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Commitments
(and Participation Interests therein) (or if the Commitments have expired or
been terminated, in accordance with the respective principal amounts of
outstanding Revolving Loans and Participation Interests of the Lenders), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the final payment of all of the obligations of the Borrower hereunder
and under the other Credit Documents) be imposed on, incurred by or asserted
against the Agent in its capacity as such in any way relating to or arising out
of this Credit Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of the
Agent. If any indemnity furnished to the Agent for any purpose shall, in the
opinion of the Agent, be insufficient or become impaired, the Agent may,
subject to the foregoing provisions, call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section shall survive the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the members of the
Consolidated Group and their respective Affiliates as though the Agent were not
the Agent hereunder. With respect to the Loans made by and all obligations of
the Borrower hereunder and under the other Credit Documents, the Agent shall
have the same rights and powers under this Credit Agreement as any Lender and
may exercise the same as though it were not the Agent, and the terms "Lender"
and "Lenders" shall include the Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and be removed with or without cause by the Required Lenders upon 30
days' written notice to the Agent. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent, subject to
the consent of the Borrower (such consent not to be unreasonably withheld and
such consent not to be required if, at the time of such successor appointment,
a Default or Event of Default exists hereunder). If no successor Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the notice of resignation or notice of
removal, as appropriate, then the retiring Agent shall select a successor Agent
provided such successor is a Lender hereunder or a commercial bank organized
under the laws of the United States of America or of any State thereof and has
a combined capital and surplus of at least $400,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent, as appropriate, under this Credit
Agreement and the other Credit Documents and the provisions of this Section
10.9 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Credit Agreement.
SECTION 11
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MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to
the number set out below, (iii) if to a Credit Party, the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service, or (iv) if to a Credit Party, the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address, in the
case of the Credit Parties and the Agent, set forth below, and, in the case of
the Lenders, set forth on Schedule 2.1(a), or at such other address as such
party may specify by written notice to the other parties hereto:
if to the Borrower or any Guarantor:
Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: W. Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
15th Floor, NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Administrative Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Person to such Lender hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether such Lender shall have
made any demand hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of such Lender
subsequent thereto. Any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 3.14 or Section 11.3(d) may exercise
all rights of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit 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 (i) the Credit
Parties may not assign or transfer any of their interests and obligations
hereunder without the prior written consent of the Lenders, and (ii) the
Lenders may assign, transfer and grant participation interests in their
interests and obligations hereunder
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only as provided in this Section 11.3; provided, however, that notwithstanding
anything contained herein to the contrary, (A) any Lender may at any time
assign or pledge all or any portion of its rights under this Credit Agreement
to a Federal Reserve Bank, and (B) any Lender which is a "fund" may at any
time assign or pledge all or any portion of its rights under this Credit
Agreement to secure such Lender's indebtedness, in each case without the prior
written consent of the Borrower or the Agent, provided that each such
assignment shall be made in accordance with applicable law and no such
assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate any such assignment, the Borrower shall, at the request of
and at the expense of the assigning Lender, duly execute a registered
promissory note or notes evidencing the Revolving Loans and other Extensions
of Credit made or extended to the Borrower by the assigning Lender hereunder.
(b) Assignments. Each Lender may assign all or a portion
of its rights and obligations hereunder, pursuant to an assignment agreement
substantially in the form of Schedule 11.3(b), to (i) any Lender or any
Affiliate or Subsidiary of a Lender, or (ii) any other commercial bank,
financial institution, fund which is regularly engaged in making, purchasing or
investing in loans or securities or "accredited investor" (as defined in
Regulation D of the Securities and Exchange Commission) reasonably acceptable
to the Agent (an "Eligible Assignee") and, so long as no Default or Event of
Default has occurred and is continuing, of the Borrower, which consent will not
be unreasonably withheld or delayed; provided that any such assignment (other
than any assignment to an existing Lender) shall be in a minimum aggregate
amount of $5,000,000 (or, if less, the remaining amount of the Commitment being
assigned by such Lender) of the Commitments. Any assignment hereunder shall be
effective upon delivery to the Agent of written notice of the assignment
together with a transfer fee of $3,500 payable by the transferring Lender to
the Agent for its own account from and after the later of (i) the effective
date specified in the applicable assignment agreement and (ii) the date of
recording of such assignment in the Register pursuant to the terms of
subsection (c) below. The assigning Lender will give prompt notice to the Agent
and the Borrower of any such assignment. Upon the effectiveness of any such
assignment (and after notice to, and (to the extent required pursuant to the
terms hereof), with the consent of, the Borrower as provided herein), the
assignee shall become a "Lender" for all purposes of this Credit Agreement and
the other Credit Documents and, to the extent of such assignment, the assigning
Lender shall be relieved of its obligations hereunder to the extent of the
Loans, other Extensions of Credit and Commitment components being assigned.
Along such lines the Borrower agrees that upon notice of any such assignment
and surrender of the appropriate Note or Notes, it will promptly provide to the
assigning Lender and to the assignee (at the assigning Lender's expense)
separate promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with notation thereon that
it is given in substitution for and replacement of the original Note or any
replacement notes thereof). By executing and delivering an assignment agreement
in accordance with this Section 11.3(b), the assigning Lender thereunder and
the assignee thereunder shall be deemed to confirm to and agree with each other
and the other parties hereto as follows: (i) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim; (ii) except as set forth in clause
(i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, any of the other
Credit Documents or any other instrument or document furnished pursuant hereto
or thereto or the financial condition of any Credit Party or any of their
respective Affiliates or the performance or observance by any Credit Party of
any of its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (iv) such assignee confirms
that it has received a copy of this Credit Agreement, the other Credit
Documents and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such assignment
agreement; (v) such assignee will independently and without reliance upon the
Agent, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit Agreement
and the other Credit Documents; (vi) such assignee appoints and authorizes the
Agent to take such action on its behalf and to exercise such powers under this
Credit Agreement or any other Credit Document as are delegated to the Agent by
the terms hereof or thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Credit Agreement and the other Credit Documents are required to be performed by
it as a Lender.
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(c) Maintenance of Register. The Agent shall maintain at
one of its offices in Charlotte, North Carolina a copy of each Lender
assignment agreement delivered to it in accordance with the terms of subsection
(b) above and a register for the recordation of the identity of the principal
amount, type and Interest Period of each Obligation outstanding hereunder, the
names, addresses and the Commitments of the Lenders pursuant to the terms
hereof from time to time (the "Register"). The Agent will make reasonable
efforts to maintain the accuracy of the Register and to promptly update the
Register from time to time, as necessary. The entries in the Register shall be
conclusive in the absence of manifest error and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
each Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Each Lender may sell, transfer,
grant or assign participations in all or any part of such Lender's interests
and obligations hereunder; provided that (i) such selling Lender shall remain a
"Lender" for all purposes under this Credit Agreement (such selling Lender's
obligations under the Credit Documents remaining unchanged) and the participant
shall not constitute a Lender hereunder, (ii) no such participant shall have,
or be granted, rights to approve any amendment or waiver relating to this
Credit Agreement or the other Credit Documents except to the extent any such
amendment or waiver would (A) reduce the principal of or rate of interest on or
Fees in respect of any Loans in which the participant is participating, (B)
postpone the date fixed for scheduled final payment of principal in which the
participant is participating, or (C) except as expressly provided in the Credit
Documents, release all or substantially all of the Guarantors from their
guaranty obligations hereunder, and (iii) sub-participations by the participant
(except to an affiliate, parent Borrower or affiliate of a parent Borrower of
the participant) shall be prohibited without the consent of the Borrower and
the Agent. In the case of any such participation, the participant shall not
have any rights under this Credit Agreement or the other Credit Documents (the
participant's rights against the selling Lender in respect of such
participation to be those set forth in the participation agreement with such
Lender creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such
participation, provided, however, that such participant shall be entitled to
receive additional amounts under Sections 3.6, 3.7, 3.10, 3.11 and 3.12 on the
same basis as if it were a Lender.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Agent or any Lender and any of
the Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the
other Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC, special counsel to the Agent), in each case subject to the
limitations on such costs and expenses previously agreed upon, and any
amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by
the Credit Parties under this Credit Agreement and (B) of the Agent and the
Lenders in connection with enforcement of the Credit Documents and the
documents and instruments referred to therein (including, without limitation,
in connection with any such enforcement, the reasonable fees and disbursements
of counsel for the Agent and each of the Lenders); (ii) pay and hold each of
the Lenders harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any and all liabilities with
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respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iii) indemnify each
Lender, its officers, directors, employees, affiliates, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result
of, or arising out of, or in any way related to, or by reason of (A) any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding or (B) the presence or Release of any Materials
of Environmental Concern at, under or from any Property owned, operated or
leased by the Borrower or any of its Subsidiaries, or the failure by the
Borrower or any of its Subsidiaries to comply with any Environmental Law (but
excluding, in the case of either of clause (A) or (B) above, any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
negligence or misconduct on the part of the Person to be indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any of the other Credit Documents,
nor any of the terms hereof or thereof may be amended, modified, supplemented,
waived or terminated except with the written consent of the Required Lenders
and the Borrower (and the Guarantor directly affected thereby); provided
however that no amendment, modification, supplement, waiver, termination or
release shall
(a) without the consent of each Lender affected thereby:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or Note, or any installment thereon;
(ii) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) on any Loan or fees
hereunder;
(iii) increase the Commitments of such Lender over the
amount thereof in effect;
(iv) except as the result of or in connection with a
dissolution, merger or disposition permitted by Section 8.3(a),
Section 8.3(b) or Section 8.3(c), release all or substantially all of
the Guarantors from their guaranty obligations hereunder;
(v) except in connection with a dissolution, merger or
disposition permitted by Section 8.3(a), Section 8.3(b) or Section
8.3(c), release all or substantially all of the collateral pledged to
secure the Loans and other Extensions of Credit hereunder;
(vi) amend, modify or waive any provision of this Section
11.6 or Section 3.6, 3.7, 3.11, 3.12, 3.13, 3.14, 9.1(a), 11.2, 11.3,
11.5 or 11.9;
(vii) reduce any percentage specified in, or otherwise
modify, the definition of "Required Lenders;" or
(viii) consent to the assignment of its rights and
obligations under (or in respect of) the Credit Documents to which it
is a party; and
(b) No provision of Section 2.2 may be amended without the
consent of the Issuing Lender, no provision of Section 2.3 may be amended
without the consent of the Swingline Lender and no provision of Section 10 may
be amended without the consent of the Agent.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed
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and delivered shall be an original, but all of which shall constitute one and
the same instrument. It shall not be necessary in making proof of this Credit
Agreement to produce or account for more than one such counterpart.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 SURVIVAL.
All indemnities and obligations set forth in Sections 3.10, 3.12, 4.3,
10.7 and 11.5 and all other indemnities set forth herein shall survive the
execution and delivery of this Credit Agreement, the making of the Loans, the
issuance of the Letters of Credit, the repayment of the Loans, LOC Obligations
and other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Credit Parties herein shall survive delivery of the Notes and the Extensions of
Credit hereunder.
11.10 GOVERNING LAW, SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NORTH CAROLINA. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the courts of
the State of North Carolina, or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Credit Agreement,
each of the parties hereto hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of such
courts. Each of the parties hereto further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out notices pursuant to Section 11.1,
such service to become effective 30 days after such mailing. Nothing herein
shall affect the right of the Agent to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against any parties hereto in any other jurisdiction.
(b) Each of the parties hereto hereby irrevocably waives
any objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document brought in the courts
referred to in subsection (a) hereof and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) Each of the Foreign Credit Parties (if any) hereby
appoints the Borrower (or such other persons as may from time to time be
identified to the Agent in writing) as its "New York Service Agent" as its
true and lawful attorney in fact in its name, place and stead to accept
service of any and all writs, summons and other legal process and any such
enforcement proceeding brought in the State of New York and agrees that
service of any enforcement proceeding may be made upon such New York Service
Agent and that it will take such action as necessary to continue such
appointment in full force and effect or to appoint another such agent in the
State of New York for service of process.
11.11 ARBITRATION.
(a) Each Foreign Credit Party agrees that at the
Required Lenders' sole election any controversy or claim arising out of or
relating to this Credit Agreement or any of the Credit Documents, or to the
breach
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or nonperformance thereof, may be settled immediately by submitting
the same to binding arbitration in New York, New York (or such other
place as the parties may agree) in accordance with the Commercial
Arbitration Rules then in effect of the American Arbitration
Association. Upon the request and submission of any controversy or
claim for arbitration hereunder, the Agent shall give the Borrower
not less than 45 days written notice of the request for arbitration,
the nature of the controversy or claim, and the time and place set for
arbitration. Each Foreign Credit Party agrees that such notice is
reasonable to enable Foreign Credit Party sufficient time to prepare
and present its case before the arbitration panel. Judgment on the
award rendered by the arbitration panel may be entered in any court
in which any action could have been brought or maintained pursuant to
Section 11.10 or this Section 11 of this Credit Agreement, including
without limitation any court of the State of New York or any federal
court sitting in New York. The expenses of arbitration shall be paid
as provided by the arbitral panel.
(b) The provisions of subsection (a) hereof are intended
to comply with the requirements of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the "Convention"). To the
extent that any provisions of subsection (a) hereof are not consistent
with or fail to conform to the requirements set out in the Convention,
subsection (a) hereof shall be deemed amended to conform to the
requirements of the Convention.
(c) Each Foreign Credit Party hereby specifically
consents and submits to the jurisdiction of the courts of New York and
courts of the United States located in New York for purposes of entry
of a judgment or arbitration award entered by the arbitration panel.
11.12 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.13 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.14 BINDING EFFECT; REPLACEMENT OF EXISTING LOAN AGREEMENT;
TERMINATION.
(a) This Credit Agreement shall become effective at such
time on or after the Closing Date when it shall have been executed by
the Credit Parties, the Lenders and the Agent, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the
Credit Parties, the Lenders and the Agent and their respective
successors and assigns. Each party hereto hereby agrees that, at such
time as this Credit Agreement shall have become effective pursuant to
the terms of the immediately preceding sentence, (i) the Existing
Credit Agreement automatically shall be deemed amended, restated and
replaced in its entirety by this Credit Agreement, and all obligations
and commitments outstanding under the Existing Credit Agreement shall
be governed by the terms of this Credit Agreement (as such obligations
or commitments may be modified or amended hereunder) and (ii) the
promissory notes executed by the Borrower in connection with the
Existing Credit Agreement automatically shall be substituted and
replaced by the promissory notes executed in connection with this
Credit Agreement. The Credit Parties further agree, upon the request
of the Agent, to promptly take such actions, as reasonably requested,
as are appropriate to carry out the intent of this Credit Agreement
and the other Credit Documents.
(b) The term of this Credit Agreement shall commence on
the effective date pursuant to subsection (a) above and shall continue
until no Loans, Letter of Credit Obligations or any other amounts
payable hereunder or under any of the other Credit Documents shall
remain outstanding and until the Commitments hereunder shall
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have expired or been terminated.
11.15 JUDGMENT CURRENCY.
(a) Each Credit Party's obligations hereunder to make payments in
Dollars (the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Agent or a Lender of
the full amount of the Obligation Currency expressed to be payable to the Agent
or such Lender under this Credit Agreement. If, for the purpose of obtaining or
enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the Dollar Equivalent determined in each case as
of the Business Day immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the "Judgment
Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, such amount payable by the applicable Credit Party shall be
reduced or increased, as applicable, such that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
11.16 CONFIDENTIALITY.
The Agent and the Lenders agree to keep confidential (and to cause
their respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf of any Credit Party
(whether before or after the Closing Date) which relates to the Borrower or any
of its Subsidiaries (the "Information"). Notwithstanding the foregoing, the
Agent and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents and representatives in
connection with its participation in any of the transactions evidenced by this
Credit Agreement or any other Credit Documents or the administration of this
Credit Agreement or any other Credit Documents; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal process, or
requested by any Governmental Authority; (iii) to the extent such Information
(A) becomes publicly available other than as a result of a breach of this
Credit Agreement or any agreement entered into pursuant to clause (iv) below,
(B) becomes available to the Agent or such Lender on a non-confidential basis
from a source other than a Credit Party or (C) was available to the Agent or
such Lender on a non-confidential basis prior to its disclosure to the Agent or
such Lender by a Credit Party; (iv) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first specifically agrees in a writing
furnished to and for the benefit of the Credit Parties to be bound by the terms
of this Section 11.16; or (v) to the extent that the Borrower shall have
consented in writing to such disclosure. Nothing set forth in this Section
11.16 shall obligate the Agent or any Lender to return any materials furnished
by the Credit Parties.
11.17 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower
that at least one of the following statements is an accurate representation as
to the source of funds to be used by such Lender in connection with the
financing hereunder:
(a) no part of such funds constitutes assets allocated
to any separate account maintained by such Lender in which any
employee benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds
constitutes (x) assets allocated to any separate account maintained by
such Lender or (y) assets of an insurance Borrower's general account,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such Extension of Credit
(and, for purposes of this
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subsection (b), all employee benefit plans maintained by the same
employer or employee organization are deemed to be a single plan);
(c) to the extent that any part of such funds
constitutes assets of an insurance Borrower's general account, such
insurance Borrower has complied with regulations issued with respect
to Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
A Lender that is required to make a disclosure to the Borrower under subsection
(b) or (d) shall do so as soon as practicable, but in no event less than 3
Business Days before such funds are used to make an Extension of Credit. As
used in this Section 11.17, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.18 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
11.19 WAIVER OF PAST DEFAULTS UNDER SECTION 8.1(E).
The Lenders hereby waive any Default or Event of Default that may have
existed under the Existing Credit Agreement from the Closing Date referenced
therein to the date hereof solely as a result of the Credit Parties'
non-compliance with Section 8.1(e) of the Existing Credit Agreement. This is a
one-time waiver and shall not be construed to be a waiver (a) as to future
compliance with Section 8.1(e) of this Credit Agreement or (b) any other
Default or Event of Default that may exist hereunder or under the Existing
Credit Agreement.
11.20 RELEASE OF MCQUEEN INTERNATIONAL LIMITED.
The Agent and the Lenders hereby release McQueen International Limited
from its obligations set forth in that certain Guarantor Joinder Agreement
dated as of February 27, 1998.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered as of
the date first above written.
BORROWER: XXXXX ENTERPRISES, INCORPORATED
By:
-------------------------------------------------------
Name:
Title:
GUARANTORS: SHPS, INC.
By:
-------------------------------------------------------
Name:
Title:
XXXXX REALTY, INC.
By:
-------------------------------------------------------
Name:
Title:
XXXXX E-COMMERCE INCORPORATED
By:
-------------------------------------------------------
Name:
Title:
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LENDERS: BANK OF AMERICA, N.A., formerly NationsBank, N.A.,
individually in its capacity as a Lender and in
its capacity as Agent
By:
-------------------------------------------------------
Name:
Title:
SUNTRUST BANK
By:
-------------------------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
-------------------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
-------------------------------------------------------
Name:
Title:
BANK ONE, NA (formerly known as The First National Bank of
Chicago)
By:
-------------------------------------------------------
Name:
Title:
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:
-------------------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
-------------------------------------------------------
Name:
Title:
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