1
EXHIBIT 10.32
CREDIT FACILITIES
AND
REIMBURSEMENT AGREEMENT
by and among
REPUBLIC INDUSTRIES, INC., as Borrower,
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION
THE FIRST NATIONAL BANK OF BOSTON,
THE BANK OF NOVA SCOTIA,
THE FIRST NATIONAL BANK OF CHICAGO,
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
UNITED STATES NATIONAL BANK OF OREGON,
ABN AMRO BANK N.V.,
THE BANK OF NEW YORK,
XXXXXXX BANK OF BROWARD COUNTY, N.A.,
CREDIT LYONNAIS NEW YORK BRANCH
CREDIT LYONNAIS CAYMAN ISLAND BRANCH, and
LTCB TRUST COMPANY,
as Lenders
and
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, as Agent
and
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent
December 19, 1995
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.03 Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.04 Accounting and Financial Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.05 General Provisions Relating to Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE II
The Loans
2.01 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.02 Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.03 Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.04 Payment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.05 Non-Conforming Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.06 Borrower's Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.07 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.08 Pro Rata Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.09 Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.10 Increase and Decrease in Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.11 Conversions and Elections of Subsequent Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.12 Revolving Credit Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.13 Deficiency Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.14 Adjustments by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.15 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.16 Swing Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.17 Additional Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
Letters of Credit
3.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.02 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.03 Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.04 Administrative Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.02 Suspension of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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4.04 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.05 Alternate Loan and Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.06 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE V
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 49
5.02 Conditions of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.03 Supplements to Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VII
Affirmative Covenants
7.01 Financial Reports, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.02 Maintain Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.03 Existence, Qualification, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.04 Regulations and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.05 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.06 True Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.07 Pay Indebtedness to Lenders and Perform Other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.08 Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.09 Observe all Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.10 Covenants Extending to Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.11 Officer's Knowledge of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.12 Suits or Other Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.13 Notice of Discharge of Hazardous Material or Environmental Complaint . . . . . . . . . . . . . . . . . . . . . 62
7.14 Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.15 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.16 Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.17 Continued Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.18 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.19 New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VIII
Negative Covenants
8.01 Indebtedness to Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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8.02 Consolidated Fixed Charge Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.03 Indebtedness to EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.05 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.06 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.07 Investments; Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.08 Merger or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.09 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.10 Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.11 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.12 Dissolution, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.02 Agent to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.03 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.04 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.05 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.06 Allocation of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE X
The Agent
10.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.02 Attorneys-in-fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.03 Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.04 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.06 No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.07 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.08 Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.09 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.10 Sharing of Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.11 One Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.03 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.04 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.05 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.06 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.07 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.08 WAIVERS BY BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
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11.09 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.12 Headings and References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.15 Agreement Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.16 Usury Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.17 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
EXHIBIT A Applicable Commitment Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
EXHIBIT B Form of Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative . . . . . . . . . . . . . . . . . . . 107
EXHIBIT D Form of Borrowing Notice--Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
EXHIBIT E Form of Competitive Bid Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
EXHIBIT F Form of Guaranty Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
EXHIBIT G Permitted Acquisitions Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
EXHIBIT H Form of Revolving Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
EXHIBIT I Interest Rate Selection Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
EXHIBIT J Form of Competitive Bid Quote Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
EXHIBIT K Form of Competitive Bid Quote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
EXHIBIT L-1 Form of Opinion of Borrower's Counsel . . . . . . 145
EXHIBIT F-2 Form of Opinion of Guarantors' Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
EXHIBIT M Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Schedule 1.01 Existing Letters of Credit
Schedule 6.01(d) Subsidiaries and Investments
Schedule 6.01(f) Contingent Liabilities
Schedule 6.01(g) Liens
Schedule 6.01(j) Litigation
Schedule 6.01(p) ERISA Matters
Schedule 6.01(r) Environmental Issues
Schedule 7.05 Existing Insurance
Schedule 8.04 Indebtedness
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CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT, dated as of
December 19, 1995 (the "Agreement"), is made by and among:
REPUBLIC INDUSTRIES, INC., a Delaware corporation having its principal
place of business in Ft. Lauderdale, Florida (the "Borrower"); and
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of
America and having its principal place of business in Miami, Florida
("NationsBank"), THE FIRST NATIONAL BANK OF BOSTON, each other lender signatory
hereto on the Closing Date and each other lender which may hereafter execute
and deliver an instrument of assignment with respect to this Agreement pursuant
to Section 11.01 (hereinafter NationsBank and such other lenders may be
referred to individually as a "Lender" or collectively as the "Lenders"); and
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, in its capacity as agent
for the Lenders (in such capacity, the "Agent"); and
THE FIRST NATIONAL BANK OF BOSTON, in its capacity as co-agent (the
"Co-Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a Revolving Credit Facility, including sublimits for issuance of
letters of credit in amount not exceeding $35,000,000, of up to $250,000,000,
the proceeds of which shall be used to repay certain existing indebtedness of
the Borrower and for general corporate purposes; and
WHEREAS, the Lenders are willing to make available such Revolving
Credit Facility to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders, the Agent and the Co-Agent
hereby agree as follows:
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ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" has the meaning assigned to such term in
Section 2.02(c)(ii)(C) hereof;
"Advance" means a borrowing under (i) the Revolving Credit
Facility, consisting of the aggregate principal amount of a Base Rate
Loan or a Eurodollar Loan, as the case may be or (ii) the Swing Line
consisting of Base Rate Loans or (iii) the Competitive Bid Facility
consisting of Competitive Bid Loans;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with the Borrower; (ii) which beneficially
owns or holds 5% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 5% or more of
the equity interest) of the Borrower; or (iii) 5% or more of any class
of the outstanding voting stock (or in the case of a Person which is
not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, for each Lender with
respect to the Revolving Credit Facility (including its Participations
and its obligations hereunder to NationsBank to acquire
Participations) (each a type of "credit exposure"), a fraction
(expressed as a percentage), (A) the numerator of which shall be the
then amount of such Lender's Revolving Credit Commitment (which
Revolving Credit Commitment for each Lender as of the Effective Date
is as set forth in Exhibit A attached hereto and incorporated herein
by this reference), and (B) the denominator of which shall be,
respectively, the Total Revolving Credit Commitment; provided that
each Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with Section 11.01 hereof and any voluntary or
mandatory reductions in such committed amounts;
"Applicable Margin" means for each Eurodollar Loan the interest
on which is computed by reference to the Eurodollar Rate or Base Rate
Loan, the interest on which is computed by
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reference to the Base Rate, as the case may be, (i) for the period
from the Effective Date through the date of receipt by the Agent of a
Compliance Certificate in respect of the fiscal period of the Borrower
and its Subsidiaries ending December 31, 1995, 5/16% per annum in the
case of a Eurodollar Loan and 0% in the case of a Base Rate Loan, and
(ii) thereafter that percent per annum set forth below, which shall be
(a) determined as of each Determination Date and furnished to the
Agent not later than the time set forth in Section 7.01(a) and (b)
hereof (the "Compliance Date") and (c) applicable from the Compliance
Date until receipt of a Compliance Certificate in respect of a
subsequent fiscal quarter, based upon the ratio of (X) Consolidated
Funded Indebtedness as at the Determination Date to (Y) Consolidated
EBITDA for the Four-Quarter Period of Borrower ended at the
Determination Date, as specified below:
Applicable Margin
-----------------
Funded Indebtedness Eurodollar Base
/EBITDA Ratio Rate Rate
------------------- ---------- ----
a) Equal to or Greater
than 2.50 to 1.00 but
Less than 3.00 to 1.00 7/8% 1/4%
b) Equal to or Greater than
2.00 to 1.00 but Less
than 2.50 to 1.00 3/4% 0%
c) Equal to or Greater than
1.50 to 1.00 but Less
than 2.00 to 1.00 1/2% 0%
d) Less than 1.50 to 1.00 5/16% 0%
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to
NationsBank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance substantially in the form of Exhibit B (with blanks
appropriately filled in) delivered to the Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
Section 11.01;
"Authorized Representative" means any of the Chairman, Vice
Chairmen, President, Executive Vice Presidents or Vice Presidents of
the Borrower and, with respect to financial matters, the Treasurer or
Chief Financial Officer of the
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Borrower or any other person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form attached hereto as Exhibit C;
"Base Rate" means the sum of (a) the greater of (i) the Prime
Rate or (ii) the Federal Funds Effective Rate plus one-half of one
percent (1/2%), each change in such Base Rate to be effective as of
the effective date of any change in the Prime Rate or the Federal
Funds Effective Rate giving rise thereto and (b) the Applicable
Margin;
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrower's Account" means a demand deposit account number
3750682241, or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent;
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving
Credit Facility, in the form attached hereto as Exhibit D;
"Business Day" means any day which is not a Saturday, Sunday
or a day on which banks in the States of Florida, North Carolina and
New York are authorized or obligated by law, executive order or
governmental decree to be closed;
"Capital Expenditures" means for any period the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by the Borrower or any Subsidiary during that
period that are for items that would be classified as "property, plant
or equipment" or comparable items on the consolidated balance sheet of
the Borrower, plus (ii) with respect to any Capital Lease entered into
by the Borrower or its Subsidiaries during such period, the present
value of the lease payments due under such Capital Lease over the term
of such Capital Lease applying a discount rate equal to the interest
rate provided in such lease (or in the absence of a stated interest
rate that rate used in the preparation of the financial statements
described in Section 7.01(a) hereof), all determined in accordance
with Generally Accepted Accounting Principles applied on a Consistent
Basis, excluding, however, the amount of any Capital Expenditures paid
for with proceeds of casualty insurance;
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"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting
Principles as in effect from time to time including Statement No. 13
of the Financial Accounting Standards Board and any successor thereof;
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Competitive Bid Borrowing" has the meaning assigned to such
term in Section 2.02 hereof;
"Competitive Bid Facility" means the facility described in
Section 2.02 hereof providing for Competitive Bid Loans to the
Borrower;
"Competitive Bid Loan Commitment" means the amount which a
Lender has offered to loan to the Borrower pursuant to a Competitive
Bid Quote by such Lender not to exceed in the aggregate fifty percent
(50%) of the Total Revolving Credit Commitment;
"Competitive Bid Loans" means the Loans bearing interest at an
Absolute Rate or a Eurodollar Competitive Rate provided for in Section
2.02 hereof;
"Competitive Bid Notes" means, collectively, the promissory
notes of the Borrower with respect to Competitive Bid Loans provided
for by Section 2.02 hereof executed and delivered to the Lenders as
provided in Section 2.07(c) substantially in the form attached hereto
as Exhibit E and incorporated herein by reference, with appropriate
insertions as to dates and names of Lenders, and all promissory notes
delivered in substitution or exchange therefor, in each case as the
same shall be amended, modified or supplemented and in effect from
time to time;
"Competitive Bid Quote" means an offer in accordance with
Section 2.02 hereof by a Lender to make a Competitive Bid Loan with
one single specified interest rate;
"Competitive Bid Quote Request" has the meaning assigned to
such term in Section 2.02 hereof;
"Compliance Certificate" means a certificate in the form of
Exhibit M furnished to the Agent and Lenders by the Borrower pursuant
to Section 7.01 hereof;
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"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in Section 6.01(f)(i)
hereof;
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period of computation thereof during such
period, the sum of, without duplication, (i) Consolidated Net Income,
plus (ii) Consolidated Interest Expense during such period, plus (iii)
taxes on income during such period, plus (iv) amortization during such
period, plus (v) depreciation during such period, determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; provided, however, that with
respect to any Permitted Acquisition which is accounted for as a
"purchase", for the Four-Quarter Period following such acquisition,
the Consolidated EBITDA shall include the results of operations of
the Person or assets so acquired which amounts shall be determined
on an historical pro forma basis in form and substance satisfactory
to the Agent so long as the Borrower has furnished to the Agent
financial information acceptable to the Agent with respect to the
Person or assets which are the subject of such Permitted Acquisition;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the ratio of (a) Consolidated EBITDA
minus dividends of the Borrower and Capital Expenditures of the
Borrower and its Subsidiaries to (b) Consolidated Interest Expense;
"Consolidated Funded Indebtedness" means Funded Indebtedness
of the Borrower and its Subsidiaries, determined on a consolidated
basis;
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including, without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of Indebtedness
to the extent included in interest expense and (iii) the portion of
any liabilities incurred in connection with Capital Leases allocable
to interest expense, all determined on a consolidated basis in
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accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries, less all operating and non-operating expenses of the
Borrower and its Subsidiaries including taxes on income, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; but
excluding all non-cash, non-recurring and extraordinary gains or
losses, all as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Shareholders' Equity" means at any time as of
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding intercompany items among the Borrower
and its Subsidiaries and any upward adjustment after the Effective
Date due to revaluation of assets): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of additional paid-in
capital and retained income (or, in the case of a deficit, minus the
amount of such deficit), minus (iii) the amount of any foreign
currency translation adjustment which is included in the equity
section of the consolidated balance sheet (whether positive or
negative) minus (iv) the absolute value of any treasury stock and the
absolute value of any stock subscription receivables, as determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Total Assets" means assets of the Borrower and
its Subsidiaries as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Total Capitalization" means, as at any time as
of which the amount thereof is to be determined, the sum of
Consolidated Funded Indebtedness plus Consolidated Shareholders'
Equity;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the consolidated
financial statements (including footnotes) of such Person in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner,
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whether directly or indirectly, including obligations of such Person
however incurred:
(1) to purchase such Indebtedness or other
obligation or any property or assets constituting security
therefor;
(2) to advance or supply funds in any manner (i)
for the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security
interest, pledge, charge or other encumbrance on any property
or assets of such Person to secure payment of such
Indebtedness or other obligation;
(4) to lease property or to purchase securities
or other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the
Indebtedness or such obligation of the primary obligor against
loss in respect thereof;
with respect to Contingent Obligations (such as litigation, guarantees
and pension plan liabilities), such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can
reasonably be expected to become an actual or matured liability;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Determination Date" means the last day of each fiscal
quarterly period of the Borrower.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United
States of America;
"Effective Date" means the date all of the conditions set
forth in Section 5.01 have been satisfied;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Required
Lenders:
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(a) Government Securities;
(b) the following debt securities of the
following agencies or instrumentalities of the United States
of America if at all times the full faith and credit of the
United States of America is pledged to the full and timely
payment of all interest and principal thereof:
(i) all direct or fully guaranteed obligations
of the United States Treasury; and
(ii) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
(c) the following obligations of the following
agencies or instrumentalities of the United States of America:
(i) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(ii) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage
Association which have not had the interest portion
thereof severed therefrom;
(d) obligations of any corporation organized
under the laws of any state of the United States of America or
under the laws of any other nation, payable in the United
States of America, expressed to mature not later than 92 days
following the date of issuance thereof and rated in an
investment grade rating category by S&P and Xxxxx'x;
(e) interest bearing demand or time deposits
issued by NationsBank or certificates of deposit maturing
within one year from the date of acquisition issued by a bank
or trust company organized under the laws of the United States
or of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated A-3
or better by S&P or A or better by Moody's;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
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(h) shares of mutual funds which invest in
obligations described in paragraphs (a) through (g) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Moody's.
Obligations listed in paragraphs (a), (b) and (c) above which
are in book-entry form must be held in a trust account with the
Federal Reserve Bank or with a clearing corporation or chain of
clearing corporations which has an account with the Federal Reserve
Bank;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as amended, any other "Superfund" or "Superlien" law or any other
applicable statute, law, ordinance, code, rule, regulation, order or
decree, of the United States or any foreign nation or any province,
territory, state, protectorate or other political subdivision thereof,
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or
material;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Euro Business Day" means a Business Day on which the relevant
international financial markets are open for the transaction of the
business contemplated by this Agreement in London, England and New
York, New York;
"Eurodollar Competitive Rate" means, for the Interest Period
for any Competitive Bid Rate Loan at a Eurodollar Competitive Rate,
the rate of interest per annum determined pursuant to the following
formula:
Interbank Offered Rate
Eurodollar ----------------------
Competitive = 1-Eurodollar Reserve + or - a Margin
Rate Percentage
"Eurodollar Loan" means a Loan for which the rate of interest
is determined by reference to the Eurodollar Rate;
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from
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time to time under Regulation D 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
Eurodollar Loans or Competitive Bid Loans at the Eurodollar
Competitive Rate is determined), whether or not any Lender has any
Eurocurrency liabilities subject to such requirements without benefits
of credits or proration, exceptions or offsets that may be available
from time to time to any Lender. The Eurodollar Revolver Rate and the
Eurodollar Competitive Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Eurodollar Revolver Rate" means, for the Interest Period for
any Eurodollar Loan, the rate of interest per annum determined
pursuant to the following formula:
Eurodollar Interbank Offered Rate Applicable
Revolver = --------------------------------- + Margin
Rate 1 - Eurodollar Reserve Percentage
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof;
"Existing Letters of Credit" means those Letters of Credit
issued by the Co-Agent and/or NationsBank of South Carolina, N.A.
which are outstanding on the Closing Date and described in Schedule
1.01 attached hereto;
"Facility Fee" means (i) from the Effective Date through the
receipt by the Agent of a Compliance Certificate in respect of the
Borrower and its Subsidiaries ending on December 31, 1995, 3/16% per
annum times the Total Revolving Credit Commitment, and (ii) thereafter
for each period beginning on the date of receipt by the Agent of a
Compliance Certificate in respect of any quarterly fiscal period of
the Borrower and its Subsidiaries ending on or after December 31, 1995
and ending on the date next following receipt by the Agent of a
Compliance Certificate in respect of a subsequent fiscal quarter, that
percent per annum set forth below opposite the ratio of (x)
Consolidated Funded Indebtedness to (y) Consolidated EBITDA for the
Four-Quarter Period ended at the Determination Date times the Total
Revolving Credit Commitment:
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Funded Indebtedness Facility
to EBITDA Fee
------------------- --------
(a) Equal to or Greater than 2.50
to 1.00 but Less than 3.00 to
1.00 3/8%
(b) Equal to or Greater than 2.00
to 1.00 but Less than 2.50 to
1.00 1/4%
(c) Equal to or Greater than 1.50
to 1.00 but Less than 2.00 to
1.00 1/4%
(d) Less than 1.50 to 1.00 3/16%
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the "Federal Funds
Effective Rate" for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced;
"Fiscal Year" means the period of the Borrower beginning on
the first day of January of each calendar year and ending on December
31 of such calendar year;
"Four-Quarter Period" means a period of four full consecutive
quarterly periods, taken together as one accounting period;
"Funded Indebtedness" means all indebtedness in respect of
money borrowed, including without limitation all Capital Leases and
the deferred purchase price of any property or asset, evidenced by a
promissory note, bond or similar written obligation for the payment of
money (including, but not limited to, conditional sales or similar
title retention agreements) and undrawn amounts of letters of credit;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other
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substantial authoritative support and are applicable in the
circumstances as of the date of a report, as such principles are from
time to time supplemented and amended;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the
United States, the United States or foreign nation, state, province or
other governmental instrumentality;
"Guarantors" means, collectively, (i) all Material
Subsidiaries and (ii) any other Person who shall become a Material
Subsidiary after the Closing Date and shall execute and deliver to the
Agent a Guaranty as provided in Section 7.19 hereof;
"Guaranty" means each Guaranty and Suretyship Agreement of a
Guarantor (whether delivered individually or jointly and severally
with other Guarantors) in favor of the Agent in the form of Exhibit F
guaranteeing in whole or in part the payment of Obligations, as the
same may be amended, modified or supplemented;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Funded Indebtedness, all indebtedness of such Person
for the acquisition of property, all indebtedness secured by any Lien
on the property of such Person whether or not such indebtedness is
assumed, all liability of such Person by way of endorsements (other
than for collection or deposit in the ordinary course of business),
all Contingent Obligations and other items which in accordance with
Generally Accepted Accounting Principles is classified as a liability
on a balance sheet; but excluding all accounts payable and accruals,
in each case in the ordinary course of business and only so long as
payment therefor is due within one year; provided that in no event
shall the term Indebtedness include partners' capital, surplus and
retained earnings, minority interest in Subsidiaries, lease
obligations (other than pursuant to Capital Leases), reserves for
deferred income
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taxes and investment credits, other deferred credits and reserves, and
deferred compensation obligations;
"Interbank Offered Rate" means, with respect to any Eurodollar
Loan or any Competitive Bid Loan at a Eurodollar Competitive Rate, for
the Interest Period applicable thereto, the average (rounded upward to
the nearest one-sixteenth (1/16th) of one percent) per annum rate of
interest determined by the office of the Agent or, in the case of a
Competitive Bid Loan, any Lender, then determining such rate (each
such determination to be conclusive and binding) as of two Euro
Business Days prior to the first day of such Interest Period, as the
effective rate at which deposits in immediately available funds in
Dollars are being, have been, or would be offered or quoted by the
Agent or such Lender to major banks in the applicable interbank market
for Eurodollar deposits at any time selected by the Agent during the
Euro Business Day which is the second Euro Business Day immediately
preceding the first day of such Interest Period, for a term comparable
to such Interest Period and in the amount of the Eurodollar Loan or
Competitive Bid Loan at the Eurodollar Competitive Rate. If no such
offers or quotes are generally available for such amount, the Agent or
such Lender shall be entitled to determine the Eurodollar Rate by
estimating in its reasonable judgment the per annum rate (as described
above) that would be applicable if such quote or offers were generally
available;
"Interest Period" (a) for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at the
Borrower's option, on the date one, two, three or six months
thereafter as notified to the Agent by the Authorized Representative
three (3) Euro Business Days prior to the beginning of such Interest
Period; provided, that,
(i) if the Authorized Representative fails to
notify the Agent of the length of an Interest Period three (3)
Euro Business Days prior to the first day of such Interest
Period, the Loan for which such Interest Period was to be
determined shall be deemed to be a Base Rate Loan bearing
interest at the Base Rate, as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Loan
would end on a day which is not a Euro Business Day such
Interest Period shall be extended to the next Euro Business
Day (unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case
such Interest Period shall end on the next preceding Euro
Business Day); and
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(iii) on any day, with respect to all Revolving
Credit Loans there shall not be more than ten (10) Interest
Periods in effect on any day;
(b) for each Competitive Bid Loan at an Absolute Rate
means the period commencing on the date of such Loan and ending on
such date as may be mutually agreed upon by the Borrower and the
Lender or Lenders making such Competitive Bid Loan or Loans, as the
case may be, comprising such Competitive Bid Loan; provided that no
Interest Period for a Competitive Bid Loan at an Absolute Rate shall
be for a period of not less than seven nor greater than 90 days;
(c) for each Competitive Bid Loan at a Eurodollar
Competitive Rate means the period commencing on the date such
Competitive Bid Loan is made and ending, at the Borrower's option, on
the date one, two, three or six months thereafter as notified by the
Borrower to such Lender by the Authorized Representative three (3)
Euro Business Days prior to the beginning of such Interest Period
provided that if an Interest Period for such Loan would end on a day
which is not a Euro Business Day, such Interest Period shall be
extended to the next Euro Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end in the next
preceding Euro Business Day).
"Issuing Bank" or "Issuing Banks" means any of NationsBank
and, in the case of the Existing Letters of Credit only, The First
National Bank of Boston or NationsBank of South Carolina, N.A., as
issuers of Letters of Credit;
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended or
modified from time to time;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of
an affiliate of such Lender) as such Lender may from time to time
specify to the Authorized Representative and the Agent as the office
by which its Loans are to be made and maintained;
"Letter of Credit" means (i) a standby letter of credit issued
by NationsBank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower
and (ii) each of the Existing Letters of Credit;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Letter of Credit
Participations up to an aggregate stated amount at any
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one time outstanding equal to such Lender's Applicable Commitment
Percentage of the Total Letter of Credit Commitment as the same may be
increased or decreased from time to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by NationsBank for the
account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of
Credit Commitment;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Revolving Credit Loans or
Swing Line Loans or Competitive Bid Loans;
"Loan Documents" means this Agreement, the Notes, the
Guaranties, Applications and Agreements for Letters of Credit, the LC
Account Agreement and all other instruments and documents heretofore
or hereafter executed or delivered to and in favor of any Lender or
the Agent in connection with the Loans or the Letters of Credit made,
issued or created under this Agreement as the same may be amended,
modified or supplemented from time to time;
"Material Subsidiary" means any Subsidiary which either (i)
has assets having a book value equal to or greater than ten percent
(10%) of the Consolidated Total Assets, or (ii) has net income equal
to or greater than 10% of the Consolidated Net Income. Borrower and
Guarantors will at all times have aggregate assets and net income
which equal not less than 80% of Consolidated Total Assets and
Consolidated Net Income, respectively;
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in
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Section 4001(b) of ERISA, which is also a multi-employer plan as
defined in Section 4001(a)(3) of ERISA;
"Notes" means, collectively, the Revolving Credit Notes, the
Swing Line Note and the Competitive Bid Notes which are to be
delivered to the Lenders;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the
Reimbursement Obligations, (iii) all liabilities of Borrower to any
Lender which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders or the Agent hereunder, under any one or
more of the other Loan Documents or with respect to the Loans;
"Quotation Date" has the meaning assigned to such term in
Section 2.02 hereof;
"Outstanding Credit Obligations" means the sum of (i) the
Revolving Credit Debit Balance, (ii) Outstanding Letters of Credit,
(iii) Swing Line Outstanding and (iv) outstanding Competitive Bid
Loans, all as at the date of determination;
"Outstanding Letters of Credit" means all undrawn amounts of
Letters of Credit plus Reimbursement Obligations;
"Participation" means, with respect to any Lender (other than
NationsBank or the Co-Agent, as the case may be), the extension of
credit represented by the participation of such Lender hereunder in
the liability of NationsBank in respect of a Swing Line Loan made or
Letter of Credit issued by NationsBank in accordance with the terms
hereof or the liability of the Co-Agent in respect of Existing Letters
of Credit;
"Permitted Acquisition" means an acquisition of a Person or
the assets of a Person effected with the consent and approval of the
Board of Directors or other applicable governing body of such Person
and the duly obtained approval of such shareholders or other holders
of equity interests in such Person as may be required to be obtained
under applicable law, the charter documents of or any shareholder
agreements or similar agreements pertaining to such Person, which
Person derives the majority of its revenues from service or service
related activities or engages in other business or owns other assets
which support or compliment these service revenues, provided that (i)
after giving effect to such acquisition no Default or Event of Default
exists hereunder and (ii) after giving effect to such acquisition if
the Person or assets so acquired shall either be a Material Subsidiary
or owned by a
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Material Subsidiary, such Subsidiary shall have complied in all
respects with Section 7.19;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably
called for redemption and advance refunded through the deposit in
escrow of Government Securities or other debt securities which are (i)
not callable at the option of the issuer thereof prior to maturity,
(ii) irrevocably pledged solely to the payment of all principal and
interest on such obligations as the same becomes due and (iii) in a
principal amount and bear such rate or rates of interest as shall be
sufficient to pay in full all principal of, interest, and premium, if
any, on such obligations as the same becomes due as verified by a
nationally recognized firm of certified public accountants;
"Prime Rate" means the rate of interest per annum announced
publicly by the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest
offered by the Agent;
"Principal Office" means the office of the Agent at
Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Corporate Loan Support or such other office and address as the Agent
may from time to time designate;
"Rate Hedging Obligations" means any and all obligations of
the Borrower, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate "swap" agreements;
and (b) any and all cancellations, buybacks, reversals, terminations
or assignments of any of the foregoing;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
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"Regulatory Change" means any change effective after the
Effective Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including with respect to "highly leveraged transactions," whether or
not having the force of law, whether or not failure to comply
therewith would be unlawful (but if not unlawful, noncompliance with
which would have the effect in the good faith judgment of the affected
Lender of imposing additional administrative or regulatory burdens or
consequences, costs or other adverse effects on such Lenders) and, to
the knowledge of the affected Lender, not published or proposed prior
to the date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing
Bank of proceeds of Loans pursuant to Section 3.02) for amounts
theretofore paid by the Issuing Bank or the Lenders pursuant to a
drawing under such Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit
Exposure" of each Lender shall be equal at all times (a) other than
following the occurrence and during the continuance of an Event of
Default, to its Revolving Credit Commitment, and (b) following the
occurrence and during the continuance of an Event of Default, to the
aggregate principal amount of the Revolving Credit Loans and
Competitive Bid Loans owing to such Lender plus the aggregate
unutilized amounts of such Lender's Revolving Credit Commitment plus
the amount of such Lender's Applicable Commitment Percentage of Swing
Line Loans and Outstanding Letters of Credit and of the Reimbursement
Obligations; provided that, if any Lender shall have failed to pay to
NationsBank its Applicable Commitment Percentage of any Swing Line Loan
or drawing under any Letter of Credit resulting in
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an outstanding Reimbursement Obligation, such Lender's Credit Exposure
attributable to Swing Line Loans, Letters of Credit, Reimbursement
Obligations and the Letter of Credit Commitment shall be deemed to be
held by NationsBank for purposes of this definition;
"Revolving Credit Advance Account" means an account on the
books of the Agent in which
(i) each Advance by the Agent pursuant to Section
2.01(a) shall be debited thereto by recording therein on the
date of such Advance a debit entry in the amount of such
Advance; and
(ii) each payment made to the Agent for credit to
the Revolving Credit Advance Account shall be credited thereto
by recording therein on the date paid to the Agent a credit
entry in the amount of such payment;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Loans to the Borrower
and purchase Participations up to an aggregate principal amount at any
one time outstanding equal to such Lender's percentage as set forth on
Exhibit A attached hereto of the Total Revolving Credit Commitment as
the same may be increased or decreased from time to time pursuant to
this Agreement;
"Revolving Credit Debit Balance" means an amount equal to the
excess, if any, of all debit entries over all credit entries recorded
in the Revolving Credit Advance Account of the Agent up to and
including the date of computation;
"Revolving Credit Facility" means the facility described in
Section 2.01(a) hereof providing for Loans to the Borrower by the
Lenders in the aggregate principal amount of the Total Revolving
Credit Commitment less the aggregate amount of Swing Line Outstanding
and Outstanding Letters of Credit and outstanding Competitive Bid
Loans;
"Revolving Credit Loan" means a Loan made pursuant to the
Revolving Credit Facility;
"Revolving Credit Notes" means, collectively, the promissory
notes of the Borrower evidencing Loans executed and delivered to the
Lenders as provided in Section 2.07(a) hereof substantially in the
form attached hereto as Exhibit H, with appropriate insertions as to
amounts, dates and names of Lenders;
"Revolving Credit Termination Date" means (i) December 19,
1998 or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.01 upon the occurrence of an
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Event of Default, or (iii) such date as the Borrower may voluntarily
permanently terminate the Revolving Credit Facility and the
Competitive Bid Facility by payment in full of all Obligations
(including the discharge of all Obligations of NationsBank and the
Lenders with respect to Letters of Credit and Participations and
Competitive Bid Loans);
"S&P" means Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc.;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries;
"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between the Borrower and another
Person, on terms mutually acceptable to such Borrower and such Person,
which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.16;
"Swing Line Loans" means Loans made by NationsBank to Borrower
pursuant to Section 2.16;
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.07(c) hereof as the same
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shall be amended, modified or supplemented and in effect from time to
time;
"Swing Line Outstanding" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower on all
Swing Line Loans then outstanding;
"Total Letter of Credit Commitment" means an amount not to
exceed $35,000,000;
"Total Revolving Credit Commitment" means an amount not to
exceed $250,000,000, as reduced from time to time in accordance with
Section 2.09 and Section 2.10, which shall be made available by the
Lenders to the Borrower during the period from the date hereof until
the Revolving Credit Termination Date.
1.02 Use of Defined Terms. Terms for which meanings are provided in
this Agreement shall, unless otherwise defined or the context otherwise
requires, have such meanings when used in the Notes, each Borrowing Notice,
each Compliance Certificate, each Loan Document and each notice and other
communication delivered from time to time in connection with this Agreement or
any instrument hereafter executed pursuant hereto.
1.03 Cross References. Unless otherwise specified, references in
this Agreement and in each Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such Loan Document,
as the case may be, and, unless otherwise specified, references in any Article,
Section or definition to any clause are references to such clause of such
Section, Article or definition.
1.04 Accounting and Financial Determinations. Where the character
or amount of any asset or liability or item of income or expense is required to
be determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable, be made in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis except insofar as:
(a) the Borrower shall have elected (with the concurrence
of its independent public accountant and upon prior written
notification to the Lenders) to adopt more recently promulgated
Generally Accepted Accounting Principles (which election shall
continue to be effective for subsequent years); and
(b) the Agent and the Required Lenders shall have
consented to such election (it being understood that such consent may
be conditioned upon the implementation of such changes to Sections
8.01 through 8.03 as are appropriate to
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reflect such adoption of more recently promulgated Generally Accepted
Accounting Principles and it being further understood that such
consent shall be deemed to have been given upon the implementation of
such changes).
1.05 General Provisions Relating to Definitions. Terms for which
meanings are defined in this Agreement shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The term "including" means including, without limiting the generality of any
description preceding such term. Each reference herein to any Person shall
include a reference to such Person's successors and assigns. References to any
instrument defined in this Agreement refer to such instrument as originally
executed or, if subsequently varied, replaced or supplemented from time to
time, as so varied, replaced or supplemented and in effect at the relevant time
of reference thereto.
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ARTICLE II
The Loans
2.01 Commitments
(a) Revolving Credit Commitment. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Advances to the
Borrower, from time to time from the Effective Date until the Revolving Credit
Termination Date on a pro rata basis as to the total borrowing requested by the
Borrower under the Revolving Credit Facility on any day determined by its
Applicable Commitment Percentage of the Total Revolving Credit Commitment up to
but not exceeding the Revolving Credit Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no obligation to
make any Advance (i) so long as a Default or an Event of Default has occurred
and is continuing or (ii) if the Agent has accelerated the maturity of the
Revolving Credit Notes as a result of an Event of Default; provided further,
however, that immediately after giving effect to each such Advance, the
principal amount of Outstanding Credit Obligations shall not exceed the Total
Revolving Credit Commitment. Within such limits, the Borrower may borrow,
repay and reborrow hereunder, on a Business Day in the case of a Base Rate Loan
and on a Euro Business Day in the case of a Eurodollar Loan, from the Effective
Date until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date; provided, however, that (x) no Eurodollar
Loan that is a Revolving Credit Loan shall be made which has an Interest Period
that extends beyond the Revolving Credit Termination Date and (y) each
Eurodollar Loan may, subject to the provisions of Section 2.11, be repaid only
on the last day of the Interest Period with respect thereto.
(b) Amounts. Except as otherwise permitted by the Lenders from time
to time, the aggregate unpaid principal amount of the Outstanding Credit
Obligations shall not exceed at any time an amount equal to the Total Revolving
Credit Commitment. Each Loan under the Revolving Credit Facility (except as
provided in Section 2.16 hereof as to Swing Line Loans) and each conversion
(under any of the Revolving Credit Facility) under Section 2.11 shall be in a
principal amount of at least $1,000,000, and, if greater than $1,000,000, an
integral multiple of $100,000.
(c) Advances and Rate Selection. (i) An Authorized Representative
shall give the Agent (1) at least three (3) Euro Business Days' irrevocable
telephonic notice of each Eurodollar Loan (whether representing an additional
borrowing hereunder or the conversion of borrowing hereunder from Base Rate
Loans or other Eurodollar Loans to Eurodollar Loans) prior to 10:30 A.M.,
Charlotte, North Carolina time; and (2) irrevocable telephonic notice of each
Base Rate Loan representing an additional borrowing hereunder prior to 10:30
A.M. Charlotte, North Carolina time on the day of such proposed Base Rate Loan.
Each such Borrowing Notice,
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which shall be effective upon receipt by the Agent, shall specify the amount of
the borrowing, the type (Base or Eurodollar) of Loan, the date of borrowing
and, if a Eurodollar Loan, the Interest Period to be used in the computation of
interest. The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice on the same day by telefacsimile
transmission in the form of a Borrowing Notice, for additional Advances, or in
the form attached hereto as Exhibit I as to selection or conversion of interest
rates as to outstanding Loans, in each case with appropriate insertions, but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. The duration of the initial Interest Period for each Loan
that is a Eurodollar Loan shall be as specified in the initial Borrowing
Notice. The Borrower shall have the option to elect the duration of subsequent
Interest Periods and to convert the Loans (other than Swing Line Loans) in
accordance with Section 2.11 hereof. If the Agent does not receive a notice of
election of duration of an Interest Period or to convert by the time prescribed
hereby and by Section 2.11 hereof, the Borrower shall be deemed to have elected
as to any Revolving Credit Loan, to convert such Loan to (or continue such Loan
as) a Base Rate Loan bearing interest at the Base Rate until the Borrower
notifies the Agent in accordance herewith and with this Section and Section
2.11.
(ii) Notice of receipt of each Borrowing Notice shall be provided
by the Agent to each Lender by telefacsimile with reasonable promptness, but
not later than 1:00 P.M., Charlotte, North Carolina time on the same day as
Agent's receipt of such notice. The Agent shall provide each Lender written
notice of such telephonic confirmation by telefacsimile transmission but
failure to provide such notice shall not affect the validity of such telephonic
notice.
(iii) Not later than 2:00 P.M., Charlotte, North Carolina time on the
date specified for each Advance, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Loan or
Loans to be made by it on such day available to the Agent, by depositing or
transferring the proceeds thereof in immediately available funds at the
Principal Office. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Borrower by
delivery of the proceeds thereof to the Borrower's Account or otherwise as
shall be directed in the applicable Borrowing Notice by the Authorized
Representative.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit prior to the Revolving Credit Termination Date which is not
immediately repaid by the Borrower to the Issuing Bank, the Issuing Bank shall
be paid by the Agent without the requirement of notice from the Borrower from
immediately available funds which shall be advanced by NationsBank under the
Swing Line (provided that a Swing Line Loan shall then be available). If a
drawing is presented under any Letter of Credit
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in accordance with the terms thereof and if a Swing Line Loan in the amount of
such draw shall not be available and Borrower shall not immediately reimburse
the Issuing Bank for the amount of such draw or payment, then notice of such
drawing or payment shall be provided promptly by the Issuing Bank to the Agent
and the Agent shall provide notice to each Lender by telephone. If notice to
the Lenders of a drawing under any Letter of Credit is given by the Agent at or
before 12:00 noon Charlotte, North Carolina time on any Business Day, the
Borrower shall be deemed to have requested, and each Lender shall, pursuant to
the conditions of this Agreement, make a Base Rate Loan under the Revolving
Credit Facility in the amount of such Lender's Applicable Commitment Percentage
of such drawing or payment and shall pay such amount to the Agent for the
account of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. Charlotte, North Carolina time on
the same Business Day. If notice to the Lenders is given by the Agent after
12:00 noon Charlotte, North Carolina time on any Business Day, the Borrower
shall be deemed to have requested, and each Lender shall, pursuant to the terms
and subject to the conditions of this Agreement, make a Base Rate Loan under
the Revolving Credit Facility in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount to
the Agent for the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 12:00 noon Charlotte, North
Carolina time on the next following Business Day. Such Base Rate Loan shall
continue unless and until the Borrower converts such Base Rate Loan in
accordance with the terms of Section 2.11 hereof.
2.02 Competitive Bid Loans.
(a) In addition to Revolving Credit Loans, at any time
prior to the Revolving Credit Termination Date and provided no Default or Event
of Default exists hereunder, the Borrower may, as set forth in this Section
2.02, request the Lenders to make offers to make Competitive Bid Loans to the
Borrower in Dollars. The Lenders may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.02. There may be no more
than ten (10) different Interest Periods for both Revolving Credit Loans and
Competitive Bid Loans outstanding at the same time (for which purpose Interest
Periods for each Eurodollar Loan and each Competitive Bid Loan shall be deemed
to be different Interest Periods even if they are coterminous). The aggregate
principal amount of all outstanding Competitive Bid Loans, together with the
sum of all other Outstanding Credit Obligations, shall not exceed the Total
Revolving Credit Commitment at any time. The aggregate principal amount of all
outstanding Competitive Bid Loans shall not exceed fifty percent (50%) of the
Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make
Competitive Bid Loans, it shall give the Agent and the Lenders
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notice (a "Competitive Bid Quote Request") to be received no later than 11:00
a.m. Charlotte, North Carolina time on (A) the fourth Business Day prior to the
date of borrowing proposed therein, in the case of a Competitive Bid Quote
Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute
Rate (or, in any such case, such other time and date as the Borrower and the
Agent, with the consent of the Required Lenders, may agree). The Borrower may
request offers to make Competitive Bid Loans for up to three (3) different
Interest Periods in a single notice; provided that the request for each
separate Interest Period shall be deemed to be a separate Competitive Bid Quote
Request for a separate borrowing (a "Competitive Bid Borrowing") and there
shall not be outstanding at any one time more than six (6) Competitive Bid
Borrowings. Each such Competitive Bid Quote Request shall be substantially in
the form of Exhibit J attached hereto and incorporated herein by reference and
shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be
a Business Day;
(ii) the aggregate amount of such Competitive Bid
Borrowing, which shall be at least $1,000,000 (or in increments of
$1,000,000 in excess thereof) but shall not cause the limits specified
in Section 2.02(a) hereof to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Competitive Bid Quote Request for a
particular Interest Period is seeking quotes for Competitive Bid
Loans at the Absolute Rate or the Eurodollar Competitive Rate; and
(v) the date on which the Competitive Bid Quotes are to
be submitted if it is before the proposed date of borrowing (the date
on which such Competitive Bid Quotes are to be submitted is called the
"Quotation Date").
Except as otherwise provided in this Section 2.02(b), no more than two (2)
Competitive Bid Quote Requests shall be given within five (5) Business Days (or
such other number of days as the Borrower and the Agent, with the consent of
the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more
Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan
in response to any Competitive Bid Quote Request; provided that, if the
Borrower's request under Section 2.02(b) hereof specified more than one
Interest Period, such Lender may make a single submission
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containing one or more Competitive Bid Quotes for each such Interest Period.
Each Competitive Bid Quote must be submitted to the Borrower not later than
9:30 a.m. Charlotte, North Carolina time on (A) the third Business Day prior to
the proposed date of borrowing, in the case of a Competitive Bid Quote Request
for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Quotation Date, in the case of a Competitive Bid Quote Request for Competitive
Bid Loans at the Absolute Rate (or, in any such case, such other time and date
as the Borrower and the Agent, with the consent of the Required Lenders, may
agree) provided that if NationsBank is receiving quotes as provided in Section
2.02(g), any Competitive Bid Quote may be submitted by NationsBank (or its
applicable Lending Office) only if NationsBank (or such applicable Lending
Office) notifies the Borrower of the terms of the offer contained therein not
later than 9:15 a.m. Charlotte, North Carolina time on the Quotation Date.
Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made
shall be irrevocable except with the consent of the Agent given on the
instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be
substantially in the form of Exhibit K attached hereto and incorporated herein
by reference and shall specify:
(A) the proposed date of borrowing and
the Interest Period therefor;
(B) the principal amount of the
Competitive Bid Loan for which each such offer is being made,
which principal amount shall be at least $1,000,000 (or in
increments of $100,000 in excess thereof); provided that the
aggregate principal amount of all Competitive Bid Loans for
which a Lender submits Competitive Bid Quotes may not exceed
the principal amount of the Competitive Bid Borrowing for a
particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid
Quote for Competitive Bid Loans at an Absolute Rate, the rate
of interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Competitive
Bid Loan (the "Absolute Rate");
(D) in the case of a Competitive Bid
Quote for Competitive Bid Loans at the Eurodollar Competitive
Rate, the Eurodollar Competitive Rate; and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote
shall contain qualifying, conditional or similar language or propose terms
other than or in addition to those set forth in the applicable Competitive Bid
Quote Request
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and, in particular, no Competitive Bid Quote may be conditioned upon acceptance
by the Borrower of all (or some specified minimum) of the principal amount of
the Competitive Bid Loan for which such Competitive Bid Quote is being made.
Any subsequent Competitive Bid Quote submitted by a Lender that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid Quote Request
shall be disregarded by the Borrower unless such subsequent Competitive Bid
Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote.
(d) The Borrower shall (A) in the case of a Competetive
Bid Loan at an Absolute Rate, as promptly as practicable after the Competitive
Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte,
North Carolina time on the Quotation Date (or such other time and date as the
Borrower and the Agent, with the consent of the Required Lenders, may agree) or
(B) in the case of a Competitive Bid Loan at a Eurodollar Competitive Rate, the
third Business Day prior to the proposed date of borrowing), notify the Agent
and Lenders of (A) the aggregate principal amount of the Competitive Bid
Borrowing for which Competitive Bid Quotes have been received as well as the
ranges of bids submitted for each Interest Period requested, (B) the respective
principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the
case may be, so offered by each Lender (identifying the Lender that made each
Competitive Bid Quote), and (C) its acceptance or nonacceptance of the
Competitive Bid Quotes and the Borrower shall promptly notify each affected
Lender. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in part (provided
that any Competitive Bid Quote accepted in part shall be at least $1,000,000 or
in increments of $100,000 in excess thereof); provided that:
(i) the aggregate principal amount of each
Competitive Bid Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive
Bid Borrowing shall be at least $5,000,000 (or an increment of
$1,000,000 in excess thereof) but shall not cause the limits specified
in Section 2.02(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive
Bid Quotes for any Interest Period may be made only in ascending order
of Absolute Rates or Eurodollar Competitive Rates, as the case may be,
beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid
Quote where such Competitive Bid Quote fails to comply with Section
2.02(c)(ii) hereof or otherwise fails to comply with
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the requirements of this Agreement (including, without limitation,
Section 2.02(a) hereof).
Any of the conditions above notwithstanding, the Borrower may, in its sole
discretion, accept a Competitive Bid Quote that does not contain the lowest
Absolute Rate or Eurodollar Competitive Rates, as the case may be, where
acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or
Eurodollar Competitive Rate, as the case may be, would cause the Outstanding
Credit Obligations of a Lender or Lenders offering the lowest Absolute Rate or
Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving
Credit Commitment.
If Competitive Bid Quotes are made by two or more Lenders with the
same Absolute Rates or Eurodollar Competitive Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which
Competitive Bid Quotes are accepted for the related Interest Period after the
acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates
or Eurodollar Competitive Rates, as the case may be, offered by any Lender for
such related Interest Period, the principal amount of Competitive Bid Loans in
respect of which such Competitive Bid Quotes are accepted shall be allocated by
the Borrower among such Lenders as nearly as possible (in amounts of at least
$500,000 or in increments of $100,000 in excess thereof) in proportion to the
aggregate principal amount of such Competitive Bid Quotes. Determinations by
the Borrower of the amounts of Competitive Bid Loans and the lowest bid after
adjustment as provided in Section 2.02(d)(iii) shall be conclusive in the
absence of manifest error.
(e) Any Lender whose offer to make any Competitive Bid
Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North
Carolina time on the date specified for the making of such Loan, make the
amount of such Loan available to the Borrower to the Borrower's Account or
otherwise as shall be directed by the Authorized Representative in Dollars and
in immediately available funds.
(f) From time to time, the Borrower shall furnish such
information to the Agent as the Agent may request relating to the making of
Competitive Bid Loans, including the amounts, interest rates, dates of
borrowings and maturities thereof.
(g) The Borrower may request the Agent to receive the
Competitive Bid Quotes, in which event the Agent shall (A) in the case of a
Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the
Competitive Bid Quote is submitted (but in no event later than 10:00 a.m.,
Charlotte, North Carolina time on the Quotation Date) or (B) in the case of a
Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 a.m. New
York, New York time on the date a Competitive Quote is submitted, notify the
Borrower of the terms of any Competitive Bid Quote submitted by a Lender that
is in accordance with Section 2.02(c) hereof. The Agent's
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notice to the Borrower shall specify (A) the aggregate principal amount of the
Competitive Bid Borrowing for which Competitive Bid Quotes have been received
and (B) the respective principal amounts and Absolute Rates or Eurodollar
Competitive Rate, as the case may be, offered by each Lender (identifying the
Lender that made each Competitive Bid Quote). Not later than 10:30 a.m.
Charlotte, North Carolina time on (A) the third Business Day prior to the
proposed date of borrowing, in the case of Competitive Bid Loans at the
Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case,
such other time and date as the Borrower and the Agent, with the consent of the
Required Lenders, may agree), the Borrower shall notify the Agent of its
acceptance or nonacceptance of the Competitive Bid Quotes so notified to it
(and the failure of the Borrower to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify each affected
Lender. Together with each notice of a request for Competitive Bid Quotes,
which the Borrower requires the Agent to issue pursuant to this paragraph (g),
the Borrower shall pay to the Agent for the account of the Agent a bid
administration fee of $1,500.00.
2.03 Payment of Interest. (a) The Borrower shall pay interest (i)
to the Agent at the Principal Office for the account of each Lender on the
outstanding and unpaid principal amount of each Revolving Credit Loan made by
such Lender for the period commencing on the date of such Loan until such Loan
shall be due at the Eurodollar Rate or the Base Rate, as elected or deemed
elected by the Borrower or otherwise applicable to such Loan as herein
provided, (ii) to the Lender at its Lending Office making each Competitive Bid
Loan, at the applicable Absolute Rate or Eurodollar Competitive Rate, as the
case may be, and (iii) to the Agent in the case of each Swing Line Loan, at the
Base Rate; provided, however, that if any amount shall not be paid when due (at
maturity, by acceleration or otherwise), all amounts outstanding hereunder
shall bear interest thereafter (i) in the case of a Eurodollar Loan, at a rate
of two percent (2%) above the Applicable Eurodollar Rate for such Eurodollar
Loan, (ii) in the case of a Base Rate Loan, at a rate of interest per annum
which shall be two percent (2%) above the Base Rate, and (iii) in the case of a
Competitive Bid Loan, at a rate of interest per annum which shall be two
percent (2%) above the Absolute Rate or Eurodollar Competitive Rate, as the
case may be, for such Competitive Bid Loan, or (in each case) the maximum rate
permitted by applicable law, whichever is lower, from the date such amount was
due and payable until the date such amount is paid in full.
(b) Interest on the outstanding principal balance of each Loan shall
be computed on the basis of (x) in the case of a Eurodollar Loan a year of 360
days and calculated for the actual number of days elapsed and (y) in the case
of a Base Rate Loan, a year of 365-366 days and calculated for the actual
number of days elapsed. Interest on each Loan shall be paid (a) quarterly in
arrears on the last Business Day of each December, March, June or September,
commencing December 31, 1995, on each Base Rate Loan,
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(b) on the last day of the applicable Interest Period for each Eurodollar Loan
and Competitive Bid Loan, but in no event less frequently than at the end of
each three month period and (c) upon payment in full of the principal amount of
such Loan.
2.04 Payment of Principal. The principal amount of the Revolving
Credit Debit Balance and all Swing Line Outstanding shall be due and payable to
the Agent for the benefit of each Lender in full on the Revolving Credit
Termination Date, or earlier as herein expressly provided. The principal
amount of all Competitive Bid Loans shall be due and payable to the Lender
making such Competitive Bid Loan in full on the last day of the Interest Period
therefor, or earlier as herein expressly provided. The principal amount of
Eurodollar Loans and Competitive Bid Loans may only be prepaid at the end of
the applicable Interest Period, unless the Borrower shall pay to the Agent for
the account of the Lenders the amount, if any, required under Section 4.04.
The Borrower shall furnish the Agent telephonic notice of its intention to make
a principal payment (including Competitive Bid Loans) prior to 11:00 A.M.
Charlotte, North Carolina time on the date of such payment. All payments of
principal shall be in the amount of $500,000 or such greater amount which is an
integral multiple of $100,000.
2.05 Non-Conforming Payments. (a) Each payment of principal
(including any prepayment) and payment of interest shall be made to the Agent
at the Principal Office, for the account of each Lender's applicable Lending
Office, in Dollars and in immediately available funds before 12:30 P.M.
Charlotte, North Carolina time on the date such payment is due. The Agent may,
but shall not be obligated to, debit the amount of any such payment which is
not made by such time to any ordinary deposit account, if any, of the Borrower
with the Agent.
(b) The Agent shall deem any payment by or on behalf of the
Borrower hereunder that is not made both (a) in Dollars and in immediately
available funds and (b) prior to 12:30 P.M. Charlotte, North Carolina time on
the date payment is due to be a non-conforming payment. Any such payment shall
not be deemed to be received by the Agent until the time such funds become
available funds. Any non-conforming payment may constitute or become a Default
or Event of Default. The Agent shall give prompt telephonic notice to the
Authorized Representative and each of the Lenders (confirmed in writing) if any
payment is non-conforming. Interest shall continue to accrue on any principal
as to which a non-conforming payment is made until such funds become available
funds (but in no event less than the period from the date of such payment to
the next succeeding Business Day) at the respective rates of interest per annum
specified in Section 2.03(a) in respect of late payments of interest, from the
date such amount was due and payable until the date such amount is paid in full
(but in no event less than the period from the date of such payment to the next
succeeding Business Day).
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(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day; provided that interest
shall continue to accrue during the period of any such extension.
2.06 Borrower's Account. The Borrower shall continuously maintain
the Borrower's Account for the purposes herein contemplated.
2.07 Notes. (a) Revolving Credit Loans made by each Lender, shall
be evidenced by, and be repayable with interest in accordance with the terms
of, the Revolving Credit Note payable to the order of such Lender in the amount
of its Applicable Commitment Percentage of the Total Revolving Credit
Commitment, which Revolving Credit Note shall be dated the Closing Date or such
later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrower.
(b) Competitive Bid Loans made by any Lender shall be evidenced
by, and be repayable with interest in accordance with the terms of, the
Competitive Bid Note payable to the order of such Lender in the amount of 50%
of the Total Revolving Credit Commitment (but the aggregate outstanding
principal amount of Competitive Bid Loans may not at any time exceed fifty
percent (50%) of the Total Revolving Credit Commitment) which shall be dated
the Closing Date or such later date pursuant to an Assignment and Acceptance
and shall be duly completed, executed and delivered by the Borrower.
(c) Swing Line Loans made by NationsBank shall be evidenced by the
Swing Line Note in the principal amount of $10,000,000, and shall be repayable
with interest in accordance with the terms of the Swing Line Note dated the
Closing Date and duly executed and delivered by the Borrower.
2.08 Pro Rata Payments. Except as otherwise provided herein, (a)
each payment and prepayment on account of the principal of and interest on the
Loans (other than Competitive Bid Loans and Swing Line Loans) and the fees
described in Sections 2.12 and 2.13 hereof shall be made to the Agent in the
aggregate amount payable to the Lenders for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, (b) each payment of principal
and interest on the Competitive Bid Loans shall be made to the Agent for the
account of the respective Lender making such Competitive Bid Loan, (c) each
payment of principal and interest on Swing Line Loans shall be made to the
Agent for the account of NationsBank, (d) all payments to be made by the
Borrower for the account of each of the Lenders on account of principal,
interest and fees, shall be made without set-off or counterclaim, and (e) the
Agent will distribute such payments when received to the Lenders as provided
for herein.
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2.09 Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
twice during each Fiscal Year), upon not less than five (5) Business Days
written notice to the Agent to reduce the Total Revolving Credit Commitment.
The Agent shall give each Lender, within one (1) Business Day, telephonic
notice (confirmed in writing) of such reduction. Each such reduction shall be
in the aggregate amount of $5,000,000 or such greater amount which is in an
integral multiple of $1,000,000, and shall permanently reduce the Total
Revolving Credit Commitment of the Lenders pro rata. No such reduction shall
be permitted that results in the payment of any Eurodollar Loan other than on
the last day of the Interest Period of such Loan unless such prepayment is
accompanied by amounts due, if any, under Section 4.04. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Credit Notes to the extent that the sum of the Outstanding Credit
Obligations exceeds the Total Revolving Credit Commitment after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid.
2.10 Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower shall be
reduced by the aggregate amount of all Swing Line Outstanding and Outstanding
Letters of Credit and outstanding Competitive Bid Loans.
2.11 Conversions and Elections of Subsequent Interest Periods.
Provided that no Default or Event of Default shall have occurred and be
continuing and subject to the limitations set forth below and in Sections
4.01(b), 4.02 and 4.03 hereof, the Borrower may:
(a) upon notice to the Agent on or before 10:30 A.M. Charlotte,
North Carolina time on any Business Day convert all or a part of Eurodollar
Loans that are Revolving Credit Loans to Base Rate Loans on the last day of the
Interest Period for such Eurodollar Loans; and
(b) on three (3) Euro Business Days' notice to the Agent on or
before 10:30 A.M. Charlotte, North Carolina time:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Loans to begin on the last day of the current
Interest Period for such Eurodollar Loans; or
(ii) convert Base Rate Loans (other than Swing Line Loans)
to Eurodollar Loans on any Eurodollar Business Day; and
Notice of any such elections or conversions shall specify the
effective date of such election or conversion and, with respect to Eurodollar
Loans, the Interest Period to be applicable to the Loan as continued or
converted. Each election and conversion pursuant
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to this Section 2.11 shall be subject to the limitations on Eurodollar Loans
set forth in the definition of "Interest Period" herein and in Section 4.01 and
Article IV hereof. All such continuations or conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the
Lenders.
2.12 Revolving Credit Facility Fee. For the period beginning on the
Effective Date and ending on the Revolving Credit Termination Date (or such
earlier date on which the Revolving Credit Facility has terminated), the
Borrower agrees to pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages of the Revolving Credit
Facility, the Facility Fee. Such payments of fees provided for in this Section
2.12 shall be due in arrears on the last Business Day of each December, March,
June and September beginning December 31, 1995 to and on the Revolving Credit
Termination Date (or such earlier date on which the Revolving Credit Facility
has terminated). Notwithstanding the foregoing, so long as any Lender fails to
make available any portion of its Revolving Credit Commitment when requested,
such Lender shall not be entitled to receive payment of its pro rata share of
such fee until such Lender shall make available such portion. Such fee shall
be calculated on the basis of a year of 365-366 days for the actual number of
days elapsed.
2.13 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to
make any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrower as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the applicable Note in
its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such advance under its applicable Note; provided that, upon payment to
the Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Agent by the Borrower on
each Loan comprising the deficiency advance at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve Bank, then such
payment shall be credited against the applicable Note of the Agent in full
payment of such deficiency advance and the Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
date such deficiency advance is made.
2.14 Adjustments by Agent. Notwithstanding the construction of "pro
rata" to mean based on the Applicable Commitment
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Percentages and any provisions contained herein for the advancement of funds or
distribution of payments on a pro rata basis, the Agent may, in its discretion,
but shall not be obligated to, adjust downward or upward (but not in excess of
any applicable Revolving Credit Commitment) the principal amount of any Loan to
be made by any Lender to the nearest amount which is evenly divisible by $100,
and make appropriate related adjustment in the distribution of payments of
principal and interest on the Loans.
2.15 Use of Proceeds. The proceeds of the Loans made pursuant to
the Revolving Credit Facility and the Swing Line hereunder shall be used by the
Borrower and its Subsidiaries to finance Capital Expenditures and Permitted
Acquisitions and for other working capital and general corporate needs of the
Borrower and its Subsidiaries.
2.16 Swing Line. Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
make any Swing Line Loan pursuant hereto (i) if the Borrower is not in
compliance with all the conditions to the making of Revolving Credit Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line Loan,
the Swing Line Outstanding exceeds $10,000,000, or (iii) if after giving effect
to such Swing Line Loan, the sum of the Outstanding Credit Obligations exceed
the Total Revolving Credit Commitment. Loans made pursuant to this Section
2.16 shall be limited to Loans bearing interest at the Base Rate unless
NationsBank and Borrower shall agree otherwise.
(i) On each Business Day, in the absence of contrary
instructions from the Borrower (by telephone confirmed in writing),
NationsBank shall make a Swing Line Loan by funding the Borrower's
Account with NationsBank through credits to such account to the extent
necessary based on the balance in the account on such day in order to
fund that day's presentments for payment against the account. Upon
each Advance, the Borrower shall be indebted to NationsBank in the
amount of the Advance, plus interest thereon, in accordance with the
terms and conditions hereof.
(ii) Not later than 3:00 P.M. (Charlotte, North Carolina
time) on each Business Day on which Advances under the Swing Line are
to be made, NationsBank shall inform the Borrower by telephone of the
amount of such Advances.
(iii) All Advances made by NationsBank under the Swing Line
pursuant to this Section 2.16 outstanding on any day shall bear
interest at the Base Rate unless NationsBank shall agree otherwise.
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(iv) The Borrower and each Lender which is or may become a
party hereto acknowledge that all Swing Line Loans are to be made
solely by NationsBank to the Borrower but that such Lender shall share
the risk of loss with respect to such Advances in an amount equal to
such Lender's Applicable Commitment Percentage of such Swing Line
Loan. Upon demand made by NationsBank, each Lender shall, according
to its Lender's Applicable Commitment Percentage of such Swing Line
Loan, promptly provide to NationsBank its purchase price therefor in
an amount equal to its Participation therein. Any Advance made by a
Lender pursuant to demand of NationsBank of the purchase price of its
Participation shall be deemed a Base Rate Loan ending on the next
following Business Day, which shall be extended automatically until
the Borrower converts such Base Rate Loan in accordance with the terms
of Section 2.11 hereof. The obligation of each Lender to so provide
its purchase price to NationsBank shall be absolute and unconditional
and shall not be affected by the occurrence of a Default or an Event
of Default or any other occurrence or event.
Borrower at its option may request an Advance as a Revolving Credit
Loan pursuant to Section 2.01 in an amount sufficient to repay any or all Swing
Line Loans on any date and the Agent shall upon the receipt of such Advance,
provide to NationsBank the amount necessary to repay such Swing Line Loan or
Loans (which NationsBank shall then apply to such repayment) and credit any
balance of the Revolving Credit Loan in immediately available funds to the
Borrower's Account. The proceeds of such Advances shall be paid to NationsBank
for application to the Swing Line Outstanding and the Lenders shall then be
deemed to have made Revolving Credit Loans in the amount of such Advances. The
Swing Line shall continue to be available until the earlier of (i) occurrence
of a Default or an Event of Default, or (ii) the Revolving Credit Termination
Date.
2.17 Additional Fees. In addition to any fees described above, the
Borrower agrees to pay to the Agent and NationsBank such other fees as may be
agreed to in a separate writing or writings.
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ARTICLE III
Letters of Credit
3.01 Letters of Credit. NationsBank agrees, subject to the terms
and conditions of this Agreement, upon request and for the account of Borrower,
to issue from time to time Letters of Credit upon delivery to NationsBank of an
Application and Agreement for Letter of Credit in form and content acceptable
to NationsBank; provided, that the Outstanding Letters of Credit shall not
exceed the Total Letter of Credit Commitment. No Letter of Credit shall be
issued by NationsBank with an expiry date or payment date occurring subsequent
to the fifth Business Day preceding the Revolving Credit Termination Date.
NationsBank shall not be required to issue any Letter of Credit if the
Outstanding Credit Obligations when added to the face amount of any requested
Letter of Credit exceed the Total Revolving Credit Commitment. The Co-Agent
shall notify the Agent of any extension, amendment or renewal of any Existing
Letter of Credit.
3.02 Reimbursement.
(a) The Borrower hereby unconditionally agrees
immediately to pay to NationsBank on demand at the Principal Office, in the
case of NationsBank and its Lending Office, in the case of the Co-Agent, all
amounts required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing Bank in
connection with the Letters of Credit and in any event and without demand to
place in possession of the Issuing Bank (which shall include Advances under the
Revolving Credit Facility if permitted by Section 2.01 hereof) sufficient funds
to pay all debts and liabilities arising under any Letter of Credit. The
Borrower's obligations to pay the Issuing Bank under this Section 3.02, and the
Issuing Bank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever. The Issuing Bank
agrees to give the Borrower prompt written notice of any request for a draw
under a Letter of Credit. The Issuing Bank may charge any account the Borrower
may have with it for any and all amounts the Issuing Bank pays under a Letter
of Credit, plus charges and reasonable expenses as from time to time agreed to
by the Issuing Bank and the Borrower; provided that to the extent permitted by
Section 2.01(c)(iv), such amounts shall be paid pursuant to Swing Line Loans or
Advances under the Revolving Credit Facility. The Borrower agrees that the
Issuing Bank may, in its sole discretion, accept or pay, as complying with the
terms of any Letter of Credit, any drafts or other documents otherwise in order
which may be signed or issued by an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of a party
who is authorized under such Letter of Credit to draw or issue any drafts or
other documents. The Borrower agrees to pay the Issuing Bank interest on any
amounts not paid when due hereunder at the Base Rate plus two percent (2%), or
the maximum rate permitted by applicable law, if lower.
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(b) In accordance with the provisions of Section 2.01
hereof, the Issuing Bank shall notify the Agent (and shall also notify the
Borrower) of any drawing under any Letter of Credit as promptly as practicable
following the receipt by NationsBank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of the Issuing Bank in respect of each Letter of Credit in an amount
equal to such Lender's Applicable Commitment Percentage of such liability, and
to the extent that the Borrower is obligated to pay the Issuing Bank under
Section 3.02(a), each Lender (other than the Issuing Bank) shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank as hereinafter described, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of Credit.
Prior to the Revolving Credit Termination Date, each Lender (including the
Issuing Bank in its capacity as a Lender) shall, subject to the terms and
conditions of Article II, make a Revolving Credit Loan bearing interest at the
Base Rate to the Borrower by paying to the Agent for the account of the Issuing
Bank at the Principal Office in Dollars and in immediately available funds, an
amount equal to its Applicable Commitment Percentage of any drawing under a
Letter of Credit, all as described and pursuant to Section 2.01(c)(iv). With
respect to drawings under any of the Letters of Credit, each Lender, upon
receipt from the Agent of notice of a drawing in the manner described in
Section 2.01(c)(iv), shall promptly pay to the Agent for the account of the
Issuing Bank, prior to the applicable time set forth in Section 2.01(c)(iv),
its Applicable Commitment Percentage of such drawing. Simultaneously with the
making of each such payment by a Lender to the Issuing Bank, such Lender shall,
automatically and without any further action on the part of the Issuing Bank or
such Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest) in the related
Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the
Borrower shall be immediately due and payable whether by Advances made in
accordance with Section 2.01(c)(iv) or otherwise. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant to this
Section 3.02(c), and the right of the Issuing Bank to receive the same, shall
be absolute and unconditional, shall not be affected by any circumstance
whatsoever and shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Lender is obligated to pay but does not pay
amounts to the Agent for the account of the Issuing Bank in full upon such
request as required by this Section 3.02(c), such Lender shall, on demand, pay
to the Agent for the account of the Issuing Bank interest on the unpaid amount
for each day during the period commencing on the date of notice given to such
Lender pursuant to Section 2.01(b) until such Lender pays such amount to the
Agent for the account of the Issuing Bank in full at the interest rate per
annum for overnight borrowing by NationsBank from the Federal Reserve Bank.
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(d) As soon as practical following the issuance of a
Letter of Credit, NationsBank shall notify the Agent, and the Agent shall
notify each Lender, of the date of issuance of such Letter of Credit, the
stated amount and the expiry date of such Letter of Credit. Promptly following
the end of each calendar quarter, NationsBank shall deliver to the Agent, and
the Agent shall deliver to each Lender, a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the
request of any Lender from time to time, NationsBank shall deliver to the
Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Outstanding Letter of
Credit.
(e) The issuance by NationsBank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 5.01
hereof, be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to NationsBank
consistent with the then current practices and procedures of NationsBank with
respect to similar letters of credit, and the Borrower shall have executed and
delivered such other instruments and agreements relating to such Letters of
Credit as NationsBank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to
and subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) Without duplication of Section 10.07 hereof, the
Borrower hereby agrees to defend, indemnify and hold harmless the Issuing Bank,
each other Lender and the Agent from and against any and all claims and
damages, losses, liabilities, reasonable costs and expenses which the Issuing
Bank, such other Lender or the Agent may incur (or which may be claimed against
the Issuing Bank, such other Lender or the Agent) by any Person by reason of or
in connection with the issuance or transfer of or payment or failure to pay
under any Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the party
to be indemnified after final adjudication thereof or (ii) caused by the
failure of the Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, unless such payment is prohibited by any
law, regulation, court order or decree. The provisions of this Section 3.02(f)
shall survive repayment of the Obligations, the occurrence of the Revolving
Credit Termination Date, and expiration or termination of this Agreement.
(g) Without limiting Borrower's rights to raise claims as
set forth in Section 3.02(f) above, the obligation of the Borrower to
immediately reimburse the Issuing Bank for drawings made under Letters of
Credit shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the
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terms of this Agreement and such Letters of Credit and the related applications
for any Letter of Credit, including, under the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
(ii) any amendment or waiver of or any consent to
or departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the terms of this
Agreement) or other rights which the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be acting), Agent,
Lenders or any other person or entity, whether in connection with the Loan
Documents, the Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute
between the Borrower and any beneficiary or any transferee of a Letter of
Credit (or any persons or entities for whom such beneficiary or any such
transferee may be acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or agreed to by Agent,
with or without notice to or approval by the Borrower in respect of any of
Borrower's Obligations under this Agreement; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release the
Issuing Bank or any other Lender of any liability for actual loss arising as a
result of its gross negligence or willful misconduct or out of the wrongful
dishonor by NationsBank of a proper demand for payment made under and strictly
complying with the terms of any Letter of Credit.
3.03 Letter of Credit Fee. The Borrower agrees to pay (i) to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each Outstanding Letter of Credit at a rate equal to the Applicable Margin to
the Eurodollar Rate as in effect from time to time and (ii) to the Issuing
Bank, as issuer of each Letter of Credit, an issuance fee equal to .125% per
annum of the aggregate amount available to be drawn on each Outstanding Letter
of Credit. Such payments of fees provided for in this
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Section 3.03 shall be due with respect to each Letter of Credit quarterly in
arrears on the last day of each December, March, June and September, commencing
on the first such date following the issuance of a Letter of Credit under this
Agreement. Such fees shall be calculated on the basis of a year of 365-366
days for the actual number of days elapsed.
3.04 Administrative Fees. The Borrower shall pay to the Issuing
Bank such administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank and the
Borrower shall agree from time to time.
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ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs. (a) The Borrower shall promptly pay to the
Agent for the account of a Lender from time to time, without duplication, such
amounts as such Lender may determine to be necessary to compensate it for any
costs incurred by such Lender which it determines are attributable to its
making or maintaining any Loan or its obligation to make any Loans, or the
issuance or maintenance by the Issuing Bank of or any other Lender's
Participation in any Letter of Credit issued hereunder, or any reduction in any
amount receivable by such Lender under this Agreement, the Notes or the Letters
of Credit in respect of any of such Loans or such obligation or the Letters of
Credit, including reductions in the rate of return on a Lender's capital (such
increases in costs and reductions in amounts receivable and returns being
herein called "Additional Costs"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such Lender under
this Agreement or the Notes in respect of any of such Loans or Letters of
Credit (other than taxes imposed on or measured by the income, revenues or
assets of any Lender); or (ii) imposes or modifies any reserve, special
deposit, or similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Lender (other
than any such reserve, deposit or requirement reflected in the Prime Rate, the
Federal Funds Effective Rate or the Eurodollar Rate, in each case computed in
accordance with the respective definitions of such terms set forth in Section
1.01 hereof); or (iii) has or would have the effect of reducing the rate of
return on capital of any such Lender or corporation controlling such Lender to
a level below that which the Lender or corporation controlling such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy);
or (iv) imposes any other condition adversely affecting the Agent or the
Lenders under this Agreement, the Notes or the issuance or maintenance of, or
any Lender's Participation in, the Letters of Credit (or any of such extensions
of credit or liabilities). Each Lender will notify the Authorized
Representative and the Agent of any event occurring after the Effective Date
which would entitle it to compensation pursuant to this Section 4.01(a) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation.
(b) Without limiting the effect of the foregoing provisions of
this Section 4.01, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of the Lender which includes deposits by reference to which the
interest rate on Eurodollar Loans or Competitive Bid Loans at the Eurodollar
Competitive Rate is determined as provided in this Agreement or a category of
extensions of credit or other assets of any Lender which includes Eurodollar
Loans or Competitive Bid Loans at the
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Eurodollar Competitive Rate (by way of illustration only and not limitation, an
increase in reserve requirements on a Lender's eurodollar deposit liabilities
above a specified dollar amount percentage of its capital) or (ii) becomes
subject to restrictions on the amount of such a category of liabilities or
assets which it may hold, then, if the Lender so elects by notice to the other
Lenders, the obligation hereunder of such Lender to make, and to convert Base
Rate Loans into, Eurodollar Loans that are the subject of such restrictions
shall be suspended until the date such Regulatory Change ceases to be in effect
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for outstanding Eurodollar Loans convert such Eurodollar Loans into
Base Rate Loans; provided, however, that the suspension of such obligation and
the conversion of any Eurodollar Loans into Base Rate Loans shall apply only to
any Lender who is affected by such restrictions and who has provided such
notice to the other Lenders, and the obligation of the other Lenders to make,
and to convert Base Rate Loans into Eurodollar Loans shall not be affected by
such restrictions. In the event that the obligation of some, but not all of
the Lenders to make, or to convert Base Rate Loans into Eurodollar Loans or
Competitive Bid Loans at the Eurodollar Competitive Rate is suspended, then any
request by the Borrower during the pendency of such suspension for a Eurodollar
Loan or Competitive Bid Loans at the Eurodollar Competitive Rate shall be
deemed a request for such Eurodollar Loan or Competitive Bid Loans at the
Eurodollar Competitive Rate from the Lender(s) not subject to such suspension
and for a Base Rate Loan or Competitive Bid Loan at an Absolute Rate from the
Lender(s) who are subject to such suspension, as to Eurodollar Loans and Base
Rate Loans, in each case in the respective amounts based on the Lenders'
respective Revolving Credit Commitments and Reserve Line Commitments, as
applicable.
(c) Determinations by any Lender for purposes of this Section 4.01
of the effect of any Regulatory Change on its costs of making or maintaining,
or being committed to make, Loans or by NationsBank as issuer of any Letter of
Credit of the effect of any Regulatory Change on its costs in connection with
the issuance or maintenance of, or any other Lender's Participation in, any
Letter of Credit issued hereunder, or on amounts receivable by any Lender in
respect of Loans or Letters of Credit, and of the additional amounts required
to compensate the Lender in respect of any Additional Costs, shall be made on a
reasonable basis taking into account such Lender's reasonable policies as to
the allocation of capital, costs and other items. The Lender requesting such
compensation shall furnish to the Authorized Representative and the Agent an
explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.02 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Loan or Competitive Bid Loan at a Eurodollar Competitive Rate
for any Interest Period, the Agent or, with respect to a Competitive Bid Loan
at the Eurodollar
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Competitive Rate, any Lender determines (which determination made on a
reasonable basis shall be conclusive absent manifest error) that:
(a) quotations of interest rates for the relevant
deposits referred to in the definitions of a Eurodollar Revolver Rate
or Eurodollar Competitive Rate in Section 1.01 hereof are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such Eurodollar Loan
or Competitive Bid Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Interbank Offered Rate" in Section 1.01 hereof upon the
basis of which the Eurodollar Revolver Rate or Eurodollar Competitive
Rate for such Interest Period is to be determined do not adequately
reflect the cost to the Lenders or in the case of a Competitive Bid
Loan, the Lender making such Loan of making or maintaining such
Eurodollar Loan or Competitive Bid Loan for such Interest Period
(which determination shall be made on a reasonable basis by the Agent
or such Lender, as the case may be, and the Person making such
determination shall furnish the Authorized Representative evidence of
the facts leading to such determination);
then the Agent or Lender, as the case may be, shall give the Authorized
Representative prompt notice thereof, and so long as such condition remains in
effect, the Lenders shall be under no obligation to make Eurodollar Loans or
Competitive Bid Loans or the Eurodollar Competitive Rate that are subject to
such condition, or to convert Loans into Eurodollar Loans, and the Borrower
shall on the last day(s) of the then current Interest Period(s) for outstanding
Eurodollar Loans, as applicable, convert such Eurodollar Loans into another
Eurodollar Loan which is not subject to the same or similar condition, or Base
Rate Loans. The Agent or such Lender, as the case may be, shall give the
Authorized Representative notice describing in reasonable detail any event or
condition described in this Section 4.02 promptly following the determination
by the Agent or such Lender, as the case may be, that the availability of
Eurodollar Loans or Competitive Bid Loans at a Eurodollar Competitive Rate is,
or is to be, suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor its
obligation to make or maintain Eurodollar Loans or Competitive Bid Loans at a
Eurodollar Competitive Rate hereunder, then such Lender shall promptly notify
the Borrower thereof (with a copy to the Agent) and such Lender's obligation to
make or continue Eurodollar Loans or Competitive Bid Loans at a Eurodollar
Competitive Rate, or convert Base Rate Loans into Eurodollar Loans, shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans or Competitive Bid Loans at a Eurodollar Competitive Rate, and such
Lender's outstanding
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Eurodollar Loans shall be converted into Base Rate Loans in accordance with
Section 2.11 hereof.
4.04 Compensation. The Borrower shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be sufficient
(in the reasonable determination of Lender) to compensate it for any loss, cost
or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar
Loan or Competitive Bid Loans at a Eurodollar Competitive Rate on a
date other than the last day of the Interest Period for such
Eurodollar Loan or Competitive Bid Loans at a Eurodollar Competitive
Rate, including without limitation any conversion required pursuant to
this Article IV; or
(b) any failure by the Borrower to borrow, convert or
prepay a Eurodollar Loan or Competitive Bid Loan at a Eurodollar
Competitive Rate on the date for such borrowing, conversion or
prepayment specified in the relevant Borrowing Notice, Competitive Bid
Quote Request, interest rate selection notice or prepayment notice
under Article II hereof;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount so paid, prepaid or converted or not borrowed for the period
from the date of such payment, prepayment or conversion or failure to borrow or
convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow or convert, the Interest Period for such
Loan which would have commenced on the date scheduled for such borrowing or
conversion) at the applicable rate of interest for such Loan provided for
herein over (ii) the Interbank Offered Rate (as reasonably determined by the
Agent or the applicable Lender in the case of a Competitive Bid Loan) for
Dollar deposits of amounts comparable to such principal amount and maturities
comparable to such period. A determination of a Lender as to the amounts
payable pursuant to this Section 4.04 shall be conclusive, provided that such
determinations are made on a reasonable basis. The Lender requesting
compensation under this Section 4.04 shall furnish to the Authorized
Representative and the Agent calculations in reasonable detail setting forth
such Lender's determination of the amount of such compensation.
4.05 Alternate Loan and Lender. In the event any Lender suspends
the making of any Eurodollar Loan pursuant to this Article IV (herein a
"Restricted Lender"), the Restricted Lender's Applicable Commitment Percentage
of any Eurodollar Loan shall bear interest at either the Base Rate or the
Eurodollar Rate for which the suspension does not apply, as selected by
Borrower, until the Restricted Lender once again makes available the applicable
Eurodollar Loan. Notwithstanding the provisions of Section 2.03(b), interest
shall be payable to the Restricted Lender at the time and manner as paid to
those Lenders making available
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Eurodollar Loans. If the obligation of any Lender to make Eurodollar Loans is
suspended, the Borrower may, with respect to such Lender, elect to terminate
this Agreement, and in connection therewith, not to borrow at the Base Rate as
provided above; provided, that the Borrower notifies such Lender through the
Agent of such election at least three Business Days before any date fixed for
such borrowing and (i) repays all of such Lender's outstanding Loans plus all
accrued interest, commitment fees and other amounts owing to, but not
including, the date of repayment at the end of the respective Interest Periods
applicable thereto, and (ii) selects, with the consent of the Agent, which
shall not be unreasonably withheld, an assignee which shall assume all the
rights and obligations of such Lender as to which this Agreement has been
terminated. Upon receipt by the Agent of such notice and the assignment to and
assumption of the Revolving Credit Commitment by a replacement bank, the
Revolving Credit Commitment of such Lender shall terminate.
4.06 Taxes. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future excise, stamp
or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding (i) franchise taxes, (ii) any taxes (other than
withholding taxes) that would not be imposed but for a connection between a
Lender or the Agent and the jurisdiction imposing such taxes (other than a
connection arising solely by virtue of the activities of such Lender or the
Agent pursuant to or in respect of this Agreement or any other Loan Document),
(iii) any withholding taxes payable with respect to payments hereunder or under
any other Loan Document under laws (including, without limitation, any statute,
treaty, ruling, determination or regulation) in effect on the Closing Date,
(iv) any taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits and (v) any taxes arising after the Closing Date
solely as a result of or attributable to Lender changing its designated lending
office after the date such Lender becomes a party hereto (such non-excluded
items being collectively called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such authority; and
(c) pay to the Agent for the account of the Lender such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount
such Lender would have received had no such withholding or deduction
been required.
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Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto, such
Person shall deliver to the Borrower and the Agent such certificates, documents
or other evidence, as required by the Code or Treasury Regulations issued
pursuant thereto, properly completed, currently effective and duly executed by
such Lender or participant establishing that such payment is (i) not subject to
United States Federal backup withholding tax and (ii) not subject to United
States Federal withholding tax under the Code because such payment is either
effectively connected with the conduct by such Lender or participant of a trade
or business in the United States or totally exempt from United States Federal
withholding tax by reason of the application of the provisions of a treaty to
which the United States is a party or such Lender is otherwise exempt.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lender, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.06, a distribution hereunder by
the Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
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ARTICLE V
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of
Credit. The obligation of the Lenders to make Advances and of NationsBank to
issue Letters of Credit is subject to the conditions precedent that the Agent
shall have received on or before the Effective Date, in form and substance
satisfactory to the Agent and Lenders, the following:
(a) executed originals of each of this Agreement, the
Notes and the other Loan Documents, together with all schedules and
exhibits hereto and thereto;
(b) favorable written opinions of special counsel to the
Borrower and the Guarantors dated the Closing Date, addressed to the
Agent and the Lenders and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx,
L.L.P., special counsel to the Agent, substantially in the forms of
Exhibit L attached hereto;
(c) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof)
of the Borrower and each of the Guarantors certified by its secretary
or assistant secretary or other appropriate official as of the Closing
Date, appointing (in the case of the Borrower) the Authorized
Representative and approving and adopting the Loan Documents to be
executed by such Person, and authorizing the execution and delivery
thereof;
(d) specimen signatures of officers of the Borrower and
each Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary or other appropriate
official of the Borrower or such Guarantor, as applicable;
(e) the charter documents or documents of establishment
of the Borrower and each Guarantor certified as of a recent date by
the Secretary of State or other appropriate Governmental Authority of
its jurisdiction of incorporation;
(f) the by-laws of the Borrower and each Guarantor
certified as of the Closing Date as true and correct by the secretary
or assistant secretary of the Person to whom such by-laws relate;
(g) certificates issued as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation as to the due existence and good
standing of the Borrower and each Guarantor therein;
(h) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to conduct
business under assumed name, issued in respect of the
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Borrower and each Guarantor as of a recent date by the Secretary of
State or other appropriate Governmental Authority of each jurisdiction
in which the failure to be qualified to do business or authorized so
to conduct business could materially adversely affect the business,
operations or conditions, financial or otherwise, of the Borrower or
any Guarantor;
(i) notice of appointment of the initial Authorized
Representative of the Borrower in the form of Exhibit C hereto;
(j) certificate of an Authorized Representative dated the
Effective Date demonstrating compliance with the financial covenants
contained in Sections 8.01 through 8.06 as of the immediately
preceding Determination Date, substantially in the form of Exhibit L
attached hereto;
(k) evidence of insurance required by the Loan Documents;
(l) Borrowing Notice;
(m) all fees payable by the Borrower on the Effective
Date to the Agent, NationsBank and the Lenders; and
(n) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Effective Date in connection with the consummation of the
transactions contemplated hereby.
5.02 Conditions of Loans. The obligations of the Lenders to make
any Loans, and NationsBank to issue Letters of Credit hereunder on or
subsequent to the Effective Date are subject to the satisfaction of the
following conditions:
(a) the Agent shall have received a notice of such
borrowing or request if required by Article II hereof;
(b) the representations and warranties of the Borrower
and the Guarantors, taken as a whole, set forth in Article VI hereof
and in each of the other Loan Documents shall be true and correct in
all material respects on and as of the date of such Advance or
issuance of such Letters of Credit, as the case may be, with the same
effect as though such representations and warranties had been made on
and as of such date, except to the extent that such representations
and warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 6.01(f)(i) shall be deemed
to be those financial statements most recently delivered to the Agent
and the Lenders pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrower shall have executed and delivered to NationsBank an
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Application and Agreement for Letter of Credit in form and content
acceptable to NationsBank together with such other instruments and
documents as it shall request;
(d) at the time of each such Advance, Swing Line Loan or
issuance of each Letter of Credit, as the case may be, and after
giving effect thereto no Default or Event of Default specified in
Article IX hereof, shall have occurred and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the
aggregate Swing Line Outstanding shall not exceed $10,000,000; and
(f) immediately after giving effect to a Loan or Letter
of Credit the aggregate principal balance of all outstanding Loans and
Participations for each Lender and in the aggregate shall not exceed,
respectively, (i) any of such Lender's Revolving Credit Commitment or
Letter of Credit Commitment or (ii) any of the Total Revolving Credit
Commitment or Total Letter of Credit Commitment.
5.03 Supplements to Schedules. The Borrower may, from time to time,
amend or supplement the Schedules to this Agreement by delivering (effective
upon receipt) to the Agent and each Lender a copy of such revised Schedule or
Schedules which shall (i) be dated the date of delivery, (ii) be certified by
an Authorized Representative as true, complete and correct as of such date and
as delivered in replacement for the corresponding Schedule or Schedules
previously in effect, and (iii) show in reasonable detail (by blacklining or
other appropriate graphic means) the changes from each such corresponding
predecessor Schedule. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, in the event that the Required
Lenders determine based upon such revised Schedule (whether individually or in
the aggregate or cumulatively) that there has been a material adverse change
since the Closing Date in the financial condition, business or operations of
the Borrower and its Subsidiaries, taken as a whole, the Lenders shall have no
further obligation to fund additional Advances hereunder.
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ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Borrower represents and
warrants with respect to itself and to its Subsidiaries (which representations
and warranties shall survive the delivery of the documents mentioned herein and
the making of Loans and issuance of Letters of Credit), that:
(a) Organization and Authority.
(i) the Borrower and each Subsidiary is a
corporation duly organized and validly existing under the laws
of the jurisdiction of its incorporation or creation;
(ii) the Borrower and each Subsidiary (x) has the
requisite power and authority to own its properties and assets
and to carry on its business as now being conducted and as
contemplated in the Loan Documents, and (y) is qualified to do
business in every jurisdiction in which failure so to qualify
would have a material adverse effect on the business or
operations of the Borrower or any Subsidiary;
(iii) the Borrower has the power and authority to
execute, deliver and perform this Agreement and the Notes, and
to borrow hereunder, and to execute, deliver and perform each
of the other Loan Documents to which it is a party;
(iv) each Guarantor has the power and authority to
execute, deliver and perform the Guaranty and the other Loan
Documents to which it is a party; and
(v) when executed and delivered, each of the Loan
Documents to which Borrower or any Guarantor is a party will
be the legal, valid and binding obligation or agreement, as
the case may be, of such Borrower or Guarantor, enforceable
against such Borrower or Guarantor in accordance with its
terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a
proceeding at law or in equity);
(b) Loan Documents. The execution, delivery and
performance by the Borrower and each Guarantor of each of the Loan
Documents to which the Borrower or a Guarantor is a party:
(i) have been duly authorized by all requisite
corporate action (including any required shareholder
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approval) of the Borrower or Guarantor signatory thereto
required for the lawful execution, delivery and performance
thereof;
(ii) do not violate any provisions of (1)
applicable law, rule or regulation, (2) any order of any court
or other agency of government binding on the Borrower or any
Guarantor, or their respective properties, or (3) the charter
documents, documents of creation or by-laws of Borrower or any
Guarantor;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default, or an event
which, with notice or lapse of time, or both, would constitute
an event of default, under any indenture, agreement or other
instrument to which Borrower or any Guarantor is a party, or
by which the properties or assets of Borrower or any Guarantor
are bound;
(iv) will not result in the creation or imposition
of any Lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of Borrower or any
Guarantor.
(c) Solvency. Borrower and each Guarantor are Solvent
after giving effect to the transactions contemplated by this Agreement
and the other Loan Documents.
(d) Subsidiaries and Stockholders. Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in
Schedule 6.01(d) hereto; Schedule 6.01(d) to this Agreement states as
of the date hereof the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and
outstanding of each such Subsidiary and the number and/or percentage
of outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class
of capital stock or equity interest owned by Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each
such Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable; and Borrower and each such Subsidiary
owns beneficially and of record all the shares and other interests it
is listed as owning in Schedule 6.01(d), free and clear of any Lien.
(e) Ownership Interests. Borrower owns no interest in
any Person having an aggregate book value of $10,000 or more other
than the Persons listed in Schedule 6.01(d) hereto;
(f) Financial Condition. (i) The Borrower has heretofore
furnished to each Lender an audited consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 1994 and the notes
thereto and the related consolidated statements of operations, cash
flows, and changes in stockholders' equity for the Fiscal Year then
ended as examined and certified by
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Xxxxxx Xxxxxxxx L.L.P. and unaudited interim consolidated financial
statements of the Borrower and its Subsidiaries consisting of a
consolidated balance sheet and related consolidated statements of
operations, cash flows, and changes in stockholders' equity, in each
case without notes, for and as of the end of the third fiscal quarter
of the Fiscal Year beginning January 1, 1995, as certified by an
Authorized Representative. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the
financial condition of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and third fiscal quarter and results of their
operations and the changes in their stockholders' equity for the
Fiscal Year and quarter then ended, all in conformity with Generally
Accepted Accounting Principles applied on a Consistent Basis, subject
however, in the case of unaudited interim statements to year end
adjustments;
(ii) since September 30, 1995, there has been no material
adverse change in the condition, financial or otherwise, of the
Borrower and its Subsidiaries or in the businesses, properties and
operations of the Borrower and its Subsidiaries, considered as a
whole, nor have such businesses or properties, taken as a whole, been
materially adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God;
(iii) except as set forth in the financial statements
referred to in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule
6.01(j) attached hereto, neither Borrower nor any Subsidiary has
incurred, other than in the ordinary course of business, any material
indebtedness, obligations, commitments or other liability contingent
or otherwise which remain outstanding or unsatisfied;
(g) Title to Properties. The Borrower and its
Subsidiaries have title to all their respective owned real and
personal properties, subject to no transfer restrictions or Liens of
any kind, except for (x) the transfer restrictions and Liens described
in Schedule 6.01(g) attached hereto, and (y) Liens permitted under
Section 8.05 hereof;
(h) Taxes. The Borrower and its Subsidiaries have filed
or caused to be filed all federal, state, local and foreign tax
returns which are required to be filed by them and except for taxes
and assessments being contested in good faith and against which
reserves satisfactory to the Borrower's independent certified public
accountants have been established, have paid or caused to be paid all
taxes as shown on said returns or on any assessment received by them,
to the extent that such taxes have become due;
(i) Other Agreements. Neither the Borrower nor any
Subsidiary is
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(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions materially
adversely affecting the business, properties or assets,
operation or condition (financial or otherwise) of the
Borrower or of any Subsidiary; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which the Borrower
or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could have, a
material adverse effect on the business, operations or
condition, financial or otherwise, of the Borrower or any
Subsidiary;
(j) Litigation. Except as set forth in Schedule 6.01(j)
attached hereto, there is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Subsidiary or affecting
the Borrower or any Subsidiary or any properties or rights of the
Borrower or any Subsidiary, which could reasonably be expected to
materially adversely affect the financial condition, business or
operations of the Borrower or any Subsidiary;
(k) Margin Stock. Neither the Borrower nor any
Subsidiary owns any "margin stock" as such term is defined in
Regulation U, as amended (12 C.F.R. Part 221), of the Board. The
proceeds of the borrowings made pursuant to Article II hereof will be
used by the Borrower and its Subsidiaries only for the purposes set
forth in Section 2.15 hereof. None of such proceeds will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin
stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said
Regulation U or Regulation X (12 C.F.R. Part 224) of the Board.
Neither the Borrower nor any agent acting in its behalf has taken or
will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of
1934, as amended, or the Securities Act of 1933, as amended, or any
state securities laws, in each case as in effect on the date hereof;
(l) Investment Company. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended (15 U.S.C. Section 80a-1, et seq.). The application of the
proceeds of the Loans and repayment thereof by the Borrower and the
performance by the Borrower of the transactions contemplated by this
Agreement
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will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in
each case as in effect on the date hereof;
(m) Patents, Etc. The Borrower and its Subsidiaries own
or have the right to use, under valid license agreements or otherwise,
all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
necessary to the conduct of their businesses as now conducted, without
known conflict with any patent, license, franchise, trademark, trade
secrets and confidential commercial or proprietary information, trade
name, copyright, rights to trade secrets or other proprietary rights
of any other Person;
(n) No Untrue Statement. Neither this Agreement nor any
other Loan Document or certificate or document executed and delivered
by or on behalf of the Borrower or any Guarantor in accordance with or
pursuant to any Loan Document contains any misrepresentation or untrue
statement of material fact or omits to state a material fact
necessary, in light of the circumstance under which it was made, in
order to make any such representation or statement contained therein
not misleading in any material respect;
(o) No Consents, Etc. Neither the respective businesses
or properties of the Borrower or any Subsidiary, nor any relationship
between the Borrower or any Subsidiary and any other Person, nor any
circumstance in connection with the execution, delivery and
performance of the Loan Documents and the transactions contemplated
hereby is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any Governmental
Authority or other authority or any other Person on the part of the
Borrower or any Subsidiary as a condition to the execution, delivery
and performance of, or consummation of the transactions contemplated
by, this Agreement or the other Loan Documents or if so, such consent,
approval, authorization, filing, registration or qualification has
been obtained or effected, as the case may be;
(p) Benefit Plans.
(i) None of the employee benefit plans maintained
at any time by the Borrower or any Subsidiary or the trusts created
thereunder has engaged in a prohibited transaction which could subject
any such employee benefit plan or trust to a material tax or penalty
on prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA;
(ii) None of the employee benefit plans maintained
at any time by the Borrower or any Subsidiary which are employee
pension benefit plans and which are subject to Title IV of ERISA or
the trusts created thereunder has been terminated so as to result in a
material liability of the
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Borrower under ERISA nor has any such employee benefit plan of the
Borrower or any Subsidiary incurred any material liability to the
Pension Benefit Guaranty Corporation established pursuant to ERISA,
other than for required insurance premiums which have been paid or are
not yet due and payable; neither the Borrower nor any Subsidiary has
withdrawn from or caused a partial withdrawal to occur with respect to
any Multi-employer Plan resulting in any assessed and unpaid
withdrawal liability; the Borrower and the Subsidiaries have made or
provided for all contributions to all such employee pension benefit
plans which they maintain and which are required as of the end of the
most recent fiscal year under each such plan; neither the Borrower nor
any Subsidiary has incurred any accumulated funding deficiency with
respect to any such plan, whether or not waived; nor has there been
any reportable event, or other event or condition, which presents a
material risk of termination of any such employee benefit plan by such
Pension Benefit Guaranty Corporation;
(iii) Except as set forth in Schedule 6.01(p), the
present value of all vested accrued benefits under the employee
pension benefit plans which are subject to Title IV of ERISA,
maintained by the Borrower or any Subsidiary, did not, as of the most
recent valuation date for each such plan, exceed the then current
value of the assets of such employee benefit plans allocable to such
benefits;
(iv) The consummation of the Loans and the
issuance of the Letters of Credit provided for in Article II and
Article III will not involve any prohibited transaction under ERISA
which is not subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each
employee pension benefit plan subject to Title IV of ERISA, maintained
by the Borrower or any Subsidiary, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules;
(vi) There has been no material withdrawal
liability incurred and unpaid with respect to any Multi-employer Plan
to which the Borrower or any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms
"employee benefit plan," "employee pension benefit plan," "accumulated
funding deficiency," "reportable event," and "accrued benefits" shall
have the respective meanings assigned to them in ERISA, and the term
"prohibited transaction" shall have the meaning assigned to it in Code
Section 4975 and ERISA;
(viii) Except as set forth in Schedule 6.01(p),
neither the Borrower nor any Subsidiary has any liability not
disclosed on any of the financial statements furnished to the Lenders
pursuant to Section 7.01(f) hereof, contingent or
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otherwise, under any plan or program or the equivalent for unfunded
post-retirement benefits, including pension, medical and death
benefits, which liability would have a material adverse effect on the
financial condition of the Borrower or any Subsidiary.
(q) No Default. There does not exist any Default or
Event of Default hereunder;
(r) Hazardous Materials. Except as set forth in Schedule
6.01(r), the Borrower and each Subsidiary is in compliance with all
applicable Environmental Laws in all material respects and neither the
Borrower nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which calls into question compliance by
the Borrower or any Subsidiary with any Environmental Laws or which
seeks to suspend, revoke or terminate any license, permit or approval
necessary for the generation, handling, storage, treatment or disposal
of any Hazardous Material;
(s) RICO. Neither the Borrower nor any Subsidiary is
engaged in or has engaged in any course of conduct that could subject
any of their respective properties to any Lien, seizure or other
forfeiture under any criminal law, racketeer influenced and corrupt
organizations law, civil or criminal, or other similar laws;
(t) Employment Matters. Except as disclosed on Schedule
6.01(j) hereto, the Borrower and all Subsidiaries are in compliance in
all material respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and
taxation the noncompliance with which might have a material adverse
effect on the business, operations or financial condition of the
Borrower or any Subsidiary (a "Material Adverse Effect") and there is
neither pending nor, to the knowledge of the Borrower, threatened any
litigation, administrative proceeding or investigation, in respect of
such matters, an adverse ruling or determination in which could have a
Material Adverse Effect.
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ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will and will
cause each Subsidiary to:
7.01 Financial Reports, Etc. (a) as soon as practical and in any
event within 120 days after the end of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, with the
notes thereto, the related consolidated statements of operations, cash flow,
and shareholders' equity and the respective notes thereto for such Fiscal Year,
setting forth comparative financial statements for the preceding Fiscal Year,
all prepared in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis and containing opinions of Xxxxxx Xxxxxxxx
L.L.P., or other such independent certified public accountants selected by the
Borrower and approved by the Agent, which are unqualified as to the scope of
the audit performed and as to the "going concern" status of the Borrower; and
(ii) a certificate of an Authorized Representative as to the existence of any
Default or Event of Default and demonstrating compliance with Sections 8.01,
8.02 and 8.03 of this Agreement, which certificate shall be in the form
attached hereto as Exhibit M;
(b) as soon as practical and in any event within 60 days after the
end of each quarterly period (except the last reporting period of the Fiscal
Year), deliver to the Agent and each Lender (i) the consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such reporting period,
the related consolidated statements of operations, cash flow, and shareholders'
equity for such reporting period and for the period from the beginning of the
Fiscal Year through the end of such reporting period, accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, in conformity with the standards set forth in Section 6.01(f)(i) with
respect to interim financials, and (ii) a certificate of an Authorized
Representative as to the existence of any Default or Event of Default and
containing computations for such quarter comparable to that required pursuant
to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements
required by Section 7.01(a)(i) hereof, if the accountants specified in Section
7.01(a)(i) shall have obtained knowledge of a Default or Event of Default in
the fulfillment of the terms and provisions of this Agreement insofar as they
relate to financial statements (which at the date of such statements remains
uncured), deliver to
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the Agent and the Lenders a statement specifying the nature and period of
existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular
or special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to the Borrower or any of its Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Borrower or any of
its Subsidiaries; and
(e) promptly, from time to time, deliver or cause to be delivered
to the Agent and each Lender such other information regarding Borrower's and
each Subsidiary's operations, business affairs and financial condition as the
Agent or such Lender may reasonably request. The Agent and the Lenders are
hereby authorized to deliver a copy of any such financial information delivered
hereunder to the Lenders (or any affiliate of any Lender) or to the Agent, to
any regulatory authority having jurisdiction over any of the Lenders pursuant
to any written request therefor, or, subject to Section 11.01(e) hereof, to any
other Person who shall acquire or consider the acquisition of a participation
interest in or assignment of any Loan or Letter of Credit permitted by this
Agreement.
7.02 Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted) and make all needed repairs, replacements and renewals as are
necessary to conduct its business in accordance with customary business
practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all
things necessary to preserve and keep in full force and effect its existence
and all material rights and franchises, trade names, trademarks and permits,
except to the extent conveyed in connection with a transaction permitted under
Section 8.06 hereof, and maintain its license or qualification to do business
as a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary.
7.04 Regulations and Taxes. Comply with all statutes and
governmental regulations and pay all taxes, assessments, governmental charges,
claims for labor, supplies, rent and any other obligation which, if unpaid,
might become a Lien against any of its properties except liabilities being
contested in good faith and against which adequate reserves have been
established.
7.05 Insurance. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards as are customarily
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insured against by similar businesses owning such properties similarly
situated, (ii) maintain general public liability insurance at all times with
responsible insurance carriers against liability on account of damage to
persons and property having such limits, deductibles, exclusions and
co-insurance and other provisions providing no less coverage than that
specified in Schedule 7.05 attached hereto, such insurance policies to be in
form satisfactory to the Agent, and (iii) maintain insurance under all
applicable workers' compensation laws (or in the alternative, maintain required
reserves if self-insured for workers' compensation purposes).
7.06 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions
in accordance with customary business practices, and set up on its books such
reserves as may be required by Generally Accepted Accounting Principles with
respect to doubtful accounts and all taxes, assessments, charges, levies and
claims and with respect to its business in general, and include such reserves
in interim as well as year-end financial statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a)
Make full and timely payment of the principal of and interest on the Notes and
all other Obligations whether now existing or hereafter arising; and (b) duly
comply with all the terms and covenants contained in all Loan Documents and
other instruments and documents given to the Agent or the Lenders pursuant
hereto or thereto.
7.08 Right of Inspection. Permit any Person designated by any Lender
or the Agent at the Lender's or Agent's expense, as the case may be, to visit
and inspect any of the properties, corporate books and financial reports of the
Borrower and its Subsidiaries, and to discuss their respective affairs,
finances and accounts with their principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
7.09 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of
any regulatory or governmental authority with respect to the conduct of its
business the non-compliance with which might have a material adverse effect.
7.10 Covenants Extending to Subsidiaries. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.02 through 7.09, inclusive.
7.11 Officer's Knowledge of Default. Upon the Borrower obtaining
knowledge of any Default or Event of Default hereunder or under any other
obligation of the Borrower or any Subsidiary, cause an Authorized
Representative to promptly notify the Agent of the nature thereof, the period
of existence thereof, and what action the Borrower proposes to take with
respect thereto.
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7.12 Suits or Other Proceedings. Upon the Borrower obtaining
knowledge of any litigation or other proceedings being instituted against the
Borrower or any Subsidiary, or any attachment, levy, execution or other process
being instituted against any assets of the Borrower or any Subsidiary, in an
aggregate amount greater than [$250,000] not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other
process.
7.13 Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Agent true, accurate and complete copies of
any and all notices, complaints, orders, directives, claims, or citations
received by the Borrower or any Subsidiary relating to any material (a)
violation or alleged violation by the Borrower or any Subsidiary of any
applicable Environmental Laws or OSHA; (b) release or threatened release by the
Borrower or any Subsidiary of any Hazardous Material, except where occurring
legally; or (c) liability or alleged liability of the Borrower or any
Subsidiary for the costs of cleaning up, removing, remediating or responding to
a release of Hazardous Materials.
7.14 Environmental Compliance. If the Borrower or any Subsidiary
shall receive notice from any Governmental Authority that the Borrower or any
Subsidiary has violated any applicable Environmental Laws, the Borrower shall
promptly (and in any event within the time period permitted by the applicable
Governmental Authority) remove or remedy, or cause the applicable Subsidiary to
remove or remedy, such violation.
7.15 Further Assurances. At its cost and expense, upon request of
the Agent, duly execute and deliver or cause to be duly executed and delivered,
to the Agent such further instruments, documents, certificates, agreements,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
7.16 Benefit Plans. Comply in all material respects with all
requirements of ERISA applicable to it and furnish to the Agent as soon as
possible and in any event (i) within thirty (30) days after the Borrower knows
or has reason to know that any reportable event with respect to any employee
benefit plan maintained by the Borrower or any Subsidiary which could give rise
to termination or the imposition of any material tax or penalty has occurred,
written statement of an Authorized Representative describing in reasonable
detail such reportable event and any action which the Borrower or applicable
Subsidiary proposes to take with respect thereto, together with a copy of the
notice of such reportable event given to the Pension Benefit Guaranty
Corporation or a statement that said notice will be filed with the annual
report of the United States Department of Labor with respect to such plan if
such filing has been authorized, (ii) promptly after receipt thereof, a copy of
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any notice that the Borrower or any Subsidiary may receive from the Pension
Benefit Guaranty Corporation relating to the intention of the Pension Benefit
Guaranty Corporation to terminate any employee benefit plan or plans of the
Borrower or any Subsidiary or to appoint a trustee to administer any such plan,
and (iii) within 10 days after a filing with the Pension Benefit Guaranty
Corporation pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a plan, a
certificate of an Authorized Representative setting forth details as to such
failure and the action that the Borrower or its affected Subsidiary, as
applicable, proposes to take with respect thereto, together with a copy of such
notice given to the Pension Benefit Guaranty Corporation.
7.17 Continued Operations. Continue at all times (i) to conduct its
business and engage principally in the same or complementary line or lines of
business substantially as heretofore conducted (subject to the right to dispose
of assets in transactions permitted under Section 8.06 hereof and to make
Permitted Acquisitions), and (ii) preserve, protect and maintain free from
Liens (other than Liens permitted under Section 8.05 hereof) its material
patents, copyrights, licenses, trademarks, trademark rights, trade names, trade
name rights, trade secrets and know-how necessary or useful in the conduct of
its operations.
7.18 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.15 hereof.
7.19 New Subsidiaries. Within thirty (30) days of (a) any
Subsidiary becoming a Material Subsidiary and (b) the acquisition or creation
of any Material Subsidiary, or upon any previously existing Subsidiary becoming
a Material Subsidiary, cause to be delivered to the Agent for the benefit of
the Lenders each of the following:
(i) a guarantee agreement executed by such Subsidiary in
the form previously delivered by the Guarantors to the Agent, with
appropriate insertions of identifying information and such other
changes to which the Agent may consent in its discretion;
(ii) an opinion of counsel to such Material Subsidiary
dated as of the date of delivery of the guarantee agreement
provided in the foregoing clause (i) and addressed to the Agent and
the Lenders, in form and substance reasonably acceptable to the Agent
(which opinion may include assumptions and qualifications of similar
effect to those contained in the opinions of counsel delivered
pursuant to Section 5.01 hereof), to the effect that:
(A) such Material Subsidiary is duly organized,
validly existing and in good standing in the jurisdiction of
its organization, has the requisite power and authority to own
its properties and conduct its business as then owned and then
proposed to be conducted and is
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duly qualified to transact business and is in good standing as
a foreign corporation in each other jurisdiction in which the
character of the properties owned or leased, or the business
carried on by it, requires such qualification; and
(B) the execution, delivery and performance of
the guarantee agreement described in clause (i) of this
Section 7.19 to which such Material Subsidiary is a signatory
have been duly authorized by all requisite corporate action
(including any required shareholder or partner approval), such
agreements have been duly executed and delivered and
constitute valid and binding obligations of such Material
Subsidiary, enforceable against such Subsidiary in accordance
with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights
generally and to the effect of general principles of equity
which may limit the availability of equitable remedies
(whether in a proceeding at law or in equity); and
(iii) current copies of the charter documents, including any
bylaws of such Material Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, or appropriate committees thereof (and, if required by such
charter documents, bylaws or by applicable laws, of the shareholders
or partners) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in clause (i) of this
Section 7.19 and evidence satisfactory to the Agent (confirmation of
the receipt of which will be provided by the Agent to the Lenders)
that such Material Subsidiary is Solvent as of such date and after
giving effect to the guaranty.
7.20 Additional Guarantors. If at any time the Borrower and
Guarantors, on a consolidated basis (excluding all intercompany obligations),
(i) own less than 80% of Consolidated Total Assets, or (ii) generate less than
80% of Consolidated Net Income, the Borrower shall immediately cause additional
Subsidiaries to become Guarantors by complying in all respects with Section
7.19 hereof or cause to be transferred to the Borrower or the existing
Guarantors, or both, additional assets of Subsidiaries so that after giving
effect to either or both of the foregoing, the Borrower and Guarantors
collectively own and generate not less than 80% of Consolidated Total Assets
and Consolidated Net Income, respectively.
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ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
8.01 Indebtedness to Capitalization. Permit at any time the ratio
of Consolidated Funded Indebtedness to Consolidated Total Capitalization to be
greater than .40 to 1.00.
8.02 Consolidated Fixed Charge Ratio. Permit at any time the
Consolidated Fixed Charge Ratio to be less than 1.50 to 1.00.
8.03 Indebtedness to EBITDA. Permit at any time the ratio of
Consolidated Funded Indebtedness at the date of determination to Consolidated
EBITDA for the Four-Quarter Period most recently ended to be greater than 3.00
to 1.00.
8.04 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(i) Indebtedness existing as of the date hereof and as
set forth in Schedule 8.04 attached hereto and incorporated herein by
reference;
(ii) Indebtedness owed the Agent or the Lenders in
connection with this Agreement or any Swap Agreement;
(iii) the endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of
business;
(iv) secured Indebtedness in an aggregate outstanding
amount not to exceed at any time five percent (5%) of Consolidated
Total Capitalization;
(v) unsecured Indebtedness.
8.05 Liens. Incur, create or permit to exist any pledge, Lien,
charge or other encumbrance of any nature whatsoever with respect to any
property or assets now owned or hereafter acquired by the Borrower or any of
its Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth
in Schedule 6.01(g) attached hereto;
(ii) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet due or which
are being contested in good faith by appropriate proceedings
diligently pursued and with respect to which adequate reserves or
other appropriate provisions are being
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maintained in accordance with Generally Accepted Accounting
Principles;
(iii) Liens on property securing Indebtedness permitted under
Section 8.04(iv); and
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Generally Accepted
Accounting Principles;
(v) Liens incurred or deposits made in the ordinary
course of business (including, without limitation, surety bonds and
appeal bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts; and
(vi) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Borrower or any Subsidiary and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof to the Borrower or any Subsidiary.
8.06 Transfer of Assets. Sell, lease, transfer or otherwise dispose
of property, plant and equipment of Borrower or any Subsidiary which have a
book value or sales price in excess of 10% of Consolidated Total Assets during
any Fiscal Year or 20% of Consolidated Total Assets during the term of this
Agreement.
8.07 Investments; Acquisitions. Purchase, own, invest in or
otherwise acquire, directly or indirectly, any stock or other securities or all
or substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, Borrower and its Subsidiaries may maintain investments or
invest in or acquire
(i) Eligible Securities;
(ii) all or substantially all of the stock or other equity
interests, or all or substantially all of the assets of another Person
(or a line of business or division of such
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other Person) constituting a Permitted Acquisition; provided, however,
that if the Person or the assets so acquired on a pro forma historical
basis as at the date of the acquisition or for the Four-Quarter Period
most recently ended preceding the date of acquisition owned assets or
generated income, which when consolidated with the assets and income
of the Borrower and its Subsidiaries, constitute ten percent (10%) or
more of Consolidated Total Assets or Consolidated Net Income, then the
Borrower shall furnish to the Agent and the Lenders prior to
completing such acquisition a certificate in the form of Exhibit G
attached hereto containing information required therein demonstrating
that on a historical pro forma basis that after giving effect to such
acquisition no Default or Event of Default exists hereunder.
(iii) investments existing as of the date hereof and as set
forth in Schedule 6.01(d) attached hereto;
(iv) accounts receivable arising and trade credit granted
in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss; and
(v) loans and advances to and investments in Subsidiaries who
are Guarantors; and
(vi) loans and advances to and investments in Persons
other than Guarantors in an aggregate outstanding amount not exceeding
at any time fifteen percent (15%) of Consolidated Shareholders'
Equity.
8.08 Merger or Consolidation. Other than as permitted under Section
8.07(ii) hereof (a) consolidate with or merge into any other Person, or (b)
permit any other Person to merge into it, or (c) liquidate, wind-up or dissolve
or sell, transfer or lease or otherwise dispose of all or a substantial part of
its assets (other than sales in the ordinary course of business); provided,
however, (i) any Subsidiary of the Borrower may merge or transfer all or
substantially all of its assets into or consolidate with any wholly-owned
Subsidiary of the Borrower, (ii) any Person may merge with the Borrower if the
Borrower shall be the survivor thereof and such merger shall not cause, create
or result in the occurrence of any Default or Event of Default hereunder.
8.09 Transactions with Affiliates. Other than transactions permitted
under Section 8.08 hereof, enter into any transaction after the date hereof,
including, without limitation, the purchase, sale, leasing or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services and (b) in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's (or any
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Subsidiary's) business consistent with past practice of the Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable
arm's-length transaction with a Person not an Affiliate.
8.10 Benefit Plans. With respect to all employee pension benefit
plans maintained by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans
so as to incur any liability to the Pension Benefit Guaranty
Corporation established pursuant to ERISA;
(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject the Borrower or a Subsidiary to
a tax or penalty or other liability on prohibited transactions imposed
under Internal Revenue Code Section 4975 or ERISA;
(iii) fail to pay to any such employee pension benefit plan
any contribution which it is obligated to pay under the terms of such
plan;
(iv) except as set forth in Schedule 6.01(p), allow or
suffer to exist any accumulated funding deficiency, whether or not
waived, with respect to any such employee pension benefit plan;
(v) allow or suffer to exist any occurrence of a
reportable event or any other event or condition, which presents a
material risk of termination by the Pension Benefit Guaranty
Corporation of any such employee pension benefit plan that is a Single
Employer Plan, which termination could result in any liability to the
Pension Benefit Guaranty Corporation; or
(vi) incur any material withdrawal liability with respect
to any Multi-employer Plan.
8.11 Fiscal Year. Change the Borrower's Fiscal Year without prior
notification to the Agent.
8.12 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily
or involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Borrower permitted
pursuant to Section 8.08.
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ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or of any fees or other amounts
payable to the Lenders, the Agent or NationsBank under the Loan
Documents on the date on which the same shall be due and payable and
such failure to pay shall continue for a period of three days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 7.06, 7.07(a), 7.11, 7.19 or
Article VIII hereof;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or the
Borrower becomes aware of such default, or if a default shall be made
in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan
Documents (beyond any applicable grace period, if any, contained
therein) or in any instrument or document evidencing or creating any
obligation or guaranty in favor of the Agent or the Lenders or
delivered to the Agent or the Lenders in connection with or pursuant
to this Agreement or any of the Obligations, or if any Loan Document
ceases to be in full force and effect (other than by reason of any
action by the Agent), or if without the written consent of the Agent
and the Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of
any action by the Agent or any Lender); or
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(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of the Borrower or
of any Subsidiary in an amount not less than $1,000,000 in the
aggregate outstanding, or (ii) in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower
or any Subsidiary, and such default shall continue for more than the
period of grace, if any, therein specified, or if such default shall
permit the holder of any such Indebtedness to accelerate the maturity
thereof; provided, however, that if the Borrower is contesting the
payment amount on any such Indebtedness or the date such payment is
due in good faith and the Borrower establishes reserves on its books
if required by and in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis, then such nonpayment, in and
of itself, shall not, absent an acceleration of such Indebtedness
constitute an Event of Default; or
(f) if any representation, warranty or other statement of
fact contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of the Borrower or any Guarantor pursuant
to or in connection with this Agreement or the other Loan Documents,
or otherwise, shall be false or misleading in any material respect
when given or made or deemed given or made; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency, reorganization, bankruptcy, receivership
or similar law, domestic or foreign; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of
a receiver, trustee, liquidator or conservator of itself or of the
whole or any substantial part of its property; file a petition or
answer seeking reorganization or arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute,
federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign
country, province or other political subdivision, which petition is
not dismissed within sixty (60) days; or if, under the provisions of
any other law for the
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relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against
the Borrower or any Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state or foreign country, province or other
political subdivision which proceeding or petition remains undismissed
for a period of thirty (30) days; or if the Borrower or any Subsidiary
takes any action to indicate its consent to or approval of any such
proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $250,000 is rendered against the Borrower or any
Subsidiary, or (ii) there is any attachment, injunction or execution
against any of the Borrower's or any Subsidiary's properties for any
amount in excess of $250,000; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than as
permitted under Section 8.08 hereof or in the ordinary course of
business (as determined by past practices), suspend (other than for a
period not to exceed twenty (20) days by reason of force majeure) all
or any part of its operations material to the conduct of the business
of the Borrower or such Subsidiary, taken as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage in any
prohibited transaction (as described in Section 8.10(ii) hereof),
which is not subject to a statutory or administrative exemption,
involving any employee pension benefit plan of the Borrower or any
Subsidiary, (ii) any accumulated funding deficiency (as referred to in
Section 8.10(iv) hereof), whether or not waived, shall exist with
respect to any Single Employer Plan, (iii) a reportable event (as
referred to in Section 8.10(v) hereof) (other than a reportable event
for which the statutory notice requirement to the Pension Benefit
Guaranty Corporation has been waived by regulation) shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed to administer or to terminate, any
Single Employer Plan, which reportable event or institution or
proceedings is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Single Employer Plan for
purposes of Title IV of ERISA, and in the case of such a reportable
event, the continuance of such reportable event shall be unremedied
for sixty (60) days after notice of such reportable event pursuant to
Section 4043(a), (c) or (d) of ERISA is given, as the case may be,
(iv) any Single Employer
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Plan shall terminate for purposes of Title IV of ERISA, and such
termination results in a material liability of the Borrower or any
Subsidiary to such Single Employer Plan or the Pension Benefit
Guaranty Corporation, (v) the Borrower or any Subsidiary shall
withdraw from a Multi-employer Plan for purposes of Title IV of ERISA,
and, as a result of any such withdrawal, the Borrower or any
Subsidiary shall incur material withdrawal liability to such
Multi-employer Plan, or (vi) any other event or condition shall occur
or exist; and in each case in clauses (i) through (vi) of this Section
9.01(k), such event or condition, together with all other such events
or conditions, if any, could subject the Borrower or any Subsidiary to
any tax, penalty or other liabilities, and in each such case the event
or condition is not remedied to the satisfaction of the Required
Lenders within ninety (90) days after the earlier of (i) receipt of
notice of such event or condition by the Authorized Representative
from the Agent or (ii) the Borrower becomes aware of such event or
condition; or
(l) if any Person or group of Persons acting in concert
other than the owners of more than 35% of the outstanding voting
securities of the Borrower as of the Effective Date having voting
rights in the election of directors, shall own or control, directly or
indirectly, more than 35% of the outstanding securities (on a fully
diluted basis and taking into account any voting securities or
contract rights exercisable, exchangeable or convertible into equity
securities) of the Borrower having voting rights in the election of
directors; or
(m) the replacement or resignation (other than by reason
of death, illness or incapacity), within any two-year period, of a
majority of the members of the Board of Directors of the Borrower (the
"Board") or a change in the size of the Board, within any two-year
period, which results in members of the Board who were in office at
the beginning of such two-year period constituting less than a
majority of the members of the Board (unless such replacement,
resignation or change in size of the Board shall have been effected or
initiated by a majority of the members of the Board in office at the
beginning of such two-year period);
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the
Required Lenders shall, declare any obligation of the Lenders
to make further Loans or issue Letters of Credit terminated,
whereupon the obligation of each Lender to make further Loans
or issue Letters of Credit, hereunder shall terminate
immediately, and (ii) the Agent shall at the direction of the
Required Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the
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same, including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to lend and issue Letters of Credit
hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Agent or the Required Lenders
or notice to the Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent
or the Required Lenders, deposit cash with the Agent in
accordance with the LC Account Agreement in an amount equal to
the amount of any Letters of Credit remaining undrawn or
unpaid, as collateral security for the repayment of any future
drawings or payments under such Letters of Credit and the
Borrower shall forthwith deposit and pay such amounts and such
amounts shall be held by the Agent pursuant to the terms of
the applicable Application and Agreement for Letter of Credit;
(C) the Agent and the Lenders shall have all of the
rights and remedies available under the Loan Documents or
under any applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or
in any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon
the Lenders or the Agent is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right
or remedy shall be cumulative and shall be in addition to every other such
right or remedy contained herein and therein or now or hereafter existing at
law or in equity or by statute, or otherwise.
9.04 No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the
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exercise of any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
9.05 Default. The Agent and the Lenders shall have no right to
accelerate any of the Loans upon, or to institute any action or proceeding
before any court to realize upon collateral as a result of, the occurrence of
any Default which shall not also constitute an Event of Default; provided,
however, nothing contained in this sentence shall in any respect impair or
adversely affect the right, power and authority of the Agent and the Lenders
(i) to take any action expressly required or permitted to be taken under the
Loan Documents upon the occurrence of any Default (and including any action or
proceeding which the Agent may determine to be necessary or appropriate in
furtherance of any such expressly authorized action) and (ii) to take any
action provided under the Loan Documents or otherwise available by statute, at
law or in equity upon the occurrence of any Default.
9.06 Allocation of Proceeds. If an Event of Default has
occurred and not been waived, and the maturity of the Notes has been
accelerated pursuant to Article IX hereof, all payments received by the Agent
hereunder, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder (other than amounts deposited
with the Agent pursuant to Section 9.01(B) which shall be applied first to
payment of draws under Letters of Credit) shall be applied by the Agent in the
following order:
(i) amounts due to NationsBank and the Lenders pursuant to
Sections 2.12, 2.16, 3.02(f), 3.03, 11.05 and 11.11 hereof;
(ii) amounts due to (A) NationsBank pursuant to Section 3.04
hereof, and (B) to NationsBank and/or the Agent pursuant to Section 2.17
hereof;
(iii) payments of interest on Loans, to be applied for the
ratable benefit of the Lenders;
(iv) payments of principal on Loans, to be applied for the
ratable benefit of the Lenders;
(v) payment of cash amounts to the Agent in respect of
Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders pursuant
to Swap Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement, if
any, to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable law.
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ARTICLE X
The Agent
10.01 Appointment. Each Lender (including NationsBank in its
capacity as maker of Swing Line Loans and as issuer of the Letters of Credit)
hereby irrevocably designates and appoints NationsBank as the Agent of the
Lenders under this Agreement, and each of the Lenders hereby irrevocably
authorizes NationsBank as the Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers as are expressly delegated to the Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of the
Lenders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Agent.
10.02 Attorneys-in-fact. The Agent may execute any of its duties
under this Agreement 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 to the Lenders for the negligence, gross
negligence or willful misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
10.03 Limitation on Liability. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any of its
Subsidiaries, or any officer or representative thereof contained in this
Agreement or in any of the other Loan Documents, or in any certificate, report,
statement or other document referred to or provided for in or received by the
Agent under or in connection with this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any of the other Loan Documents, or for any failure of the Borrower to perform
its obligations thereunder, or for any recitals, statements, representations or
warranties made, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any collateral. The Agent shall not be under
any obligation to any of the Lenders to ascertain or to inquire as to the
observance or performance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of the Borrower or to
inspect the properties, books or records of the Borrower or its Subsidiaries.
10.04 Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing,
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resolution, notice, consent certificate, affidavit, letter, cablegram,
telegram, telecopy or telex 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 the Borrower),
independent accountants and other experts selected by the Agent. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless an Assignment and Acceptance shall have been filed with and accepted by
the Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive advice or
concurrence of the Lenders or the Required Lenders as provided in this
Agreement 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, under this
Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all present and future holders of the Notes.
10.05 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, the Authorized
Representative or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
promptly give 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; provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.06 No Representations. Each Lender expressly acknowledges that
neither the Agent nor any of its affiliates has made any representations or
warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, 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 financial condition, creditworthiness, affairs, status
and nature of the Borrower and its Subsidiaries and made its own decision to
enter into this 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
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under this Agreement and to make such investigation as it deems necessary to
inform itself as to the status and affairs, financial or otherwise, of the
Borrower and its Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Borrower or any of its Subsidiaries which may come into the
possession of the Agent or any of its affiliates.
10.07 Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting any obligations of the Borrower or any Subsidiary so to do), including
its employees, directors, officers and agents, ratably according to the
respective principal amount of the Notes held by them (or, if no Notes are
outstanding, ratably in accordance with their respective Applicable Commitment
Percentages as then in effect) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any
time (including without limitation at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent, including its
employees, directors, officers and agents, in any way relating to or arising
out of this Agreement or any other document contemplated by or referred to
herein or the transactions contemplated hereby 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 Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the
payment of the Obligations and the termination of this Agreement.
10.08 Lender. The Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower
and its Subsidiaries as though it were not the Agent hereunder. With respect
to its Loans made or renewed by it and any Note issued to it, the Agent shall
have the same rights and powers under this Agreement as any Lender and may
exercise the same as though it were not the Agent, and the terms "Lender" and
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity.
10.09 Resignation. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint, with the consent, so long as
there shall not have occurred and be continuing a Default or Event of Default,
of the Borrower, which consent shall not be unreasonably withheld, a successor
Agent for the Lenders, which successor Agent shall be a commercial bank
organized under the laws of the United States or any state thereof, having a
combined surplus and capital of not less than $500,000,000, whereupon such
successor Agent shall succeed to the rights, powers
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and duties of the former Agent and the obligations of the former Agent shall be
terminated and canceled, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement; provided,
however, that the former Agent's resignation shall not become effective until
such successor Agent has been appointed and has succeeded of record to all
right, title and interest in any collateral held by the Agent; provided,
further, that if the Required Lenders and, if applicable, the Borrower cannot
agree as to a successor Agent within ninety (90) days after such resignation,
the Agent shall appoint a successor Agent which satisfies the criteria set
forth above in this Section 10.09 for a successor Agent and the parties hereto
agree to execute whatever documents are necessary to effect such action under
this Agreement or any other document executed pursuant to this Agreement;
provided, however that in such event all provisions of this Agreement and the
Loan Documents, shall remain in full force and effect. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article X shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
10.10 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro
rata and (B) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; provided,
however, that for purposes of this Section 10.10 the term "pro rata" shall be
determined with respect to both the Revolving Credit Commitment of each Lender
and to the Total Revolving Credit Commitment after subtraction in each case of
amounts, if any, by which any such Lender has not funded its share of the
outstanding Revolving Credit Loans and Reimbursement Obligations. If all or
any portion of any such excess payment is thereafter recovered from the Lender
which received the same, the purchase provided in this Section 10.10 shall be
rescinded to the extent of such recovery, without interest. The Borrower
expressly consents to the foregoing arrangements and agrees that each Lender so
purchasing a portion of the other Lenders' Obligations may exercise all rights
of payment (including, without limitation, all rights of set-off, banker's lien
or counterclaim) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
10.11 One Lender. Notwithstanding anything to the contrary contained
herein or in any of the Loan Documents, if at any time NationsBank shall be the
sole Lender, all references to and rights, powers and privileges exercisable by
the "Agent" shall be deemed to refer to NationsBank.
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ARTICLE XI
Miscellaneous
11.01 Assignments and Participations.
(a) At any time after the Effective Date each Lender may, with the
prior consent of the Agent and the Borrower, which consents shall not be
unreasonably withheld (it being understood that consent may be withheld by the
Borrower if such assignment would subject the Borrower to the payment of any
additional amounts pursuant to the provisions of Section 4.06 hereof), assign
to one or more banks or financial institutions all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of any Note payable to its order); provided, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations (including Loans and Participations
but excluding outstanding Competitive Bid Loans) under this Agreement, (ii) for
each assignment involving the issuance and transfer of a Note, the assigning
Lender shall execute an Assignment and Acceptance and the Borrower hereby
consents to execute a replacement Note or Notes to give effect to the
assignment, (iii) the minimum Revolving Credit Commitment which shall be
assigned is $10,000,000 (together with which the assigning Lender's applicable
portion of Participations and the Letter of Credit Commitment shall also be
assigned), except that one Lender may make an assignment to another Lender in
minimum amounts of $1,000,000, (iv) such assignee shall have an office located
in the United States, and (v) an assignment (other than an assignment of 100%
of its interest) by NationsBank shall not include any portion of the Swing Line
or obligation to issue Letters of Credit. Upon such execution, delivery,
approval and acceptance, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder or under such Note
have been assigned or negotiated to it pursuant to such Assignment and
Acceptance have the rights and obligations of a Lender hereunder and a holder
of such Notes and (y) the assignor thereunder shall, to the extent that rights
and obligations hereunder or under such Notes have been assigned or negotiated
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from that portion of its Obligations under this Agreement applicable
to the rights so assigned; provided that such assignor shall not be released
from liability to the Borrower for any acts or omissions of such assignor prior
to such assignment. Any Lender who makes an assignment shall pay to the Agent
a one-time administrative fee of $2,500.00 which fee shall not be reimbursed by
the Borrower.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) the assignment
made under such Assignment and Acceptance is made under such Assignment and
Acceptance without recourse; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the
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financial condition of the Borrower or any Subsidiary or the performance or
observance by the Borrower or any Subsidiary of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements delivered pursuant
to Section 6.01(f) or Section 7.01, as the case may be, and such other Loan
Documents and other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) 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
Agreement; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement,
the Notes and the other Loan Documents as are delegated to the Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender and a holder of such
Notes.
(c) The Agent shall maintain at its address referred to herein a
copy of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender, the Agent shall give prompt notice thereof to Borrower.
(e) Each Lender may sell participations at its expense without the
consent of Borrower or Agent, to one or more banks or other entities as to all
or a portion of its rights and obligations under this Agreement; provided, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any Notes issued to it for the purpose of this Agreement, (iv) such
participations shall be in a minimum amount of $1,000,000 and, in the case of a
participation in the Revolving Credit Facility, shall include an allocable
portion of such Lender's Participation, and (v) Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement; provided,
that the participation agreement between a Lender and its participants may
provide that such Lender will obtain the approval of such participant prior to
such Lender's agreeing to any amendment or waiver of any provisions of this
Agreement which would (A) extend the maturity of any Note, (B) reduce the
interest rate hereunder, (C) increase the Revolving Credit Commitment of the
Lender granting the participation other than as permitted by Section 2.10 or
(D) release any Guarantor, and (vi) the sale of any such participations which
require Borrower to file a registration statement with the United States
Securities and
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Exchange Commission or under the securities regulations or laws of any state
shall not be permitted.
11.02 Notices. All notices shall be in writing, except as to
telephonic notices expressly permitted or required herein, and written notices
shall be delivered by hand delivery, telegram, telex, telefacsimile, overnight
courier or certified or registered mail. Any notice shall be conclusively
deemed to have been received by any party hereto and be effective on the day on
which delivered to such party (against (except as to telephonic or
telefacsimile notice) receipt therefor or, in the case of telex, verification
by return) at the address set forth below or such other address as such party
shall specify to the other parties in writing, or if sent prepaid by certified
or registered mail return receipt requested on the third Business Day after the
day on which mailed, addressed to such party at said address:
(a) if to the Borrower:
Republic Industries, Inc.
000 X. Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Agent:
NationsBank of Florida, National Association
000 X.X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Corporate Banking Department
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
NationsBank of Florida, National Association
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to NationsBank in its capacity as issuer of the
Letters of Credit:
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NationsBank of Florida, National Association
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Letter of Credit Department
Telephone: (704) 386-____
Telefacsimile: (704) 386-____
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
11.03 Setoff. The Borrower agrees that the Agent and each Lender
shall have a Lien for all the Obligations of the Borrower upon all deposits or
deposit accounts, of any kind, or any interest in any deposits or deposit
accounts thereof, now or hereafter pledged, mortgaged, transferred or assigned
to the Agent or such Lender or otherwise in the possession or control of the
Agent or such Lender (other than for safekeeping) for any purpose for the
account or benefit of the Borrower and including any balance of any deposit
account or of any credit of the Borrower with the Agent or such Lender, whether
now existing or hereafter established, hereby authorizing the Agent and each
Lender at any time or times with or without prior notice to apply such balances
or any part thereof to such of the Obligations of the Borrower to the Lenders
then past due and in such amounts as they may elect, and whether or not the
collateral or the responsibility of other Persons primarily, secondarily or
otherwise liable may be deemed adequate. For the purposes of this paragraph,
all remittances and property shall be deemed to be in the possession of the
Agent or such Lender as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of the Obligations remain outstanding or any Lender has
any commitment hereunder. Whenever in this Agreement, any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in this
Agreement, the Notes and the other Loan Documents shall inure to the benefit of
the successors and permitted assigns of the Lenders or any of them.
11.05 Expenses. The Borrower agrees (a) to pay or reimburse
the Agent for all its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of, and
any amendment, supplement or modification to, this Agreement or any of the other
Loan Documents (including travel expenses relating to closing), and the
consummation of the transactions contemplated hereby and thereby,
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including, without limitation, the reasonable and customary fees and
disbursements of counsel to the Agent, (b) to pay or reimburse the Agent and
the Lenders for all their reasonable costs and expenses incurred in connection
with the enforcement (only from and after the occurrence of a Default or Event
of Default) or preservation of any rights under this Agreement and the other
Loan Documents, including without limitation, the reasonable fees and
disbursements of their counsel and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Agent and the Lenders harmless from any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of this Agreement or
any other Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement or any other Loan Documents, and (d) to pay, indemnify, and hold the
Agent and the Lenders harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement and the other Loan Documents or in any respect relating to the
transactions contemplated hereby or thereby, (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, however, that the Borrower shall have
no obligation hereunder with respect to Indemnified Liabilities arising from
(i) the willful misconduct or gross negligence of or the willful breach of the
Loan Documents by the party seeking indemnification but only after final the
adjudication of willful misconduct, gross negligence or breach of Loan
Documents by such Person, (ii) legal proceedings commenced against the Agent or
any Lender by any security holder or creditor thereof arising out of and based
upon rights afforded any such security holder or creditor solely in its
capacity as such, (iii) any taxes imposed upon the Agent or any Lender other
than the documentary, stamp, excise and similar taxes described in clause (c)
above or any tax resulting from any Regulatory Change, which tax would be
payable to Lenders by Borrower pursuant to Article IV hereof, or (iv) taxes
imposed and costs and expenses incurred as a result of a transfer or assignment
of any Note, participation or assignment of a portion of its rights. The
agreements in this subsection shall survive repayment of the Notes and all
other Obligations hereunder. The reimbursement obligations of Borrower
contained in this paragraph also do not include the obligation to reimburse
Lender or the Agent for any expenses and fees incurred in any dispute between
the Lenders and or the Agent arising out of the Loans.
11.06 Amendments. No amendment, modification or waiver of any
provision of this Agreement or any of the Loan Documents and no consent by the
Lenders to any departure therefrom by the Borrower shall be effective unless
such amendment, modification or waiver shall be in writing and signed by the
Borrower and the Agent, but only upon having received the written consent of
the Required Lenders, and the same shall then be effective only for the period
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and on the conditions and for the specific instances and purposes specified in
such writing; provided, however, that, no such amendment, modification or
waiver
(i) which changes, extends or waives any provision of Section
10.10 or this Section 11.06, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any
Obligation or the amount of the Total Revolving Credit Commitment,
fees, changes the definition of Required Lenders, which permits an
assignment by Borrower of its Obligations hereunder, which reduces the
required consent of Lenders provided hereunder, which increases,
decreases or extends the Revolving Credit Maturity Date or the
Revolving Credit Commitment of any Lender or which increases or
extends the Letter of Credit Facility or which waives any condition to
the making of any Loan shall be effective unless in writing and signed
by each of the Lenders; provided, however, the Required Lenders may in
their sole discretion waive any Default or Event of Default (other
than any Event of Default under Section 9.01(a), (b), (g) or (h) which
shall require the agreement of each Lender);
(ii) which releases a Guarantor shall be effective unless with
the written consent of each of the Lenders; or
(iii) which affects the rights, privileges, immunities or
indemnities of the Agent shall be effective unless in writing and
signed by the Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances, except as otherwise expressly provided herein. No delay
or omission on any Lender's or the Agent's part in exercising any right, remedy
or option shall operate as a waiver of such or any other right, remedy or
option or of any Default or Event of Default.
11.07 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.08 WAIVERS BY BORROWER. IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE LOANS,
ANY OF THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, OR ANY
INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN
THE BORROWER AND THE LENDERS OR THE AGENT, THE BORROWER AND EACH LENDER AND THE
AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY
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APPLICABLE LAW, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
11.09 Termination. The termination of this Agreement shall not
affect any rights of the Borrower, the Lenders or the Agent or any obligation
of the Borrower, the Lenders or the Agent, arising prior to the effective date
of such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Obligations arising prior to or after such termination have
been irrevocably paid in full. The rights granted to the Agent for the benefit
of the Lenders hereunder and under the other Loan Documents shall continue in
full force and effect, notwithstanding the termination of this Agreement, until
all of the Obligations have been paid in full after the termination hereof
(other than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) or the Borrower has
furnished the Lenders and the Agent with an indemnification satisfactory to the
Agent and each Lender with respect thereto. All representations, warranties,
covenants, waivers and agreements contained herein shall survive termination
hereof until payment in full of the Obligations unless otherwise provided
herein. Notwithstanding the foregoing, if after receipt of any payment
pursuant to the Loan Documents of all or any part of the Obligations, any
Lender is for any reason compelled to surrender such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force and the Borrower shall be liable to, and
shall indemnify and hold such Lender harmless for, the amount of such payment
surrendered until such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
11.10 Governing Law. ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF FLORIDA. THE BORROWER HEREBY SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF COLLECTION.
11.11 Indemnification. (a) In consideration of the execution and
delivery of this Agreement by the Agent and each Lender and the extension of
the Letter of Credit Commitments, the Swing Line and Revolving Credit
Commitments, the Borrower hereby indemnifies, exonerates and holds the Agent
and each Lender and each of their respective officers, directors, employees and
agents
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(collectively, the "Indemnified Parties") free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan or supported by any Letter of Credit,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the final adjudication of bad faith,
gross negligence or willful misconduct with respect to such Indemnified Party
or an officer, director, employee or agent of such Indemnified Party, and if
and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The provisions of this Section 11.11(a)
shall survive repayment of the Obligations, the occurrence of the Revolving
Credit Termination Date, and expiration or termination of this Agreement.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.11 or Section 7.15 against the indemnifying party, the
party entitled to such indemnification shall give written notice to the
indemnifying party promptly after the party entitled to indemnification
receives actual notice of any claim, action, suit, loss, cost, liability,
damage or expense incurred or instituted for which the indemnification is
sought. If requested by Borrower in writing, and so long as no Default or
Event of Default shall have occurred and be continuing, such indemnitee shall
contest at the expense of the Borrower the validity, applicability and/or
amount of such suit, action, or cause of action to the extent such contest may
be conducted in good faith on legally supportable grounds. If any lawsuit or
enforcement action is filed against any party entitled to the benefit of
indemnity under this Section 11.11, written notice thereof shall be given to
the indemnifying party as soon as practicable (and in any event within 20 days
after the service of the citation or summons). Notwithstanding the foregoing,
the failure so to notify the indemnifying party as provided in this Section
will relieve indemnifying party from liability hereunder only if and to the
extent that such failure results in the forfeiture by the indemnifying party of
any substantive rights or defenses. After such notice, if the indemnifying
party shall acknowledge in writing to the Indemnified Party that the
indemnifying party shall be obligated under the terms of its indemnity
hereunder in connection with such lawsuit or action, then, so long as no
Default or Event of Default shall occur and be continuing, the indemnifying
party shall be entitled, if it so elects, to take control of the defense and
investigation of such lawsuit or action and to employ and engage counsel of its
own choice reasonably acceptable to the Indemnified Party to handle and defend
the same, at the indemnifying party's cost, risk and
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expense, provided, however, that the indemnifying party and its counsel shall
proceed with diligence and in good faith with respect thereto. If (i) the
engagement of such counsel by the indemnifying party would present a conflict
of interest which would prevent such counsel from effectively defending such
action on behalf of the Indemnified Party, (ii) the defendants in, or targets
of, any such lawsuit or action include both the Indemnified Party and
indemnifying party, and the Indemnified Party reasonably concludes that there
may be legal defenses available to it that are different from or in addition to
those available to the indemnifying party, (iii) the indemnifying party fails
to assume the defense of the lawsuit or action or to employ counsel reasonably
satisfactory to such Indemnified Party, in either case in a timely manner, or
(iv) a Default or Event of Default shall occur and be continuing, then such
Indemnified Party may employ separate counsel to represent or defend it in any
such action or proceeding and the indemnifying party will pay the fees and
disbursements of such counsel, provided, however, that each indemnitee shall
endeavor, but shall not be obligated, in connection with any matter covered by
this Section 11.11 which also involves other indemnities, to use reasonable
efforts to avoid unnecessary duplication of efforts by counsel for all
indemnities and provided further, that in no event shall the Borrower be liable
for the fees and expenses of more than one separate firm for the Indemnified
Parties. The Indemnified Party shall cooperate (with all out of pocket costs
and expenses associated therewith to be paid by the indemnifying party) in all
reasonable respects with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the Indemnified Party may, at its
own cost (except as set forth in, and in accordance with, the foregoing
sentence), participate in the investigation, trial and defense of such lawsuit
or action and any appeal arising therefrom. If the indemnifying party has
acknowledged to the Indemnified Party its obligation to indemnify hereunder,
the Indemnified Party, so long as no Default or Event of Default shall have
occurred and be continuing, shall not settle such lawsuit or enforcement action
without the prior written consent of the indemnifying party and, if the
indemnifying party has not so acknowledged its obligation, the Indemnified
Party shall not settle such lawsuit or enforcement action without giving 20
days' prior written notice of such settlement and its terms to the indemnifying
party.
11.12 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As
used herein, the singular shall include the plural, and the masculine shall
include the feminine or a neutral gender, and vice versa, whenever the context
requires.
11.13 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or
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invalid as to one or more of the parties hereto, then such provision shall
remain in effect with respect to all parties, if any, as to whom such provision
is neither illegal nor invalid, and in any event all other provisions hereof
shall remain effective and binding on the parties hereto.
11.14 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
11.16 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under Florida law, shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at
all times been in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law,
the Borrower shall pay to the Agent an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been
paid if the Highest Lawful rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrower to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes
interest in excess of the Highest Lawful rate, then any such excess shall be
canceled automatically and, if previously paid, shall at such Lender's option
be applied to the outstanding amount of the Loans made hereunder or be refunded
to the Borrower. As used in this paragraph, the term "Highest Lawful Rate"
means the maximum lawful interest rate, if any, that at any time or from time
to time may be contracted for, charged, or received under the laws applicable
to such Lender which are presently in effect or, to the extent allowed by law,
under such applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now allow.
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11.17 Confidentiality. Except as provided in Section 7.01(e) hereof,
the Lenders shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with their customary procedures
for handling confidential information of this nature but may, in any event,
make disclosures reasonably required in connection with the contemplated
transfer or assignment of any of the Loans or participations or as required or
requested by any legal process or applicable regulatory agency or to its
attorneys or accountants in the ordinary course of business; provided that,
unless specifically prohibited by applicable law or court order, each Lender
shall use all reasonable efforts to notify the Borrower of any request under
legal process by any governmental agency or representative thereof for
disclosure of such information unless prohibited by such legal process but the
failure to notify Borrower shall not affect the Borrower's obligations to make
payment to the Lenders hereunder and under the Notes.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
REPUBLIC INDUSTRIES, INC.
WITNESS:
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
------------------------ Chief Legal Counsel
------------------------
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