EXHIBIT 10.42
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 16, 2001
among
AMN HEALTHCARE, INC.,
as Borrower,
AMN HEALTHCARE SERVICES, INC.,
and
CERTAIN SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N. A.,
as Agent,
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Syndication Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS........................................................1
1.1 Definitions........................................................1
1.2 Computation of Time Periods.......................................27
1.3 Accounting Terms..................................................27
SECTION 2 CREDIT FACILITY...................................................28
2.1 Revolving Loans...................................................28
2.2 Letter of Credit Subfacility......................................30
2.3 Swingline Loan Subfacility of the Revolver........................35
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITY......................37
3.1 Default Rate......................................................37
3.2 Extension and Conversion..........................................38
3.3 Prepayments.......................................................39
3.4 Termination and Reduction of Revolving Committed Amount...........40
3.5 Fees..............................................................41
3.6 Capital Adequacy..................................................42
3.7 Limitation on Eurodollar Loans....................................42
3.8 Illegality........................................................43
3.9 Requirements of Law...............................................43
3.10 Treatment of Affected Loans.......................................44
3.11 Taxes.............................................................45
3.12 Compensation......................................................47
3.13 Pro Rata Treatment................................................47
3.14 Sharing of Payments...............................................48
3.15 Payments, Computations, Etc.......................................49
3.16 Evidence of Debt..................................................50
SECTION 4 GUARANTY..........................................................52
4.1 The Guaranty......................................................52
4.2 Obligations Unconditional.........................................52
4.3 Reinstatement.....................................................54
4.4 Certain Additional Waivers........................................54
4.5 Remedies..........................................................54
4.6 Rights of Contribution............................................54
4.7 Guarantee of Payment; Continuing Guarantee........................55
SECTION 5 CONDITIONS........................................................56
5.1 Closing Conditions................................................56
5.2 Conditions to all Extensions of Credit............................58
SECTION 6 REPRESENTATIONS AND WARRANTIES....................................59
6.1 Financial Condition...............................................59
6.2 No Material Change................................................60
6.3 Organization and Good Standing....................................60
i
6.4 Power; Authorization; Enforceable Obligations.....................61
6.5 No Conflicts......................................................61
6.6 No Default........................................................61
6.7 Ownership.........................................................62
6.8 Indebtedness......................................................62
6.9 Litigation........................................................62
6.10 Taxes.............................................................62
6.11 Compliance with Law...............................................62
6.12 ERISA.............................................................63
6.13 Corporate Structure; Capital Stock, etc...........................64
6.14 Governmental Regulations, Etc.....................................64
6.15 Purpose of Loans and Letters of Credit............................65
6.16 Environmental Matters.............................................65
6.17 Intellectual Property.............................................66
6.18 Solvency..........................................................66
6.19 Investments.......................................................67
6.20 Business Locations................................................67
6.21 Disclosure........................................................67
6.22 No Burdensome Restrictions........................................67
6.23 Brokers' Fees.....................................................67
6.24 Labor Matters.....................................................67
6.25 Nature of Business................................................68
SECTION 7 AFFIRMATIVE COVENANTS.............................................68
7.1 Information Covenants.............................................68
7.2 Preservation of Existence and Franchises..........................71
7.3 Books and Records.................................................72
7.4 Compliance with Law...............................................72
7.5 Payment of Taxes and Other Indebtedness...........................72
7.6 Insurance.........................................................72
7.7 Maintenance of Property...........................................73
7.8 Performance of Obligations........................................73
7.9 Use of Proceeds...................................................73
7.10 Audits/Inspections................................................73
7.11 Financial Covenants...............................................74
7.12 Additional Guarantors.............................................74
7.13 Pledged Assets....................................................75
7.14 Environmental.....................................................75
SECTION 8 NEGATIVE COVENANTS................................................76
8.1 Indebtedness......................................................76
8.2 Liens.............................................................77
8.3 Nature of Business................................................77
8.4 Consolidation, Merger, Dissolution, etc...........................77
8.5 Asset Dispositions................................................78
8.6 Investments.......................................................79
8.7 Restricted Payments...............................................79
ii
8.8 Other Indebtedness, etc...........................................79
8.9 Transactions with Affiliates......................................80
8.10 Organizational Documents; Fiscal Year.............................80
8.11 Limitation on Restricted Actions..................................80
8.12 Ownership of Subsidiaries; Limitations on Parent..................81
8.13 Sale Leasebacks...................................................82
8.14 Capital Expenditures..............................................82
8.15 No Further Negative Pledges.......................................82
8.16 Limitation on Foreign Operations..................................82
SECTION 9 EVENTS OF DEFAULT.................................................82
9.1 Events of Default.................................................82
9.2 Acceleration; Remedies............................................85
SECTION 10 AGENCY PROVISIONS.................................................86
10.1 Appointment, Powers and Immunities................................86
10.2 Reliance by Agent.................................................86
10.3 Defaults..........................................................87
10.4 Rights as a Lender................................................87
10.5 Indemnification...................................................88
10.6 Non-Reliance on Agent and Other Lenders...........................88
10.7 Successor Agent...................................................88
SECTION 11 MISCELLANEOUS.....................................................89
11.1 Notices...........................................................89
11.2 Right of Set-Off; Adjustments.....................................90
11.3 Benefit of Agreement..............................................91
11.4 No Waiver; Remedies Cumulative....................................93
11.5 Expenses; Indemnification.........................................93
11.6 Amendments, Waivers and Consents..................................94
11.7 Counterparts......................................................95
11.8 Headings..........................................................96
11.9 Survival..........................................................96
11.10 Governing Law; Submission to Jurisdiction; Venue..................96
11.11 Severability......................................................97
11.12 Entirety..........................................................97
11.13 Binding Effect; Termination.......................................97
11.14 Confidentiality...................................................98
11.15 Source of Funds...................................................98
11.16 Regulation D......................................................99
11.17 Conflict..........................................................99
iii
SCHEDULES
Schedule 1.1A Consolidated EBITDA Adjustments
Schedule 1.1B Excluded Real Property
Schedule 1.1C Investments
Schedule 1.1D Existing Liens
Schedule 2.1(a) Lenders
Schedule 6.1(a) Financial Disclosures
Schedule 6.4 Required Consents, Authorizations, Notices and Filings
Schedule 6.9 Litigation
Schedule 6.12 ERISA
Schedule 6.13A Corporate Structure
Schedule 6.13B Subsidiaries
Schedule 6.17 Intellectual Property
Schedule 6.20(a) Real Properties
Schedule 6.20(b) Collateral Locations
Schedule 6.20(c) Chief Executive Offices/Principal Places of Business
Schedule 6.24 Labor Matters
Schedule 7.6 Insurance
Schedule 8.1 Indebtedness
Schedule 8.9 Affiliate Transactions
EXHIBITS
Exhibit 1.1A Form of Amended and Restated Pledge Agreement
Exhibit 1.1B Form of Amended and Restated Security Agreement
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(d) Form of Swingline Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 3.11(d) Form of Tax Exemption Certificate
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Acceptance
iv
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 16, 2001
(as amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), is by and among AMN HEALTHCARE, INC., a Nevada corporation (the
"Borrower"), AMN HEALTHCARE SERVICES, INC. (formerly known as AMN Holdings,
Inc.), a Delaware corporation (the "Parent"), the Subsidiary Guarantors (as
defined herein), the Lenders (as defined herein) and BANK OF AMERICA, N. A., as
Agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower is party to that certain Credit Agreement, dated as
of November 19, 1999, (as amended from time to time through the date hereof, the
"Existing Credit Agreement"), among the Parent, the Borrower, the Subsidiary
Guarantors, the lenders party thereto, Bank of America, N.A. , as Agent, Xxxxx
Fargo Bank, N.A. as Syndication Agent and Fleet National Bank, as Documentation
Agent;
WHEREAS, the parties to the Existing Credit Agreement have agreed to amend
the Existing Credit Agreement and for ease of reference have agreed to amend and
restate the Existing Credit Agreement in this Credit Agreement; and
WHEREAS, the Borrower, the Parent and the Subsidiary Guarantors have
requested, and the Lenders have agreed, to provide a revolving credit facility
to the Borrower in an aggregate amount of $50,000,000 (the "Credit Facility") on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acquisition", by any Person, means the acquisition by such Person
of all of the Capital Stock or all or substantially all of the Property of
another Person, whether or not involving a merger or consolidation with
such other Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding ten percent (10%) or more of the Capital Stock in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agent" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement, dated as
of November 16, 2001, between the Agent and the Borrower, as amended,
modified, restated or supplemented from time to time.
"Applicable Lending Office" means, for each Lender, the office of
such Lender (or of an Affiliate of such Lender) as such Lender may from
time to time specify to the Agent and the Borrower by written notice as
the office by which its Eurodollar Loans are made and maintained (and, for
purposes of Section 3.11, shall include any office at which its Base Rate
Loans are made and maintained).
"Applicable Percentage" for purposes of calculating the applicable
interest rate for any day for (i) Eurodollar Loans shall mean (a) 1.50% if
the Used Revolving Committed Amount is less than $25,000,000 and (b) 1.75%
if the Used Revolving Committed Amount is equal to or greater than
$25,000,000, (ii) Base Rate Loans shall mean (a) .50% if the Used
Revolving Committed Amount is less than $25,000,000 and (b) .75% if the
Used Revolving Committed Amount is equal to or greater than $25,000,000,
(iii) standby Letters of Credit shall mean (a) 1.50% if the Used Revolving
Committed Amount is less than $25,000,000 and (b) 1.75% if the Used
Revolving Committed Amount is equal to or greater than $25,000,000 and
(iv) trade Letters of Credit shall mean (a) .75% if the Used Revolving
Committed Amount is less than $25,000,000 and (b) .875% if the Used
Revolving Committed Amount is equal to or greater than $25,000,000.
"Application Period", in respect of any Asset Disposition, shall
have the meaning assigned to such term in Section 8.5.
"Asset Disposition" means any disposition (including pursuant to a
Sale and Leaseback Transaction) of any or all of the Property (including
without limitation the Capital Stock of a Subsidiary) of the Parent or any
Consolidated Party whether by sale, lease, transfer or otherwise, but
other than pursuant to any casualty or condemnation event.
2
"Asset Disposition Prepayment Event" means, with respect to any
Asset Disposition other than an Excluded Asset Disposition, the failure of
the Credit Parties to apply (or cause to be applied) the Net Cash Proceeds
of such Asset Disposition to Eligible Reinvestments during the Application
Period for such Asset Disposition.
"Bank of America" means Bank of America, N. A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or ordering the winding up or
liquidation of its affairs; or (ii) there shall be commenced against such
Person an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such Person
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to
the entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, creditor in possession, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or make any general assignment for the benefit of
creditors; or (iv) such Person shall be unable to, or shall admit in
writing its inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (0.5%) and (b) the Prime Rate for such day. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means (i) any Revolving Loan bearing interest at a
rate determined by reference to the Base Rate or (ii) any Swingline Loan.
"Borrower" means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina, San Diego,
California or New York, New York are authorized or required by law to
close, except that, when used in connection with a
3
Eurodollar Loan, such day shall also be a day on which dealings between
banks are carried on in Dollar deposits in London, England.
"Businesses" shall have the meaning assigned to such term in Section
6.16.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is required to be accounted for as a capital
lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a
limited liability company, membership interests and (v) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of (i) any Lender,
(ii) any domestic commercial bank of recognized standing having capital
and surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from Xxxxx'x is at least P-1 or the equivalent thereof (any such bank
being an "Approved Bank"), in each case with maturities of not more than
270 days from the date of acquisition, (c) commercial paper and variable
or fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition, (d) repurchase agreements
entered into by any Person with a bank or trust company (including any of
the Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations and (e) Investments,
classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
"Change in Control" means any of the following events: (i) the
Sponsor Entities shall fail to own beneficially, directly or indirectly,
(a) at least 20% of the outstanding Voting Stock of the Parent and (b) a
greater percentage of the outstanding Voting Stock of the Parent than the
percentage of such outstanding Voting Stock which any other
4
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of
the Securities Exchange Act) other than the Sponsor Entities (x) shall
have acquired beneficial ownership, directly or indirectly, of, or (y)
shall have acquired by contract or otherwise (or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of) control over, (ii) the Parent shall fail to own
directly 100% of the outstanding Capital Stock of the Borrower, or (iii)
Continuing Directors shall cease for any reason to constitute a majority
of the members of the board of directors of the Parent then in office. As
used herein, "beneficial ownership" shall have the meaning provided in
Rule 13d-3 of the Securities and Exchange Commission under the Securities
and Exchange Act of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Collateral" means a collective reference to all Property with
respect to which Liens in favor of the Agent are purported to be granted
pursuant to and in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement and such other documents executed and
delivered in connection with the attachment and perfection of the Agent's
security interests and liens arising thereunder, including without
limitation, UCC financing statements and patent and trademark filings.
"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender, (ii) with respect to the Issuing Lender(s), the
LOC Commitment and (iii) with respect to the Swingline Lender, the
Swingline Commitment.
"Commitment Percentage" means, for any Lender in respect of the
Revolving Commitment of such Lender, the percentage identified as such
Lender's Commitment Percentage for such Revolving Commitment on Schedule
2.1(a), as any such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Consolidated Capital Expenditures" means, as of any date for the
four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, all capital expenditures, as
determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include Eligible Reinvestments made with
proceeds of any Involuntary Disposition.
"Consolidated Cash Interest Expense" means, as of any date for the
four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a
5
consolidated basis, interest expense (including the interest component
under Capital Leases and the implied interest component under Synthetic
Leases), as determined in accordance with GAAP, but excluding non-cash
components of interest expense (e.g. amortization of deferred financing
fees).
"Consolidated Cash Taxes" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, the aggregate of all Federal, state and
foreign income taxes, as determined in accordance with GAAP, to the extent
the same are paid in cash.
"Consolidated EBITDA" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, the sum of (i) Consolidated Net Income,
plus (ii) an amount which, in the determination of Consolidated Net
Income, has been deducted for, without duplication, (A) interest expense,
(B) total Federal, state, local and foreign income, value added and
similar taxes, (C) depreciation and amortization expense and (D)
Consolidated Non-Cash Charges, all as determined in accordance with GAAP,
plus (iii) the Consolidated EBITDA Adjustment for the four fiscal quarter
period ending on such date.
"Consolidated EBITDA Adjustment" means the amount indicated on
Schedule 1.1A.
"Consolidated Net Income" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, net income (excluding extraordinary
items) after interest expense, income taxes and depreciation and
amortization, all as determined in accordance with GAAP.
"Consolidated Net Working Capital" means, as of any date with
respect to the Consolidated Parties on a consolidated basis, an amount
equal to (i) current assets, excluding cash and Cash Equivalents, minus
(ii) current liabilities other than current maturities of long term debt,
all as determined in accordance with GAAP. Consolidated Net Working
Capital as of any date may be a positive or negative number. Consolidated
Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"Consolidated Non-Cash Charges" means the non-cash component of any
item of expense other than (i) to the extent requiring an accrual or
reserve for future cash expenses, and (ii) write-offs of accounts
receivable.
"Consolidated Parties" means a collective reference to the Borrower
and its Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Scheduled Funded Debt Payments" means, as of any date
for the four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, the sum of all scheduled
payments of principal on Funded Indebtedness, as determined in accordance
with GAAP. For purposes of this definition, "scheduled
6
payments of principal" (i) shall be determined without giving effect to
any reduction of such scheduled payments resulting from the application of
any voluntary or mandatory prepayments made during the applicable period,
(ii) shall be deemed to include the implied principal component of
payments due on Capital Leases and Synthetic Leases and (iii) shall not
include any voluntary prepayments or mandatory prepayments required
pursuant to Section 3.3.
"Consolidated Total Assets" means, as of any date with respect to
the Consolidated Parties on a consolidated basis, total assets, as
determined in accordance with GAAP.
"Continue", "Continuation", "Continuing", and "Continued" shall
refer to the continuation pursuant to Section 3.2 hereof of a Eurodollar
Loan from one Interest Period to the next Interest Period.
"Continuing Directors" means during any period of up to 24
consecutive months commencing after the Closing Date, individuals who at
the beginning of such 24 month period were directors of the Parent
(together with any new director whose election by the Parent's board of
directors or whose nomination for election by the Parent's shareholders
was approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved).
"Convert", "Conversion", "Converting" and "Converted" shall refer to
a conversion pursuant to Section 3.2 or Sections 3.7 through 3.12,
inclusive, of a Base Rate Loan into a Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the
Agent's Fee Letter, the Collateral Documents and all other related
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto (in each case as the same may be amended,
modified, restated, supplemented, extended, renewed or replaced from time
to time), and "Credit Document" means any one of them.
"Credit Facility" shall have the meaning assigned to such term in
the recitals hereto.
"Credit Parties" means a collective reference to the Borrower and
the Guarantors, and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (i) all of
the obligations of the Credit Parties to the Lenders (including the
Issuing Lender(s) and the Swingline Lender) and the Agent, whenever
arising, under this Credit Agreement, the Notes, the Collateral Documents
or any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with respect
to any Credit Party, regardless of whether such interest is an allowed
claim under the Bankruptcy Code) and (ii) all liabilities and obligations,
whenever arising, owing from the Borrower to any Lender, or any Affiliate
of a Lender, arising under any Hedging Agreement.
7
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, as
determined by the Agent, (a) has failed to make a Loan or purchase a
Participation Interest required pursuant to the term of this Credit
Agreement within one Business Day of when due, (b) other than as set forth
in (a) above, has failed to pay to the Agent or any Lender an amount owed
by such Lender pursuant to the terms of this Credit Agreement within one
Business Day of when due, unless such amount is subject to a good faith
dispute or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or with respect to which (or with
respect to any of the assets of which) a receiver, trustee or similar
official has been appointed.
"Dollar", "Dollars" and "$" means dollars in lawful currency of the
United States.
"Domestic Subsidiary" means any direct or indirect Subsidiary of the
Parent which is incorporated or organized under the laws of any State of
the United States or the District of Columbia.
"Eligible Assets" means any assets or any business (or any
substantial part thereof) used or useful in the same or a substantially
similar line of business as the Borrower and its Subsidiaries were engaged
in on the Closing Date (or any reasonable extensions or expansions
thereof).
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender or any fund that invests in bank loans and is managed by an
investment advisor to a Lender; and (iii) any other Person approved by the
Agent and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 11.3, the
Borrower (such approval by the Agent or the Borrower not to be
unreasonably withheld or delayed (it being understood that disapproval of
a proposed assignee by the Borrower because an assignment to such assignee
may require the Credit Parties to incur increased costs or pay additional
amounts (including Taxes and Other Taxes) under this Credit Agreement or
any other Credit Documents shall be deemed to be a reasonable exercise of
the Borrower's rights hereunder) and such approval to be deemed given by
the Borrower if no objection is received by the assigning Lender and the
Agent from the Borrower within two (2) Business Days after confirmation
(such confirmation not to be unreasonably withheld or delayed) by an
Executive Officer of the Borrower of receipt of notice of such proposed
assignment by the assigning Lender); provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition)
of Eligible Assets and (ii) any Permitted Acquisition.
8
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws (including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Resource Conservation and Recovery Act of 1976,
the Toxic Substances Control Act, the Water Pollution Control Act, the
Clean Air Act and the Hazardous Materials Transportation Act),
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
"Equity Issuance" means any issuance by the Parent or any
Consolidated Party to any Person of (a) shares of its Capital Stock, (b)
any shares of its Capital Stock pursuant to the exercise of options or
warrants, (c) any shares of its Capital Stock pursuant to the conversion
of any debt securities to equity or (d) any options or warrants relating
to its Capital Stock. The term "Equity Issuance" shall not include any
Asset Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules
and regulations thereunder, all as the same may be in effect from time to
time. References to sections of ERISA shall be construed also to refer to
any successor sections.
"ERISA Affiliate" means an entity which is under common control with
the Parent or any Consolidated Party within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes the Parent
or any Consolidated Party and which is treated as a single employer under
Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of
a Reportable Event not otherwise subject to a waiver or the substantial
cessation of operations (within the meaning of Section 4062(e) of ERISA);
(ii) the withdrawal by the Parent or any Consolidated Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was
a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan; (iii) the
distribution of a notice of intent to terminate or the actual termination
of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the
institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (v) any event or condition
which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan;
(vi) the complete or partial withdrawal of the Parent or any Consolidated
Party or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA exist
with respect to any Plan; or (viii) the adoption of an amendment to any
Plan requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
9
"Eurodollar Loan" means any Loan that bears interest at a rate based
upon the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate for such Eurodollar
Loan for such Interest Period by (b) 1 minus the Eurodollar Reserve
Requirement for such Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum
rate at which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) by member banks
of the Federal Reserve System against "Eurocurrency liabilities" (as such
term is used in Regulation D). Without limiting the effect of the
foregoing, the Eurodollar Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks with respect to
(i) any category of liabilities which includes deposits by reference to
which the Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar
Loans. The Adjusted Eurodollar Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurodollar Reserve
Requirement.
"Event of Default" shall have the meaning assigned to such term in
Section 9.1.
"Excess Cash Flow" means, with respect to any fiscal year period of
the Consolidated Parties on a consolidated basis, an amount equal to (a)
Consolidated EBITDA minus (b) Consolidated Capital Expenditures minus (c)
Consolidated Cash Interest Expense minus (d) to the extent not taken into
account in the calculation of Excess Cash Flow for any prior fiscal year,
Federal, state and other income taxes accrued or paid (without
duplication) by the Parent and the Consolidated Parties on a consolidated
basis minus (e) Consolidated Scheduled Funded Debt Payments minus (f)
increases in Consolidated Net Working Capital minus (g) the cash amount of
all Restricted Payments made pursuant to clause (f) of Section 8.7 minus
(h) the cash amount of all Investments of the types referred to in clauses
(ix) and (xiii) of the definition of "Permitted Investments" set forth in
this Section 1.1) plus (i) decreases in Consolidated Net Working Capital.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals hereto.
"Excess Proceeds" shall have the meaning assigned to such term in
Section 7.6(b).
"Excluded Asset Disposition" means, with respect to the Parent or
any Consolidated Party, (i) the sale of inventory in the ordinary course
of such Person's business, (ii) the sale or disposition of machinery and
equipment no longer used or useful in the conduct of such Person's
business, (iii) any Equity Issuance by such Person, (iv) any Involuntary
Disposition by such Person, (v) any sale, lease, transfer or other
disposition of Property by
10
such Person to a Credit Party other than the Parent, provided that the
Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Agent may reasonably request so as to
cause the Credit Parties to be in compliance with the terms of Section
7.13 after giving effect to such transaction and (vi) subject to the terms
of Section 8.6 and the definition of "Permitted Investments" set forth in
this Section 1.1, any sale, lease, transfer or other disposition of
Property by such Person to a Consolidated Party that is not a Credit
Party.
"Excluded Property" means with respect to any Credit Party,
including any Person that becomes a Credit Party after the Closing Date as
contemplated by Section 7.12, (i) any owned or leased real or personal
Property of such Credit Party which is located outside of the United
States, (ii) any owned real Property of such Credit Party which has a net
book value of less than $50,000, provided that the aggregate net book
value of all real Property of all of the Credit Parties excluded pursuant
to this clause (ii) shall not exceed $250,000, (iii) any leased real
Property of such Credit Party which, at the written request of the
Borrower, the Agent has agreed in writing in its sole discretion is not
material, (iv) any leased personal Property of such Credit Party, (v) any
personal Property of such Credit Party (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (A)
governed by the Uniform Commercial Code or (B) effected by appropriate
evidence of the Lien being filed in either the United States Copyright
Office or the United States Patent and Trademark Office, (vi) any Property
of such Credit Party which, subject to the terms of Section 8.11 and
Section 8.15, is subject to a Lien of the type described in clause (vii)
of the definition of "Permitted Liens" set forth in Section 1.1 pursuant
to documents which prohibit such Credit Party from granting any other
Liens in such Property and (vii) the leased real property of the Borrower
described on Schedule 1.1B.
"Executive Officer" of any Person means any of the chief executive
officer, chief operating officer, president, chief financial officer or
treasurer of such Person.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent (in its individual
capacity) on such day on such transactions as determined by the Agent.
"Fees" means all fees payable pursuant to Section 3.5.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal
quarter of the Consolidated Parties for the four fiscal quarter period
ending on such date with respect to the Consolidated Parties on a
consolidated basis, the ratio of (a) the sum of (i) Consolidated
11
EBITDA for such period minus (ii) Consolidated Capital Expenditures for
such period minus (iii) Consolidated Cash Taxes for such period minus (iv)
the cash amount of all Restricted Payments made pursuant to clauses (f)
and (k) of Section 8.7 to (b) the sum of (i) Consolidated Cash Interest
Expense for such period plus (ii) Consolidated Scheduled Funded Debt
Payments for such period (other than Consolidated Scheduled Funded Debt
Payments for any period prior to the Closing Date).
"Foreign Subsidiary" means any direct or indirect Subsidiary of the
Parent which is not a Domestic Subsidiary.
"Fully Satisfied" means, with respect to the Credit Party
Obligations as of any date, that, as of such date, (a) all principal of
and interest accrued to such date which constitute Credit Party
Obligations shall have been paid in full in cash, (b) all fees, expenses
and other amounts then due and payable which constitute Credit Party
Obligations shall have been paid in cash, (c) all outstanding Letters of
Credit shall have been (i) terminated, (ii) fully cash collateralized or
(iii) secured by one or more letters of credit on terms and conditions,
and with one or more financial institutions, reasonably satisfactory to
the Issuing Lender and (d) the Commitments shall have been expired or
terminated in full.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness
of the types referred to in clauses (e), (f), (g), (i) and (m) of the
definition of "Indebtedness" set forth in this Section 1.1, (b) all Funded
Indebtedness of others of the type referred to in clause (a) above secured
by (or for which the holder of such Funded Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed
(or, if less, the aggregate net book value of all Property securing such
Funded Indebtedness of others), (c) all Guaranty Obligations of such
Person with respect to Funded Indebtedness of the type referred to in
clause (a) above of another Person and (d) Funded Indebtedness of the type
referred to in clause (a) above of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer to
the extent that such Funded Indebtedness is recourse to such Person.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section
1.3 (except, in respect of Synthetic Leases, as otherwise treated herein).
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantors" means a collective reference to the Parent and each of
the Subsidiary Guarantors, together with their successors and permitted
assigns, and "Guarantor " means any one of them.
12
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security
therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease
or purchase Property, securities or services primarily for the purpose of
assuring the holder of such Indebtedness, or (iv) to otherwise assure or
hold harmless the holder of such Indebtedness against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject to
any limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness actually guaranteed by such Guaranty Obligation.
"Hedging Agreements" means any interest rate protection agreement or
foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made,
(c) all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all
obligations of such Person issued or assumed as the deferred purchase
price of Property or services purchased by such Person (other than trade
debt incurred in the ordinary course of business) which would appear as
liabilities on a balance sheet of such Person, (e) all obligations of such
Person under take-or-pay or similar arrangements or under commodities
agreements, (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds
of production from, Property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person with respect to Indebtedness of another Person,
(h) the implied principal component of all obligations of such Person
under Capital Leases, (i) all obligations of such Person under Hedging
Agreements, (j) the maximum amount of all performance and standby letters
of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (k) all preferred Capital Stock
issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration (other than as a result of
a Change in Control or an Asset Disposition that does not in fact result
in a redemption of such preferred Capital Stock) at any time prior to the
Maturity Date, (l) the principal portion of all obligations of such Person
under Synthetic Leases, (m) the Indebtedness of any partnership or
unincorporated joint venture in which
13
such Person is a general partner or a joint venturer to the extent that
such Indebtedness is recourse to such Person and (n) the aggregate amount
of uncollected accounts receivable of such Person subject at such time to
a sale of receivables (or similar transaction) regardless of whether such
transaction is effected without recourse to such Person or in a manner
that would not be reflected on the balance sheet of such Person in
accordance with GAAP.
"Indemnified Party" shall have the meaning assigned to such term in
Section 11.5(b).
"Initial Public Offering" shall mean the initial public offering of
common Capital Stock of the Parent in an aggregate amount of not less than
$125,000,000 in net cash proceeds.
"Interbank Offered Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Page 3750 (or any
successor page) of the Dow Xxxxx Market Service as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period. If for any reason such rate is
not available, the term "Interbank Offered Rate" shall mean, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
"Interest Payment Date" means (a) as to Base Rate Loans (including
Swingline Loans which are Base Rate Loans), each March 31, June 30,
September 30 and December 31, the date of repayment of principal of such
Loan and the Maturity Date, and (b) as to Eurodollar Loans, the last day
of each applicable Interest Period, the date of repayment of principal of
such Loan and the Maturity Date, and in addition where the applicable
Interest Period for a Eurodollar Loan is greater than three months, then
also the date three months from the beginning of the Interest Period and
each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of one,
two, three or six months' duration, as the Borrower may elect, commencing,
in each case, on the date of the borrowing (including continuations and
conversions thereof); provided, however, (a) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that where the next
succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (b) no Interest Period shall extend
beyond the Maturity Date and (c) where an Interest Period begins on a day
for which there is no numerically corresponding day in
14
the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than equipment, inventory and supplies in the
ordinary course of business and other than any acquisition of assets
constituting a Consolidated Capital Expenditure), Capital Stock, bonds,
notes, debentures, partnership, joint ventures or other ownership
interests or other securities of such other Person or (b) any deposit
with, or advance, loan or other extension of credit to, such Person (other
than deposits made in connection with the purchase of equipment inventory,
services, leases or supplies in the ordinary course of business) or (c)
any other capital contribution to or investment in such Person, including,
without limitation, any Guaranty Obligations (including any support for a
letter of credit issued on behalf of such Person) incurred for the benefit
of such Person and any Asset Disposition to such Person for consideration
less than the fair market value of the Property disposed in such
transaction, but excluding any Restricted Payment to such Person.
Investments which are capital contributions or purchases of Capital Stock
which have a right to participate in the profits of the issuer thereof
shall be valued at the amount actually contributed or paid to purchase
such Capital Stock as of the date of such contribution or payment.
Investments which are loans, advances, extensions of credit or Guaranty
Obligations shall be valued at the principal amount of such loan, advance
or extension of credit outstanding as of the date of determination or, as
applicable, the principal amount of the loan or advance outstanding as of
the date of determination actually guaranteed by such Guaranty Obligation.
"Involuntary Disposition" shall have the meaning assigned to such
term in Section 7.6(b).
"Issuing Lender" means (i) Bank of America, in its capacity as
issuer of any Letter of Credit or (ii) if Bank of America shall be
unwilling to issue any Letter of Credit in the form requested by the
Borrower in accordance with the terms of Section 2.2, such other Lender
reasonably acceptable to the Agent selected by the Borrower from time to
time to issue such Letter of Credit.
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12 hereto, executed and delivered by a new Guarantor in
accordance with the provisions of Section 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Lending Party" shall have the meaning assigned to such term in
Section 11.14.
"Letter of Credit" means any letter of credit issued by the
applicable Issuing Lender for the account of the Borrower in accordance
with the terms of Section 2.2.
15
"Leverage Ratio" means, as of the end of any fiscal quarter of the
Consolidated Parties for the four fiscal quarter period ending on such
date with respect to the Consolidated Parties on a consolidated basis, the
ratio of (a) Funded Indebtedness of the Consolidated Parties on a
consolidated basis on the last day of such period to (b) Consolidated
EBITDA for such period.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans (or a portion of any
Revolving Loan bearing interest at the Adjusted Base Rate or the Adjusted
Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar Loan)
and/or the Swingline Loans, individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender(s) to
issue Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term
in Section 2.2.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for
(i) the rights and obligations of the parties concerned or at risk or (ii)
any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(ii) the aggregate amount of all drawings under Letters of Credit honored
by the Issuing Lender(s) but not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the
condition (financial or otherwise), operations, business, assets,
liabilities or prospects of the Parent and the Consolidated Parties taken
as a whole, (ii) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or (iii) the
material rights and remedies of the Agent and the Lenders under the Credit
Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic
16
substances, materials or wastes, defined or regulated as such in or under
any Environmental Laws, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means November 16, 2004.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer
Plan) which the Parent or any Consolidated Party or any ERISA Affiliate
and at least one employer other than the Parent, any Consolidated Party or
any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate proceeds paid in cash or
Cash Equivalents received by the Parent or any Consolidated Party in
respect of any Asset Disposition or Involuntary Disposition, net of (a)
direct costs (including, without limitation, legal, accounting, consulting
and investment banking fees, and sales commissions), (b) taxes paid or
payable as a result thereof and (c) the amount of liabilities, if any,
which are required to be repaid concurrently and in connection with the
consummation of such Asset Disposition or Involuntary Disposition out of
the proceeds thereof; it being understood that "Net Cash Proceeds" shall
include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by
the Parent or any Consolidated Party in any Asset Disposition or
Involuntary Disposition.
"Note" or "Notes" means the Revolving Notes and/or the Swingline
Note, individually or collectively, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11(b).
"Parent" means the Person identified as such in the heading hereof,
together with any permitted successors and assigns.
17
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2, in Swingline Loans as provided in Section 2.3(b)(iii) or in
any Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means an Acquisition by the Borrower or any
Subsidiary of the Borrower, provided that (i) the Property acquired (or
the Property of the Person acquired) in such Acquisition is used or useful
in the same or a similar line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date (or any reasonable
extensions or expansions thereof), (ii) the Agent shall have received all
items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section 7.12 and/or
Section 7.13, (iii) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition, (iv)
the Borrower shall have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such Acquisition on
a Pro Forma Basis, no Default or Event of Default would exist as the
result of a violation of Section 7.11(a) or Section 7.11(b), (v) the
representations and warranties made by the Credit Parties in any Credit
Document shall be true and correct in all material respects at and as if
made as of the date of such Acquisition (after giving effect thereto)
except to the extent such representations and warranties expressly relate
to an earlier date, (vi) if such transaction involves the purchase of an
interest in a partnership between the Borrower (or a Subsidiary of the
Borrower) as a general partner and entities unaffiliated with the Borrower
or such Subsidiary as the other partners, such transaction shall be
effected by having such equity interest acquired by a holding company
directly or indirectly wholly-owned by the Borrower newly formed for the
sole purpose of effecting such transaction and (vii) the total Qualifying
Consideration for any such Acquisition shall not exceed an amount equal to
(A) $25,000,000 plus (B) 50% of Excess Cash Flow for each fiscal year
ended after the Closing Date minus (C) the aggregate amount of Qualifying
Consideration paid with respect to all Acquisitions occurring after the
Closing Date.
"Permitted Asset Disposition" means (i) any Asset Disposition
permitted by Section 8.5 and (ii) any Excluded Asset Disposition.
"Permitted Investments" means Investments which are (i) cash and
Cash Equivalents; (ii) accounts receivable created, acquired or made by
the Parent or any Consolidated Party in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
(iii) Investments consisting of Capital Stock, obligations, securities or
other property received by the Parent or any Consolidated Party in
settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors or in connection with a work-out or
reorganization; (iv) Investments existing as of the Closing Date and set
forth in Schedule 1.1C; (v) rental deposits made for the benefit of
officers, employees or agents; (vi) advances or loans to directors,
officers, employees, agents, customers or suppliers that do not exceed
$500,000 in the aggregate at any one time
18
outstanding; (vii) loans to employees to finance the purchase of newly
issued or treasury Capital Stock in the Parent; (viii) Investments in any
Credit Party other than the Parent; (ix) Investments in Foreign
Subsidiaries in an aggregate amount not to exceed $10,000,000; (x) to the
extent constituting Investments, transactions permitted under Section 8.7;
(xi) Permitted Acquisitions; (xii) Investments not constituting cash or
Cash Equivalents received as consideration for any Asset Disposition
permitted under Section 8.5; and (xiii) other Investments not to exceed
$25,000,000 (less the aggregate amount of Investments of the type set
forth in clause (ix) above) in the aggregate at any time outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Agent to secure the Credit Party
Obligations;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or Liens
for taxes being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed
by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens (a)
secure only amounts not yet due and payable or, if due and payable, are
either unfiled and no other action has been taken to enforce the same or
(b) are being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet subject
to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by the Parent or any Consolidated Party in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids, leases,
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall have been discharged within 30
days after the expiration of any such stay;
(vi) easements, rights-of-way, licenses, covenants, restrictions
(including zoning restrictions), minor defects or irregularities in title
and other similar charges or encumbrances, in the aggregate, not, in any
material respect, impairing the use of the encumbered Property in the
operations of the Consolidated Parties;
19
(vii) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such
Person permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days after the
acquisition thereof;
(viii) Liens securing Indebtedness permitted by Section 8.1(g);
(ix) leases or subleases granted to others not interfering in any
material respect with the business of the Parent or any
Consolidated Party;
(x) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Credit Agreement;
(xi) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xii) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.6;
(xiii) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(xiv) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(xv) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses; and
(xvi) Liens existing as of the Closing Date and set forth on
Schedule 1.1D; provided that (a) no such Lien shall at any time be
extended to or cover any Property other than the Property subject thereto
on the Closing Date and (b) the principal amount of the Indebtedness
secured by such Liens shall not be increased.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which the Parent
or any Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
20
"Pledge Agreement" means the amended and restated pledge agreement
dated as of the Closing Date in the form of Exhibit 1.1A executed in favor
of the Agent by each of the Credit Parties, as amended, modified, restated
or supplemented from time to time.
"Prime Rate" means the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be
the lowest rate of interest charged by Bank of America to its customers.
"Principal Office" means the principal office of Bank of America,
presently located at Charlotte, North Carolina.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
principles set forth in the second paragraph of Section 1.3), in respect
of a proposed transaction, compliance with each of the financial covenants
set forth in Section 7.11(a) and Section 7.11(b), that such transaction
shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the Agent has
received the Required Financial Information (such period in respect of any
transaction being referred to in this definition as the "Pro Forma Period"
for such transaction). As used herein, "transaction" shall mean (i) any
Asset disposition or (ii) any Acquisition as referred to in the definition
of "Permitted Acquisition" set forth in this Section 1.1. In connection
with any calculation of the Leverage Ratio and the Fixed Charge Coverage
Ratio upon giving effect to a transaction on a Pro Forma Basis:
(a) for purposes of any such calculation in respect of any
Asset Disposition, (i) income statement items (whether positive or
negative) and capital expenditures attributable to the Property
disposed of shall be excluded and (ii) any Indebtedness which is
retired in connection with such transaction shall be excluded and
deemed to have been retired as of the first day of the applicable
period; and
(b) for purposes of any such calculation in respect of any
Acquisition as referred to in the definition of "Permitted
Acquisition" set forth in this Section 1.1, (i) any Indebtedness
incurred by any Consolidated Party in connection with such
transaction (A) shall be deemed to have been incurred as of the
first day of the applicable period and (B) if such Indebtedness has
a floating or formula rate, shall have an implied rate of interest
for the applicable period for purposes of this definition determined
by utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination, (ii)
income statement items (whether positive or negative) attributable
to the Person or Property acquired shall be included beginning as of
the first day of the applicable period, provided, however, that
income statement items attributable to such Person or Property shall
not be included in any calculation of Consolidated Net Income or
Consolidated EBITDA unless the applicable income statement for such
Person or Property is a Qualifying Financial Statement which shall
have been delivered to the Agent, and (iii) pro forma adjustments
may be included to the
21
extent that such adjustments (A) are made in the good faith judgment
of the management of the Consolidated Parties and (B) give effect to
events that are (1) directly attributable to such transaction, (2)
expected to have a continuing impact on the Consolidated Parties,
(3) verifiable and supportable and (4) realizable within 180 days
following the consummation of the related Acquisition (or later if
such additional time is acceptable to the Agent).
"Pro Forma Compliance Certificate" means a certificate of an
Executive Officer of the Borrower delivered to the Agent in connection
with (i) any Asset Disposition or (ii) any Acquisition as referred to in
the definition of "Permitted Acquisition" set forth in this Section 1.1,
as applicable, containing reasonably detailed calculations, upon giving
effect to the applicable transaction on a Pro Forma Basis, of (a) the
Leverage Ratio and the Fixed Charge Coverage Ratio as of the most recent
fiscal quarter end preceding the date of the applicable transaction with
respect to which the Agent shall have received the Required Financial
Information and (b) in the case of any Acquisition, Consolidated EBITDA
for the four fiscal-quarter period ending as of the most recent fiscal
quarter end preceding the date of such transaction with respect to which
the Agent has received the Required Financial Information (such
calculations of Consolidated EBITDA to include a break-down in reasonable
detail of any pro forma adjustments).
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Qualifying Consideration" shall mean, with respect to any
Acquisition, all cash consideration paid by the Parent and the
Consolidated Parties, other than consideration consisting of (A) Capital
Stock of the Parent issued to the seller of the Capital Stock or Property
acquired in such Acquisition, (B) the proceeds of any Equity Issuance by
the Parent consummated in connection with and for the purpose of financing
such Acquisition, (C) the proceeds of Subordinated Indebtedness issued by
the Parent pursuant to Section 8.1(f) and (D) the principal amount of any
assumed Indebtedness.
"Qualifying Financial Statements" means, in respect of the Person or
Property acquired in any Acquisition, a consolidated balance sheet and
income statement of such Person or Property as of, and for the four
quarter period ending on, the last day of the most recently ended fiscal
year of such Person or Property preceding the date of such Acquisition,
which financial statements either (i) shall have been audited by
independent certified public accountants of recognized national standing
reasonably acceptable to the Agent and whose opinion shall be to the
effect that such financial statements have been prepared in accordance
with generally accepted accounting principles in the United States and
shall not be limited as to the scope of the audit or qualified as to the
status of the Person or Property acquired as a going concern or any other
material qualifications or exceptions or (ii) shall be reasonably
acceptable to the Agent.
"Real Properties" shall have the meaning assigned to such term in
Section 6.16.
"Register" shall have the meaning assigned to such term in Section
11.3(c).
22
"Regulation D, T, U, or X" means Regulation D, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"Related Parties" means, with respect to any Sponsor, a collective
reference to (i) each Person which is a controlling stockholder or partner
of such Sponsor, (ii) each Person at least 80% of whose Voting Stock is
owned by such Sponsor, directly or indirectly, (iii) each trust,
corporation, partnership or other entity, the controlling beneficiaries,
stockholders, partners or owners of which, directly or indirectly, consist
of such Sponsor and/or such other Persons referred to in the preceding
clauses (i) or (ii) and/or in the succeeding clause (v), (iv) each partner
or stockholder of such Sponsor as of the Closing Date who acquires any
assets or Voting Stock of the Parent pursuant to a general distribution by
such Sponsor to each of its partners or stockholders and (v) each officer
or director of such Sponsor.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
"Required Financial Information" means (i) the financial statements
of the Consolidated Parties required to be delivered pursuant to Section
7.1(a) or (b) for the most recently completed fiscal period or quarter
end, and (ii) the certificate of an Executive Officer of the Borrower
required by Section 7.1(c) to be delivered with the financial statements
described in clause (i) above.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or to which any of its material
property is subject.
"Requisite Lenders" means, at any time, two or more Lenders (other
than Defaulting Lenders holding in the aggregate at least a majority of
(i) the Revolving Commitments (and Participation Interests therein) or
(ii) if the Revolving Commitments have been terminated, the outstanding
Revolving Loans, LOC Obligations and Participation Interests (including
the Participation Interests of the applicable Issuing Lender in any
Letters of Credit issued by such Issuing Lender and the Participation
Interests of the Swingline Lender in any Swingline Loans).
"Restricted Payment" by the Parent or any Consolidated Party means
(i) any dividend or other payment or distribution, direct or indirect, on
account of any shares of any class of Capital Stock of such Person, now or
hereafter outstanding (including without limitation any payment in
connection with any dissolution, merger, consolidation or disposition
involving such Person), or to the holders, in their capacity as such, of
any shares of any class of Capital Stock of such Person, now or hereafter
outstanding (other than dividends or distributions payable in Capital
Stock of the applicable Person and other than
23
dividends or distributions payable (directly or indirectly through
Subsidiaries) to any Credit Party other than the Parent), (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of
Capital Stock of such Person, now or hereafter outstanding, (iii) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
Capital Stock of such Person, now or hereafter outstanding (excluding the
issuance of Capital Stock by such Person), (iv) any payment or prepayment
of principal of, premium, if any, or interest on, including any
redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Subordinated Indebtedness and (v) in the case
of any Consolidated Party, any loan or advance to the Parent.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding of up to such Lender's Commitment Percentage of the Revolving
Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of Section 2.1(a), (ii) to purchase Participation Interests in
Letters of Credit in accordance with the provisions of Section 2.2(c) and
(iii) to purchase Participation Interests in the Swingline Loans in
accordance with the provisions of Section 2.3(b)(iii).
"Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrower in favor of each Lender provided pursuant to Section 2.1(e)
and evidencing the Revolving Loans of such Lender, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, restated, supplemented, extended, renewed or replaced from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., or any successor or assignee of the business
of such division in the business of rating securities.
"Sale and Leaseback Transaction" means, with respect to the Parent
or any Consolidated Party, any arrangement pursuant to which such Person,
directly or indirectly, becomes liable as lessee, guarantor or other
surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any Property (a) which such Person has sold or transferred (or
is to sell or transfer) to a Person which is not a Credit Party or (b)
which such Person intends to use for substantially the same purpose as any
other Property which has been sold or transferred (or is to be sold or
transferred) by such Person to another Person which is not a Credit Party
in connection with such lease.
"Securities Act" means the Securities Act of 1933, as amended, and
all regulations issued pursuant thereto.
24
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, and all regulations issued pursuant thereto.
"Security Agreement" means the amended and restated security
agreement dated as of the Closing Date in the form of Exhibit 1.1B to be
executed in favor of the Agent by each of the Credit Parties, as amended,
modified, restated or supplemented from time to time.
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer
Plan.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to pay its
debts and other liabilities, contingent obligations and other commitments
as they mature in the normal course of business, (ii) such Person does not
intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature
in their ordinary course, (iii) such Person is not engaged in a business
or a transaction, and is not about to engage in a business or a
transaction, for which such Person's Property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is
to engage, (iv) the fair value of the Property of such Person on a going
concern basis is greater than the fair value of the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person and (v) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it
is intended that such liabilities will be computed at the amount which, in
light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Sponsor Entity" means any Person that is (i) a Sponsor or (ii) a
Related Party.
"Sponsors" means a collective reference to HWH Capital Partners,
L.P., HWP Capital Partners II, L.P., HWH Nightingale Partners, L.P., HWP -
II Nightingale Partners, L.P. and Xxxx Wheat & Partners, L.P., together
with their successors and permitted assigns, and "Sponsor" means any one
of them.
"Standby Letter of Credit Fee" shall have the meaning assigned to
such term in Section 3.5(c)(i).
"Subordinated Indebtedness" means Indebtedness of the Parent, the
Borrower or any Subsidiary of the Borrower which (i) is subordinated to
the Credit Party Obligations in a manner reasonably satisfactory to the
Agent and (ii) has a maturity date which is at least six months after the
Maturity Date.
25
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at such
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at such
time owned by such Person directly or indirectly through Subsidiaries, and
(b) any partnership, association, joint venture or other entity of which
such Person directly or indirectly through Subsidiaries owns at such time
more than 50% of the Capital Stock.
"Subsidiary Guarantor" means each of the Persons identified as a
"Subsidiary Guarantor" on the signature pages hereto and each Person which
may hereafter execute a Joinder Agreement pursuant to Section 7.12,
together with their successors and permitted assigns, and "Subsidiary
Guarantor" means any one of them.
"Swingline Commitment" means the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time
outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.3(a).
"Swingline Lender" means Bank of America.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans provided pursuant
to Section 2.3(d), as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in Section
3.11(a).
"Trade Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(c)(ii).
"Unused Fee" shall have the meaning assigned to such term in Section
3.5(b).
"Unused Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.5(b).
26
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount exceeds
(b) the daily average sum for such period of (i) the outstanding aggregate
principal amount of all Revolving Loans (but not including any Swingline
Loans) plus (ii) the outstanding aggregate principal amount of all LOC
Obligations.
"Used Revolving Committed Amount" means, as of any date, the sum of
(i) the outstanding aggregate principal amount of all Revolving Loans plus
(ii) the outstanding aggregate principal amount of all LOC Obligations.
"Voting Stock" means, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence
of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a
contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Voting
Stock is at the time owned by the Borrower directly or indirectly through
other Persons 100% of whose Voting Stock is at the time owned, directly or
indirectly, by the Borrower.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Agent hereunder
shall be prepared, in accordance with GAAP applied on a consistent basis;
provided, however, that calculations of the implied principal component of all
obligations under any Synthetic Lease or the implied interest component of any
rent paid under any Synthetic Lease shall be made by the Borrower in accordance
with accepted financial practice and consistent with the terms of such Synthetic
Lease. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements of the Consolidated Parties delivered
pursuant to Section 7.1 (or, prior to the delivery of the first financial
statements pursuant to Section 7.1, consistent with the financial statements as
at December 31, 2000); provided, however, if (a) the Credit Parties shall object
to determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Agent or the Requisite Lenders shall so object in
writing within 60 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Credit Parties to the Lenders as to which no such
objection shall have been made.
27
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made under the financial covenants set forth in
Section 7.11 (including without limitation for purposes of the definition of
"Pro Forma Basis" set forth in Section 1.1), (a) following consummation of any
Asset Disposition (i) income statement items (whether positive or negative) and
capital expenditures attributable to the Property disposed of shall be excluded
to the extent relating to any period occurring prior to the date of the
transaction for which such calculation is determined and (ii) Indebtedness which
is retired shall be excluded and deemed to have been retired as of the first day
of the applicable period and (b) following consummation of any Acquisition (i)
income statement items (whether positive or negative) attributable to the Person
or Property acquired shall, to the extent not otherwise included in such income
statement items for the Consolidated Parties in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.1, be included to the
extent relating to any period applicable in such calculations, provided,
however, that income statement items attributable to such Person or Property
shall not be included in any calculation of Consolidated Net Income or
Consolidated EBITDA unless the applicable income statement for such Person or
Property is a Qualifying Financial Statement which shall have been delivered to
the Agent, (ii) Indebtedness of the Person or Property acquired shall be deemed
to have been incurred as of the first day of the applicable period and (iii) pro
forma adjustments may be included to the extent that such adjustments (A) are
made in the good faith judgment of the management of the Consolidated Parties
and (B) give effect to events that are (1) directly attributable to such
transaction, (2) expected to have a continuing impact on the Consolidated
Parties, (3) verifiable and supportable and (4) realizable within 180 days
following the consummation of the related Acquisition (or later if such
additional time is acceptable to the Agent).
SECTION 2
CREDIT FACILITY
2.1 REVOLVING LOANS.
(a) Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each Lender severally agrees to make available to the Borrower
such Lender's Commitment Percentage of revolving credit loans requested by
the Borrower in Dollars ("Revolving Loans") from time to time from the
Closing Date until the Maturity Date, or such earlier date as the
Revolving Commitments shall have been terminated as provided herein;
provided, however, that the sum of the aggregate outstanding principal
amount of Revolving Loans shall not exceed FIFTY MILLION DOLLARS
($50,000,000) (as such aggregate maximum amount may be reduced from time
to time as provided in Section 3.4, the "Revolving Committed Amount");
provided, further, (A) with regard to each Lender individually, such
Lender's outstanding Revolving Loans shall not exceed such Lender's
Commitment Percentage of the Revolving Committed Amount, and (B) the sum
of the aggregate outstanding principal amount of Revolving Loans plus LOC
Obligations plus Swingline Loans shall not exceed the Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request; provided,
28
however, that no more than 6 Eurodollar Loans which are Revolving Loans
shall be outstanding hereunder at any time (it being understood that, for
purposes hereof, Eurodollar Loans with different Interest Periods shall be
considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Eurodollar Loan with a single Interest
Period). Revolving Loans hereunder may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing.
(A) The Borrower shall submit an appropriate Notice of
Borrowing to the Agent with respect to the initial borrowing
of Revolving Loans on the Closing Date no later than 12:00
Noon (Charlotte, North Carolina time) on the Closing Date.
Such Notice of Borrowing shall be irrevocable and shall
specify the aggregate principal amount of the Revolving Loan
to be borrowed. The full amount of the Revolving Loan
disbursed on the Closing Date shall be a Base Rate Loan.
(B) With respect to each borrowing of Revolving Loans
disbursed after the Closing Date, the Borrower shall request
such Revolving Loan borrowing by written notice (or telephonic
notice promptly confirmed in writing) to the Agent not later
than 12:30 P.M. (Charlotte, North Carolina time) on the date
of the requested borrowing in the case of Base Rate Loans, and
on the third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such request
for borrowing shall be irrevocable and shall specify (A) that
a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing
shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period
of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for a Base
Rate Loan hereunder. The Agent shall give notice to each
affected Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.1(b)(i), the contents
thereof and each such Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that is a Revolving Loan shall be in a minimum aggregate principal
amount of $2,000,000 and integral multiples of $250,000 in excess
thereof (or the remaining amount of the Revolving Committed Amount,
if less).
29
(iii) Advances. Each Lender will make its Commitment
Percentage of each Revolving Loan borrowing available to the Agent
for the account of the Borrower as specified in Section 3.15(a), or
in such other manner as the Agent may specify in writing, by 2:00
P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately
available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent by crediting the account of the
Borrower on the books of such office with the aggregate of the
amounts made available to the Agent by the Lenders and in like funds
as received by the Agent; provided, however, that the Agent shall,
if requested by the Borrower, make the initial advance of Revolving
Loans on the Closing Date available to Borrower as provided above
prior to the Agent's receipt of corresponding amounts from the
Lenders.
(c) Repayment. The principal amount of all Revolving Loans shall
be due and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the
Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to
the Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender shall
be evidenced by a duly executed promissory note of the Borrower to such
Lender in an original principal amount equal to such Lender's Commitment
Percentage of the Revolving Committed Amount and in substantially the form
of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, the
applicable Issuing Lender agrees to issue, and each Lender severally
agrees to participate in the issuance by each Issuing Lender of, standby
and trade Letters of Credit in Dollars from time to time from the Closing
Date until the date thirty (30) days prior to the Maturity Date as the
Borrower may request, in a form acceptable to the applicable Issuing
Lender; provided, however, that (i) the LOC Obligations outstanding shall
not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the "LOC
Committed Amount") and (ii) the sum of the aggregate outstanding principal
amount of Revolving Loans plus LOC Obligations plus Swingline Loans shall
not at any time exceed the Revolving Committed Amount. No Letter of Credit
30
shall (x) have an original expiry date more than one year from the date of
issuance (provided that any such Letter of Credit may contain customary
"evergreen" provisions pursuant to which the expiry date is automatically
extended by a specific time period unless the applicable Issuing Lender
gives notice to the beneficiary of such Letter of Credit at least a
specified time period prior to the expiry date then in effect) or (y) as
originally issued or as extended, have an expiry date extending beyond the
date thirty (30) days prior to the Maturity Date. Each Letter of Credit
shall comply with the related LOC Documents. The issuance and expiry dates
of each Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter
of Credit shall be submitted by the Borrower to the applicable Issuing
Lender at least three (3) Business Days prior to the requested date of
issuance. At least quarterly (and more frequently upon request), each
Issuing Lender shall provide to the Agent a detailed report specifying the
Letters of Credit issued by such Issuing Lender which are then issued and
outstanding and any activity with respect thereto which may have occurred
since the date of the prior report, and including therein, among other
things, the beneficiary, the face amount and the expiry date, as well as
any payment or expirations which may have occurred. The Agent shall
disseminate promptly to each of the Lenders the information provided by
the Issuing Lender(s) pursuant to this subsection (b).
(c) Participation. Each Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a Participation
Interest from the applicable Issuing Lender in such Letter of Credit and
the obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its pro rata share of the obligations
under such Letter of Credit (based on the respective Commitment
Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume and be obligated to pay to the applicable Issuing
Lender and discharge when due, its pro rata share of the obligations
arising under such Letter of Credit. Without limiting the scope and nature
of each Lender's Participation Interest in any Letter of Credit, to the
extent that the applicable Issuing Lender has not been reimbursed as
required hereunder or under any such Letter of Credit, each such Lender
shall pay to the Agent for the account of the applicable Issuing Lender
its pro rata share of such unreimbursed drawing in same day funds on the
day of notification by the Agent of an unreimbursed drawing pursuant to
the provisions of subsection (d) below. The obligation of each Lender to
so reimburse the applicable Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse the applicable Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the applicable Issuing Lender will promptly notify the Borrower
and the Agent. Unless the Borrower shall promptly notify the Agent and the
applicable Issuing Lender that the Borrower intends to otherwise reimburse
the applicable Issuing Lender for such drawing, the Borrower shall be
deemed to have requested that the Lenders make a Revolving Loan in the
amount of such drawing as provided in subsection (e) below, the proceeds
of which will
31
be used to satisfy the related reimbursement obligations. The Borrower
promises to reimburse the applicable Issuing Lender (such reimbursement to
made to the Agent for the account of the applicable Issuing Lender) for
each drawing under any Letter of Credit (either with the proceeds of a
Revolving Loan obtained hereunder or otherwise) in same day funds (i) if
it shall receive notice of such drawing from the applicable Issuing Lender
prior to 1:00 P.M. (Charlotte, North Carolina time) on any Business Day,
on such Business Day and (ii) if it shall receive such notice after 1:00
P.M. (Charlotte, North Carolina time) on any day, on the next Business Day
after it shall receive such notice. The unreimbursed amount of any drawing
shall bear interest from the date of such drawing through the date upon
which reimbursement thereof is required as provided above at the Federal
Funds Rate. If the Borrower shall fail to reimburse the applicable Issuing
Lender as provided hereinabove, the unreimbursed amount of such drawing
shall thereafter bear interest at a per annum rate equal to the Adjusted
Base Rate plus 2%. The Borrower's reimbursement obligations hereunder
shall be absolute and unconditional under all circumstances irrespective
of any rights of setoff, counterclaim or defense to payment the Borrower
may claim or have against the applicable Issuing Lender, the Agent, the
Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of
the Borrower or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit. The applicable Issuing Lender will promptly notify the Agent, who
shall, in turn, promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Agent for
the account of the applicable Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Lender from the Agent if such notice is received at or
before 3:00 P.M. (Charlotte, North Carolina time), and otherwise such
payment shall be made at or before 12:00 Noon (Charlotte, North Carolina
time) on the Business Day next succeeding the day such notice is received.
If such Lender does not pay such amount to the Agent for the account of
the applicable Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Agent for the account of the applicable
Issuing Lender interest on the unpaid amount during the period from the
date of such drawing until such Lender pays such amount to the Agent for
the account of the applicable Issuing Lender in full at a rate per annum
equal to, if paid within two (2) Business Days of the date that such
Lender is required to make payments of such amount pursuant to the
preceding sentence, the Federal Funds Rate and thereafter at a rate equal
to the Base Rate. Each Lender's obligation to make such payment to the
applicable Issuing Lender, and the right of the applicable Issuing Lender
to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever. Simultaneously
with the making of each such payment by a Lender to the Agent for the
account of the applicable Issuing Lender, such Lender shall, automatically
and without any further action on the part of the Agent, the applicable
Issuing Lender or such Lender, acquire a Participation Interest in an
amount equal to such payment (excluding the portion of such payment
constituting interest owing to the applicable Issuing Lender) in the
related unreimbursed drawing portion of the LOC
32
Obligation and in the interest thereon, and shall have a claim against the
Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan advance to reimburse a drawing under a Letter of Credit,
the Agent shall give notice to the Lenders that a Revolving Loan has been
requested or deemed requested by the Borrower to be made in connection
with a drawing under a Letter of Credit, in which case a Revolving Loan
advance comprised of Base Rate Loans shall be immediately made to the
Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to Section 9.2) pro rata based on the respective
Commitment Percentages of the Lenders (determined before giving effect to
any termination of the Commitments pursuant to Section 9.2) and the
proceeds thereof shall be paid directly to the Agent for the account of
the applicable Issuing Lender for application to the respective LOC
Obligations. Each such Lender hereby irrevocably agrees to make its pro
rata share of each such Revolving Loan immediately upon any such request
or deemed request in the amount, in the manner and on the date specified
in the preceding sentence notwithstanding (i) the amount of such borrowing
may not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure of any such request or deemed request
for Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving Loans
are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan cannot for any reason be
made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
with respect to the Borrower or any other Credit Party), then each such
Lender hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the applicable Issuing Lender such Participation Interests
in the outstanding LOC Obligations as shall be necessary to cause each
such Lender to share in such LOC Obligations ratably (based upon the
respective Commitment Percentages of the Lenders (determined before giving
effect to any termination of the Commitments pursuant to Section 9.2)),
provided that at the time any purchase of Participation Interests pursuant
to this sentence is actually made, the purchasing Lender shall be required
to pay to the Agent for the account of the applicable Issuing Lender, to
the extent not paid to the applicable Issuing Lender by the Borrower in
accordance with the terms of subsection (d) above, interest on the
principal amount of Participation Interests purchased for each day from
and including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such Participation
Interests, at the rate equal to, if paid within two (2) Business Days of
the date of the Revolving Loan advance, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate.
(f) Designation of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a), a Letter of Credit
issued hereunder may be issued for the account of a
33
Consolidated Party other than the Borrower, provided that notwithstanding
such statement, the Borrower shall be the actual account party for all
purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The applicable Issuing Lender
may have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by
the International Chamber of Commerce (the "UCP"), in which case the UCP
may be incorporated therein and deemed in all respects to be a part
thereof. Standby Letters of Credit may also be subject to IFP98
(International Standby Practice).
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.2, the Borrower hereby agrees to pay, and protect, indemnify and
save each Lender harmless from and against, any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that such Lender may incur or
be subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of such Lender
to honor a drawing under a Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority (all such
acts or omissions, herein called "Government Acts").
(ii) As between the Borrower and the Lenders (including the
applicable Issuing Lender), the Borrower shall assume all risks of
the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. No Lender (including the applicable Issuing
Lender) shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid
or ineffective for any reason; (C) for errors, omissions,
interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under
a Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of such Lender,
including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the applicable
Issuing Lender's rights or powers hereunder.
34
(iii) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection
(d) above. The obligations of the Borrower under this subsection (i)
shall survive the termination of this Credit Agreement. No act or
omission of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Lenders
(including the applicable Issuing Lender) to enforce any right,
power or benefit under this Credit Agreement.
(iv) Notwithstanding anything to the contrary contained in
this subsection (i), the Borrower shall have no obligation to
indemnify any Lender (including the applicable Issuing Lender) in
respect of any liability incurred by such Lender (A) arising out of
the gross negligence or willful misconduct of such Lender, or (B)
caused by such Lender's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit, unless such payment
is prohibited by any law, regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood
and agreed that the obligations of the applicable Issuing Lender hereunder
to the Lenders are only those expressly set forth in this Credit Agreement
and that the applicable Issuing Lender shall be entitled to assume that
the conditions precedent set forth in Section 5.2 have been satisfied
unless it shall have acquired actual knowledge that any such condition
precedent has not been satisfied; provided, however, that nothing set
forth in this Section 2.2 shall be deemed to prejudice the right of any
Lender to recover from the applicable Issuing Lender any amounts made
available by such Lender to the applicable Issuing Lender pursuant to this
Section 2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
applicable Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any letter
of credit application), this Credit Agreement shall control.
2.3 SWINGLINE LOAN SUBFACILITY OF THE REVOLVER.
(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by the Borrower in Dollars to the
Borrower (each a "Swingline Loan" and, collectively, the "Swingline
Loans") from time to time from the Closing Date until the Maturity Date
for the purposes hereinafter set forth; provided, however, (i) the
aggregate principal amount of Swingline Loans outstanding at any time
shall not exceed TEN MILLION DOLLARS ($10,000,000) (the "Swingline
Committed Amount"), and (ii) the sum of the aggregate outstanding
principal amount of Revolving Loans plus LOC Obligations plus Swingline
35
Loans shall not exceed the Revolving Committed Amount. Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or
telephonic notice promptly confirmed in writing) to the Swingline
Lender not later than 3:00 P.M. (Charlotte, North Carolina time) on
the Business Day of the requested Swingline Loan advance. Each such
notice shall be irrevocable and shall specify (A) that a Swingline
Loan advance is requested, (B) the date of the requested Swingline
Loan advance (which shall be a Business Day) and (C) the principal
amount of the Swingline Loan advance requested. Each Swingline Loan
shall be made as a Base Rate Loan and shall have such maturity date
as the Swingline Lender and the Borrower shall agree upon receipt by
the Swingline Lender of any such notice from the Borrower. The
Swingline Lender shall initiate the transfer of funds representing
the Swingline Loan advance to the Borrower by 3:00 P.M. (Charlotte,
North Carolina time) on the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in
a minimum principal amount of $100,000 and integral multiples of
$100,000 (or the remaining amount of the Swingline Committed Amount,
if less).
(iii) Repayment of Swingline Loans. The principal amount of
all Swingline Loans shall be due and payable on the earlier of (A)
the maturity date agreed to by the Swingline Lender and the Borrower
with respect to such Loan (which maturity date shall not be a date
more than seven (7) Business Days from the date of advance thereof)
or (B) the Maturity Date. The Swingline Lender may, at any time, in
its sole discretion, by written notice to the Borrower and the
Lenders, demand repayment of its Swingline Loans by way of a
Revolving Loan advance, in which case the Borrower shall be deemed
to have requested a Revolving Loan advance comprised solely of Base
Rate Loans in the amount of such Swingline Loans; provided, however,
that any such demand shall be deemed to have been given one Business
Day prior to the Maturity Date and on the date of the occurrence of
any Event of Default described in Section 9.1 and upon acceleration
of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving
Loan in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (I) the amount of such borrowing
may not comply with the minimum amount for advances of Revolving
Loans otherwise required hereunder, (II) whether any conditions
specified in Section 5.2 are then satisfied, (III) whether a Default
or an Event of Default then exists, (IV) failure of any such request
or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such borrowing
is a date on which Revolving Loans are otherwise permitted to be
made hereunder or (VI) any termination of the Commitments relating
thereto immediately
36
prior to or contemporaneously with such borrowing. In the event that
any Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then each Lender
hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior
to such purchase) from the Swingline Lender such Participation
Interests in the outstanding Swingline Loans as shall be necessary
to cause each such Lender to share in such Swingline Loans ratably
based upon its Commitment Percentage of the Revolving Committed
Amount (determined before giving effect to any termination of the
Commitments pursuant to Section 3.4), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective
Participation Interest is purchased and (B) at the time any purchase
of Participation Interests pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay to the
Swingline Lender, to the extent not paid to the Swingline Lender by
the Borrower in accordance with the terms of subsection (c)(ii)
below, interest on the principal amount of Participation Interests
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal to the
Federal Funds Rate.
(c) Interest on Swingline Loans.
(i) Rate of Interest . Subject to the provisions of Section
3.1, each Swingline Loan shall bear interest at a per annum rate
equal to the Base Rate.
(ii) Payment of Interest. Interest on Swingline Loans shall
be payable in arrears on each applicable Interest Payment Date (or
at such other times as may be specified herein), unless accelerated
sooner pursuant to Section 9.2.
(d) Swingline Note. The Swingline Loans shall be evidenced by a
duly executed promissory note of the Borrower to the Swingline Lender in
an original principal amount equal to the Swingline Committed Amount
substantially in the form of Exhibit 2.3(d).
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITY
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of a default in the
payment of any amount hereunder, under the Notes or under any of the other
Credit Documents, such overdue amount shall bear interest, payable on demand, at
a per annum rate 2% greater than the rate which would
37
otherwise be applicable (or if no rate is applicable, whether in respect of
interest, fees or other amounts, then the Adjusted Base Rate plus 2%).
3.2 EXTENSION AND CONVERSION.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert
Loans into Loans of another interest rate type; provided, however, that
(i) except as provided in Section 3.8, Eurodollar Loans may be converted
into Base Rate Loans or extended as Eurodollar Loans for new Interest
Periods only on the last day of the Interest Period applicable thereto,
(ii) without the consent of the Requisite Lenders, Eurodollar Loans may be
extended, and Base Rate Loans may be converted into Eurodollar Loans, only
if the conditions precedent set forth in Section 5.2 are satisfied on the
date of extension or conversion, (iii) Loans extended as, or converted
into, Eurodollar Loans shall be subject to the terms of the definition of
"Interest Period" set forth in Section 1.1 and shall be in such minimum
amounts as provided in, with respect to Revolving Loans, Section
2.1(b)(ii), (iv) no more than 6 Eurodollar Loans which are Revolving Loans
shall be outstanding hereunder at any time (it being understood that, for
purposes hereof, Eurodollar Loans with different Interest Periods shall be
considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Eurodollar Loan with a single Interest
Period), (v) any request for extension or conversion of a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a
request for an Interest Period of one month and (vi) Swingline Loans may
not be extended or converted pursuant to this Section 3.2. Each such
extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion (or telephonic notice promptly confirmed in
writing) to the office of the Agent specified in Schedule 2.1(a), or at
such other office as the Agent may designate in writing, prior to 12:00
Noon (Charlotte, North Carolina time) on the Business Day of, in the case
of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the
third Business Day prior to, in the case of the extension of a Eurodollar
Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the
date of the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be converted
and, if appropriate, the applicable Interest Periods with respect thereto.
Each request for extension or conversion shall be irrevocable and shall
constitute a representation and warranty by the Borrower of the matters
specified in clauses (b), (c), (d) and (e) of Section 5.2. In the event
the Borrower fails to request extension or conversion of any Eurodollar
Loan in accordance with this Section 3.2, or any such conversion or
extension is not permitted or required by this Credit Agreement, then such
Eurodollar Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto. The Agent shall give
each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
38
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part from time to time; provided, however,
that each partial prepayment of Loans (other than Swingline Loans) shall
be in a minimum principal amount of $1,000,000 and integral multiples of
$250,000 in excess thereof (or the then remaining principal balance of the
Revolving Loans, if less). Subject to the foregoing terms, amounts prepaid
under this Section 3.3(a) shall be applied as the Borrower may elect;
provided that if the Borrower shall fail to specify, voluntary prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities. All prepayments under this
Section 3.3(a) shall be subject to Section 3.12, but otherwise without
premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
(b) Mandatory Prepayments.
(i) (A) Revolving Committed Amount. If at any time, the
sum of the aggregate outstanding principal amount of Revolving Loans
plus LOC Obligations plus Swingline Loans shall exceed the Revolving
Committed Amount, the Borrower immediately shall prepay the
Revolving Loans and (after all Revolving Loans have been repaid)
cash collateralize the LOC Obligations, in an amount sufficient to
eliminate such excess.
(B) LOC Committed Amount. If at any time, the sum of
the aggregate principal amount of LOC Obligations shall exceed
the LOC Committed Amount, the Borrower immediately shall cash
collateralize the LOC Obligations in an amount sufficient to
eliminate such excess.
(ii) (A) Asset Dispositions. Immediately upon the
occurrence of any Asset Disposition Prepayment Event, the Borrower
shall prepay the Loans in an aggregate amount equal to 100% of the
Net Cash Proceeds of the related Asset Disposition not applied (or
caused to be applied) by the Credit Parties during the related
Application Period to make Eligible Reinvestments as contemplated by
the terms of Section 8.5(g) (such prepayment to be applied as set
forth in clause (iii) below).
(B) Casualty and Condemnation Events. Immediately upon
the occurrence of any event requiring application of any
insurance proceeds to the prepayment of Loans (and cash
collateralization of LOC Obligations) pursuant to Section
7.6(b), the Borrower shall prepay the Loans in the amount
required by such Section 7.6(b) (such prepayment to be applied
as set forth in clause (iii) below).
(iii) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 3.3(b) shall be applied
as follows: (A) with respect to all amounts prepaid pursuant to
Section 3.3(b)(i)(A), to Revolving Loans (without
39
any reduction in the Revolving Committed Amount) and (after all
Revolving Loans have been repaid) to a cash collateral account in
respect of LOC Obligations, (B) with respect to all amounts prepaid
pursuant to Section 3.3(b)(i)(B), to a cash collateral account in
respect of LOC Obligations and (C) with respect to all amounts
prepaid pursuant to Section 3.3(b)(ii), first, to the Swingline
Loans, second (after all Swingline Loans have been repaid), to
Revolving Loans and, third (after all Revolving Loans have been
repaid), to a cash collateral account in respect of LOC Obligations
(without a corresponding permanent reduction in the Revolving
Committed Amount in connection with any application required
pursuant to this Section 3.3(b)). Within the parameters of the
applications set forth above, prepayments shall be applied first to
Base Rate Loans and then to Eurodollar Loans subject to Section
3.3(b)(iv) in direct order of Interest Period maturities. All
prepayments under this Section 3.3(b) shall be subject to Section
3.12, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
(iv) Prepayment Account. If the Borrower is required to make
a mandatory prepayment of Eurodollar Loans under this Section
3.3(b), the Borrower shall have the right, in lieu of making such
prepayment in full, to deposit an amount equal to such mandatory
prepayment with the Agent in a cash collateral account maintained
(pursuant to documentation reasonably satisfactory to the Agent) by
and in the sole dominion and control of the Agent. Any amounts so
deposited shall be held by the Agent as collateral for the
prepayment of such Eurodollar Loans and shall be applied to the
prepayment of the applicable Eurodollar Loans at the end of the
current Interest Periods applicable thereto. At the request of the
Borrower, amounts so deposited shall be invested by the Agent in
Cash Equivalents maturing prior to the date or dates on which it is
anticipated that such amounts will be applied to prepay such
Eurodollar Loans; any interest earned on such Cash Equivalents will
be for the account of the Borrower and the Borrower will deposit
with the Agent the amount of any loss on any such Cash Equivalents
to the extent necessary in order that the amount of the prepayment
to be made with the deposited amounts may not be reduced.
3.4 TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT.
(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole or
in part (in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full remaining
amount of the then applicable Revolving Committed Amount)) upon five
Business Days' prior written notice to the Agent; provided, however, no
such termination or reduction shall be made which would cause the sum of
the aggregate outstanding principal amount of Revolving Loans plus LOC
Obligations plus Swingline Loans to exceed the Revolving Committed Amount
unless, concurrently with such termination or reduction, the Revolving
Loans are repaid to the extent necessary to eliminate such excess. The
Agent shall promptly notify each affected Lender of receipt by the Agent
of any notice from the Borrower pursuant to this Section 3.4(a).
40
(b) Maturity Date. The Revolving Commitments of the Lenders, the
LOC Commitment of the Issuing Lender(s) and the Swingline Commitment of
the Swingline Lender shall automatically terminate on the Maturity Date.
(c) General. The Borrower shall pay to the Agent for the account
of the Lenders in accordance with the terms of Section 3.5(b), on the date
of each termination or reduction of the Revolving Committed Amount, the
Unused Fee accrued through the date of such termination or reduction on
the amount of the Revolving Committed Amount so terminated or reduced.
3.5 FEES.
(a) Underwriting Fee. The Borrower promises to pay to the Agent,
for the benefit of the Lenders, on the Closing Date an underwriting fee in
the amount provided in the Agent's Fee Letter.
(b) Unused Fee. In consideration of the Revolving Commitments of
the Lenders hereunder, the Borrower promises to pay to the Agent for the
account of each Lender a fee (the "Unused Fee") on the Unused Revolving
Committed Amount computed at a per annum rate for each day during the
applicable Unused Fee Calculation Period (hereinafter defined) at a rate
equal to .50%. The Unused Fee shall commence to accrue on the Closing Date
and shall be due and payable in arrears on the last Business Day of each
March, June, September and December (and on any date that the Revolving
Committed Amount is reduced and on the Maturity Date) for the immediately
preceding quarter (or portion thereof) (each such quarter or portion
thereof for which the Unused Fee is payable hereunder being herein
referred to as an "Unused Fee Calculation Period"), beginning with the
first of such dates to occur after the Closing Date.
(c) Letter of Credit Fees.
(i) Standby Letter of Credit Issuance Fee. In consideration
of the issuance of standby Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a fee
(the "Standby Letter of Credit Fee") on such Lender's Commitment
Percentage of the average daily maximum amount available to be drawn
under each such standby Letter of Credit computed at a per annum
rate for each day from the date of issuance to the date of
expiration equal to the Applicable Percentage. The Standby Letter of
Credit Fee will be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the immediately
preceding quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In consideration of
the issuance of trade Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a fee
(the "Trade Letter of Credit Fee") on such Lender's Commitment
Percentage of the average daily maximum amount available to be drawn
under each such trade Letter of Credit computed at a per annum rate
for each
41
day from the date of issuance to the date of expiration equal to the
Applicable Percentage. The Trade Letter of Credit Fee will be
payable quarterly in arrears on the last Business Day of each March,
June, September and December for the immediately preceding quarter
(or a portion thereof).
(iii) Issuing Lender Fees. In addition to the Standby Letter
of Credit Fee payable pursuant to clause (i) above and the Trade
Letter of Credit Fee payable pursuant to clause (ii) above, the
Borrower promises to pay to the Agent for the account of the
applicable Issuing Lender, without sharing by the other Lenders, (i)
a letter of credit fronting fee of 1/4% on the average daily maximum
amount available to be drawn under each Letter of Credit computed at
a per annum rate for each day from the date of issuance to the date
of expiration (which fronting fee shall be payable quarterly in
arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion
thereof)) and (ii) the customary charges from time to time of the
applicable Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and
drawings under, such Letters of Credit.
(d) Administrative Fees. The Borrower promises to pay to the
Agent, for its own account and for the account of Banc of America
Securities LLC, as applicable, the fees referred to in the Agent's Fee
Letter.
3.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto. Notwithstanding any other provision in this Section 3.6, none of the
Lenders shall be entitled to demand compensation pursuant to this Section 3.6,
if it shall not be the general practice of such Lender to demand such
compensation in similar circumstances under comparable provisions of other
comparable credit agreements.
3.7 LIMITATION ON EURODOLLAR LOANS.
If on or prior to the first day of any Interest Period for any Eurodollar
Loan:
42
(a) the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period; or
(b) the Requisite Lenders determine (which determination shall be
conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement.
3.8 ILLEGALITY.
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Lender or its Applicable Lending Office to
make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be
applicable).
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar Loans,
its Notes, or its obligation to make Eurodollar Loans, or change the basis
of taxation of any amounts payable to such Lender (or its Applicable
Lending Office) under this Credit Agreement or its Notes in respect of any
Eurodollar Loans (other than franchise taxes and taxes imposed on the
overall net income of such Lender by the jurisdiction in which such Lender
is organized or any political subdivision thereof or therein or has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Eurodollar
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including the Commitment of such
Lender hereunder; or
43
(iii) shall impose on such Lender (or its Applicable Lending Office)
or the London interbank market any other condition affecting this Credit
Agreement or its Notes or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender within 5 Business Days following demand such amount or amounts as
will compensate such Lender for such increased cost or reduction; provided that
such increases or reductions shall not include any increased costs or reductions
in respect of taxes that are governed by the provisions of Section 3.11, and the
provisions of this Section 3.9 shall not be interpreted to cause a duplication
in payment or treatment of any taxes in a manner inconsistent with the
provisions of Section 3.11. If any Lender requests compensation by the Borrower
under this Section 3.9, the Borrower may, by notice to such Lender (with a copy
to the Agent), suspend the obligation of such Lender to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
event or condition giving rise to such request ceases to be in effect (in which
case the provisions of Section 3.10 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the compensation
so requested. Each Lender shall promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 3.9 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 3.9 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.10 TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make any Eurodollar Loan or to
Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.7, 3.8 or 3.9 hereof, such Lender's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on the last day(s)
of the then current Interest Period(s) for such Eurodollar Loans (or, in the
case of a Conversion, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 3.7, 3.8 or
3.9 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate
44
Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.7, 3.8 or 3.9 hereof that gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 3.10 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments.
3.11 TAXES.
(a) Any and all payments by any Credit Party to or for the account
of any Lender or the Agent hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender (or its Applicable Lending Office) or the Agent (as the case
may be) is organized or any political subdivision thereof or therein (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes").
If any Credit Party shall be required by law to deduct any Taxes from or
in respect of any sum payable under this Credit Agreement or any other
Credit Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.11) such Lender or the Agent receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Credit
Party shall make such deductions, (iii) such Credit Party shall pay the
full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law, and (iv) such Credit Party shall
furnish to the Agent, at its address referred to in Section 11.1, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under this
Credit Agreement or any other Credit Document or from the execution or
delivery of, or otherwise with respect to, this Credit Agreement or any
other Credit Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.11) paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
45
(d) Each Lender on or prior to the date of its execution and
delivery of this Credit Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes a
Lender in the case of each other Lender, and from time to time thereafter
if requested in writing by the Borrower or the Agent (but only so long as
such Lender remains lawfully able to do so), shall provide the Borrower
and the Agent with (A) if such Lender is a United States person under
Section 7701(a)(30) of the Code (other than any such Lender that is a
financial institution whose name includes the word "Bank", "Credit Union",
"Savings and Loan" or "Mutual Savings Bank"), Internal Revenue Service
Form W-9 or any successor form prescribed by the Internal Revenue Service
or (B) if such Lender is not a United States person under Section
7701(a)(30) of the Code (i) Internal Revenue Service Form W-8 BEN or W-8
ECI, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under
an income tax treaty to which the United States is a party which reduces
to zero the rate of withholding tax on payments of hereunder or under any
other Credit Document or certifying that the income receivable hereunder
or under any other Credit Document is effectively connected with the
conduct of a trade or business in the United States or (ii) with respect
to payments of interest, if such Lender is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, a certificate substantially in the
form of Exhibit 3.11(d) and Internal Revenue Service Form W-8 BEN. The
Borrower shall be entitled to rely on such forms in its possession until
receipt of any revised or successor form pursuant to this Section 3.11(d).
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Agent with the appropriate form pursuant to
Section 3.11(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), (i) the Borrower shall be entitled to deduct or
withhold on payments to the Agent or such Lender as a result of such
failure, as required by law, and (ii) the Borrower shall not be required
to make payments of additional amounts with respect to such withheld
amounts pursuant to Section 3.11(a) (or to indemnify a Lender pursuant to
Section 3.11(c)) to the extent such withholding (or liability for Tax) is
required solely by reason of the failure of the Agent or such Lender to
provide the necessary certificate, document or other evidence of an
exemption from withholding; provided, however, that should a Lender, which
is otherwise exempt from withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 3.11, then such
Lender will agree to use reasonable efforts to change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of
the Credit Parties hereunder, the agreements and obligations of the Credit
Parties contained in this
46
Section 3.11 shall survive the repayment of the Loans, LOC Obligations and
other obligations under the Credit Documents and the termination of the
Commitments hereunder.
3.12 COMPENSATION.
Upon the request of any Lender, the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (excluding loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan
for any reason (including, without limitation, (i) in connection with any
assignment by Bank of America pursuant to Section 11.3(b) as part of the
primary syndication of the Loans during the 180-day period immediately
following the Closing Date and (ii) the acceleration of the Loans pursuant
to Section 9.2) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan
on the date for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, Continuation,
or Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.13 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or (subject to the terms of
Section 3.3) prepayment of principal of any Loan or reimbursement
obligations arising from drawings under Letters of Credit, each payment of
interest on the Loans or reimbursement obligations arising from drawings
under Letters of Credit, each payment of Unused Fees, each payment of the
Standby Letter of Credit Fee, each payment of the Trade Letter of Credit
Fee, each reduction of the Revolving Committed Amount and each conversion
or extension of any
47
Loan, shall be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans of the applicable
type and Participation Interests in Loans of the applicable type and
Letters of Credit.
(b) Advances. No Lender shall be responsible for the failure or
delay by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender of
its obligations hereunder. Unless the Agent shall have been notified by
any Lender prior to the date of any requested borrowing that such Lender
does not intend to make available to the Agent its ratable share of such
borrowing to be made on such date, the Agent may assume that such Lender
has made such amount available to the Agent on the date of such borrowing,
and the Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Agent, the Agent shall be able to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent
will promptly notify the Borrower, and the Borrower shall within 3
Business Days after demand pay such corresponding amount to the Agent. The
Agent shall also be entitled to recover from the Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered
by the Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for the applicable borrowing pursuant to the Notice of
Borrowing and (ii) from a Lender at the Federal Funds Rate.
3.14 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest
48
as fully as if such Lender were a holder of such Loan, LOC Obligations or other
obligation in the amount of such Participation Interest. Except as otherwise
expressly provided in this Credit Agreement, if any Lender shall fail to remit
to the Agent or any other Lender an amount payable by such Lender to the Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount is paid to
the Agent or such other Lender at a rate per annum equal to the Federal Funds
Rate. If under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this Section 3.14
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.14 to share in the benefits of any recovery on such
secured claim.
3.15 PAYMENTS, COMPUTATIONS, ETC.
(a) Generally. Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Agent in Dollars in immediately
available funds, without setoff, deduction, counterclaim or withholding of any
kind, at the Agent's office specified in Schedule 2.1(a) not later than 2:00
P.M. (Charlotte, North Carolina time) on the date when due. Payments received
after such time shall be deemed to have been received on the next succeeding
Business Day. The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, the
Agent shall distribute such payments first to Swingline Loans and second to
Revolving Loans (first to Base Rate Loans and then to Eurodollar Loans in direct
order of Interest Period maturities), and, after all Revolving Loans have been
repaid, to a cash collateral account in respect of LOC Obligations. The Agent
will distribute such payments to such Lenders, if any such payment is received
prior to 2:00 P.M. (Charlotte, North Carolina time) on a Business Day in like
funds as received prior to the end of such Business Day and otherwise the Agent
will distribute such payment to such Lenders on the next succeeding Business
Day. Whenever any payment hereunder shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the period
of such extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of interest
and fees shall be made on the basis of actual number of days elapsed over a year
of 360 days, except with respect to computation of interest on Base Rate Loans
which shall be calculated based on a year of 365 or 366 days, as appropriate.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after acceleration of
the Credit Party Obligations pursuant to Section 9.2, all amounts collected or
received by the Agent or any Lender on account of the Credit Party Obligations
or any other amounts outstanding under any of the Credit Documents or in respect
of the Collateral shall be paid over or delivered as follows:
49
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Agent in connection with enforcing the
rights of the Lenders under the Credit Documents and any
protective advances made by the Agent with respect to the
Collateral under or pursuant to the terms of the Collateral
Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all of the Credit Party
Obligations consisting of accrued fees and interest;
FOURTH, to the payment of the outstanding principal
amount of the Credit Party Obligations (including the payment
or cash collateralization of the outstanding LOC Obligations);
FIFTH, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable
attorneys' fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise
with respect to the Credit Party Obligations owing to such
Lender;
SIXTH, to all other Credit Party Obligations and
other obligations which shall have become due and payable
under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to
whomever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH"
and "SIXTH" above; and (iii) to the extent that any amounts available
for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such
amounts shall be held by the Agent in a cash collateral account and
applied (A) first, to reimburse the Issuing Lender(s) from time to time
for any drawings under such Letters of Credit and (B) then, following
the expiration of all Letters of Credit, to all other obligations of
the types described in clauses "FIFTH" and "SIXTH" above in the manner
provided in this Section 3.15(b).
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit
50
Agreement. Each Lender will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its account
or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section
11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to
each Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder from or for the account of any Credit Party and each
Lender's share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to clause (b) of this Section 3.16 (and, if
consistent with the entries of the Agent, clause (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the
Credit Parties therein recorded; provided, however, that the failure of
any Lender or the Agent to maintain any such account, such Register or
such subaccount, as applicable, or any error therein, shall not in any
manner affect the obligation of the Credit Parties to repay the Credit
Party Obligations owing to such Lender.
3.17 REPLACEMENT OF AFFECTED LENDERS.
If any Lender having a Revolving Commitment becomes a Defaulting Lender
or otherwise defaults in its Revolving Commitment or if any Lender is owed
increased costs under Section 3.6, Section 3.8, Section 3.9, or, or the Borrower
is required to make any payments under Section 3.11 to any Lender in excess of
those to the other Lenders or if any Lender elects not to enter into any
amendment, modification, consent or waiver with respect to the Credit Agreement
or any other Credit Document requested by the Borrower, which amendment,
modification, consent or waiver cannot become effective without the consent of
such Lender, the Borrower shall have the right, if no Event of Default then
exists, to replace such Lender (the "Replaced Lender") with one or more other
Eligible Assignee or Eligible Assignees, none of whom shall constitute a
Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender"), provided that (i) at the time of any replacement pursuant
to this Section 3.17, the Replaced Lender and Replacement Lender shall enter
into an Assignment and Acceptance in the form of Exhibit 11.3(b), pursuant to
which the Replacement Lender shall acquire all or a portion, as the case may be,
of the Commitments and outstanding Loans of, and participation in Letters of
Credit by, the Replaced Lender and (ii) all obligations of the Borrower owing to
the Replaced Lender relating to the Loans so replaced (including, without
limitation, such increased costs and excluding those specifically described in
clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the assignment
documentation, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrower, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder with respect to
51
such replaced Loans, except with respect to indemnification provisions under
this Agreement, which shall survive as to such Replaced Lender. Notwithstanding
anything to the contrary contained above, (1) any Lender that acts as an Issuing
Lender may not be replaced hereunder at any time that it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to such Lender (including
the furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer satisfactory to such Lender or the depositing of cash
collateral into a cash collateral account maintained with the Agent in amounts
and pursuant to arrangements satisfactory to such Lender) have been made with
respect to such outstanding Letters of Credit and (2) the Lender that acts as
the Agent may not be replaced hereunder except in accordance with the terms of
Section 10.7. The Replaced Lender shall be required to deliver for cancellation
its applicable Notes to be canceled on the date of replacement, or if any such
Note is lost or unavailable, such other assurances or indemnification therefor
as the Borrower may reasonably request.
SECTION 4
GUARANTY
4.1 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement, and the
Agent as hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Credit Party Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Credit Party Obligations
are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Credit Party Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security
52
for any of the Credit Party Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid under this Section 4 until such time as the
Credit Party Obligations have been Fully Satisfied. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement between the Borrower and
any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Hedging
Agreements shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations shall
be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement between the Borrower
and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Hedging
Agreements shall be waived or any other guarantee of any of the Credit
Party Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Credit Party Obligations
shall fail to attach or be perfected; or
(e) any of the Credit Party Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement between the Borrower and any Lender, or any Affiliate of a
Lender, or any other agreement or instrument referred to in the Credit Documents
or such Hedging Agreements, or against any other Person under any other
guarantee of, or security for, any of the Credit Party Obligations.
53
4.3 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
In the event that North Carolina law is determined to be controlling in
any legal action or proceeding with respect to this Section 4 notwithstanding
the parties' contractual choice of New York law pursuant to Section 11.10(a),
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat.
Sections 26-7 through 26-9, inclusive, to the extent applicable. Each
Guarantor further agrees that such Guarantor shall have no right of recourse to
security for the Credit Party Obligations, except through the exercise of rights
of subrogation pursuant to Section 4.2 and through the exercise of rights of
contribution pursuant to Section 4.6.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Credit Party Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1. The Guarantors acknowledge and agree that their obligations hereunder are
secured in accordance with the terms of the Collateral Documents and that the
Lenders may exercise their remedies thereunder in accordance with the terms
thereof.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the Credit Party Obligations until such time
as the Credit Party Obligations have been Fully Satisfied, and none of the
Guarantors shall exercise
54
any right or remedy under this Section 4.6 against any other Guarantor until
such Credit Party Obligations have been Fully Satisfied. For purposes of this
Section 4.6, (a) "Excess Payment" shall mean the amount paid by any Guarantor in
excess of its Pro Rata Share of any Credit Party Obligations; (b) "Pro Rata
Share" shall mean, for any Guarantor in respect of any payment of Credit Party
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Credit Party Obligations of (i) the amount by which the aggregate
present fair salable value on a going concern basis of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value on a going concern basis of all
assets and other properties of all of the Credit Parties exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Credit
Parties hereunder) of the Credit Parties; provided, however, that, for purposes
of calculating the Pro Rata Shares of the Guarantors in respect of any payment
of Credit Party Obligations, any Guarantor that became a Guarantor subsequent to
the date of any such payment shall be deemed to have been a Guarantor on the
date of such payment and the financial information for such Guarantor as of the
date such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such payment; and (e) "Contribution Share" shall mean, for any
Guarantor in respect of any Excess Payment made by any other Guarantor, the
ratio (expressed as a percentage) as of the date of such Excess Payment of (i)
the amount by which the aggregate present fair salable value on a going concern
basis of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
on a going concern basis of all assets and other properties of the Credit
Parties other than the maker of such Excess Payment exceeds the amount of all of
the debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Credit Parties)
of the Credit Parties other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution Shares of the
Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under
applicable law against the Borrower in respect of any payment of Credit Party
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor shall be relieved of its obligations pursuant to Section 8.5.
4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
55
SECTION 5
CONDITIONS
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans or the applicable Issuing Lender to issue the initial
Letter of Credit, whichever shall occur first, shall be subject to satisfaction
of the following conditions:
(a) Executed Credit Documents. Receipt by the Agent of duly
executed copies of: (i) this Credit Agreement, (ii) the Notes, (iii)
the Security Agreement and (iv) the Agent's Fee Letter.
(b) Corporate Documents. Receipt by the Agent of the
following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of each Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and
effect as of the Closing Date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and the state or other
jurisdiction of the chief executive office and principal place
of business and (B) to the extent available, a certificate
indicating payment of all corporate or comparable franchise
taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Closing Date.
(c) Opinions of Counsel. The Agent shall have received, in
each case dated as of the Closing Date:
56
(i) a legal opinion of Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx, in form and substance reasonably satisfactory to
the Agent; and
(ii) a legal opinion of special Nevada counsel for
the Borrower, in form and substance reasonably satisfactory to
the Agent.
(d) Personal Property Collateral. The Agent shall have
received:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit
Party and each jurisdiction where any Collateral is located or
where a filing would need to be made in order to perfect the
Agent's security interest in the Collateral, copies of the
financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the
Collateral;
(iii) searches of ownership of, and Liens on,
intellectual property of each Credit Party in the appropriate
governmental offices;
(iv) all certificates evidencing any certificated
Capital Stock pledged to the Agent pursuant to the Pledge
Agreement, together with duly executed in blank, undated stock
powers attached thereto;
(v) such patent/trademark/copyright filings as
requested by the Agent in order to perfect the Agent's
security interest in the Collateral;
(vi) all instruments and chattel paper in the
possession of any of the Credit Parties, together with
allonges or assignments as may be necessary or appropriate to
perfect the Agent's security interest in the Collateral; and
(vii) duly executed consents as are necessary, in the
Agent's sole discretion, to perfect the Agent's security
interest in the Collateral.
(e) Initial Public Offering and Receipt of Proceeds. The
Initial Public Offering shall have been consummated and the Agent shall
be satisfied that (i) the Parent shall have received net cash proceeds
from the Initial Public Offering of not less than $125,000,000 and (ii)
the Parent shall have contributed such net cash proceeds to the
Borrower after payment in full by Parent of its obligations under the
Subordinated Note Agreement (as defined in the Existing Credit
Agreement) and expenses related to the Initial Public Offering, in each
case on terms and conditions reasonably satisfactory to the Agent.
57
(f) Litigation. There shall not exist any pending or
threatened in writing action, suit, investigation or proceeding against
the Parent or any Consolidated Party that could reasonably be expected
to have a Material Adverse Effect.
(g) Repayment of Term Loans and Acquisition Loans. The Term
Loans and the Acquisition Loans (as such terms are defined in the
Existing Credit Agreement) shall have been paid in full.
(h) Repayment of Subordinated Note Agreement. The obligations
of the Parent under the Subordinated Note Agreement (as defined in the
Existing Credit Agreement) shall have been paid in full.
(i) Other Indebtedness. Receipt by the Agent of evidence that,
after giving effect to the Initial Public Offering, the Parent and the
Consolidated Parties shall have no Funded Indebtedness other than
Indebtedness permitted under Section 8.1.
(j) Officer's Certificates. The Agent shall have received a
certificate or certificates executed by an Executive Officer of the
Borrower as of the Closing Date, in form and substance reasonably
satisfactory to the Agent, stating that (i) all governmental,
shareholder and third party consents and approvals, if any, with
respect to the Credit Documents and the transactions contemplated
thereby have been obtained, (ii) no action, suit, investigation or
proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect any
Credit Party or any transaction contemplated by the Credit Documents,
if such action, suit, investigation or proceeding could reasonably be
expected to have a Material Adverse Effect and (iii) (A) no Default or
Event of Default exists and (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct
in all material respects as of the Closing Date (except for such
representations and warranties which expressly relate to an earlier
date).
(k) Fees and Expenses. Payment by the Credit Parties to the
Lenders and the Agent of all fees and expenses relating to the Credit
Facility which are due and payable on the Closing Date, including,
without limitation, payment to the Agent of the fees set forth in the
Agent's Fee Letter.
(l) Other. Receipt by the Agent of such other documents,
instruments, agreements or information as reasonably requested by the
Agent, including, but not limited to, information regarding litigation,
tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Parent and the
Consolidated Parties.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make, convert or extend any Loan and
of the applicable Issuing Lender to issue or extend any Letter of Credit
(including the initial Loans and the initial
58
Letter of Credit) are subject to satisfaction of the following conditions in
addition to satisfaction on the Closing Date of the conditions set forth in
Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any
Revolving Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
applicable Issuing Lender shall have received an appropriate request
for issuance in accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 6
shall, subject to the limitations set forth therein, be true and
correct in all material respects as of such date (except for those
which expressly relate to an earlier date);
(c) There shall not have been commenced against the Parent or
any Consolidated Party an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto; and
(e) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations
plus Swingline Loans shall not exceed the Revolving Committed Amount
and (ii) the LOC Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in clauses (b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 FINANCIAL CONDITION.
(a) The audited consolidated balance sheets and income
statements of the Consolidated Parties for the fiscal year ended
December 31, 2000 (including the notes thereto) (i) have been audited
by KPMG Peat Marwick, (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and
59
(iii) present fairly in all material respects (on the basis disclosed
in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the
Consolidated Parties as of such date and for such periods. The
unaudited interim balance sheets of the Consolidated Parties as at the
end of, and the related unaudited interim statements of earnings and of
cash flows for, each fiscal quarterly period ended after December 31,
2000 and prior to the Closing Date (i) have been prepared in accordance
with GAAP consistently applied throughout the periods covered thereby,
and (ii) present fairly in all material respects the consolidated and
consolidating financial condition, results of operations and cash flows
of the Consolidated Parties as of such date and for such periods except
that they do not contain the materials and disclosures to be found in
notes to financial statements prepared in accordance with GAAP nor do
they reflect year-end adjustments. During the period from December 31,
2000 to and including the Closing Date, there has been no sale,
transfer or other disposition by any Consolidated Party of any material
part of the business or property of the Consolidated Parties, taken as
a whole, and no purchase or other acquisition (other than O'Xxxxx
Xxxxxx International (USA), Inc. and its subsidiaries) by any of them
of any business or property (including any Capital Stock of any other
Person) material in relation to the consolidated financial condition of
the Consolidated Parties, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes
thereto. Except as set forth on Schedule 6.1(a), as of the Closing
Date, the Borrower and its Subsidiaries have no material liabilities
(contingent or otherwise) that are not reflected in the foregoing
financial statements or in the notes thereto.
(b) The financial statements delivered pursuant to Section
7.1(a) and (b) have been prepared in accordance with GAAP (except as
may otherwise be permitted under Section 7.1(a) and (b)) and present
fairly in all material respects (on the basis disclosed in the
footnotes, if any, to such financial statements) the consolidated and
consolidating financial condition, results of operations and cash flows
of the Consolidated Parties as of such date and for such periods.
6.2 NO MATERIAL CHANGE.
Since June 30, 2001, there has been no development or event relating to
or affecting the Parent or any Consolidated Party which has had or could
reasonably be expected to have a Material Adverse Effect.
6.3 ORGANIZATION AND GOOD STANDING.
Each of the Parent and the Consolidated Parties (a) is duly organized,
validly existing and is in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has the corporate or other necessary
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged and (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing could not reasonably be expected to have a
Material Adverse Effect.
60
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate or other
necessary action to authorize the borrowings and other extensions of credit on
the terms and conditions of this Credit Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. No consent or authorization of, filing with, notice to or other similar
act by or in respect of, any Governmental Authority or any other Person is
required to be obtained or made by or on behalf of any Credit Party in
connection with the borrowings or other extensions of credit hereunder, with the
execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party, except for (i) consents,
authorizations, notices and filings described in Schedule 6.4, all of which have
been obtained or made or have the status described in such Schedule 6.4 and (ii)
filings to perfect the Liens created by the Collateral Documents. This Credit
Agreement has been, and each other Credit Document to which any Credit Party is
a party will be, duly executed and delivered on behalf of the Credit Parties.
This Credit Agreement constitutes, and each other Credit Document to which any
Credit Party is a party when executed and delivered will constitute, a legal,
valid and binding obligation of such Credit Party enforceable against such party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational or governing documents of such
Person, (b) violate, contravene or materially conflict with any material
Requirement of Law or any other law, regulation (including, without limitation,
Regulation U or Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation, contravention,
conflict or default of which could reasonably be expected to have a Material
Adverse Effect, or (d) result in or require the creation of any Lien (other than
Permitted Liens) upon or with respect to its properties.
6.6 NO DEFAULT.
Neither the Parent nor any Consolidated Party is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default could have a Material Adverse
Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Agent.
61
6.7 OWNERSHIP.
Except to the extent the failure of which could not reasonably be
expected to have a Material Adverse Effect, each of the Parent and the
Consolidated Parties is the owner of, and has good and marketable title to, or a
valid leasehold interest in, all of its respective assets shown on the balance
sheet dated June 30, 2001 and all assets and properties acquired since the date
of such balance sheet, except for such properties as are no longer used or
useful in the conduct of such Person's business or as have been disposed of in
the ordinary course of business or as otherwise permitted by this Credit
Agreement, and except for minor defects in title that do not interfere with the
ability of such Person to conduct its business as now conducted, and none of
such assets is subject to any Lien other than Permitted Liens.
6.8 INDEBTEDNESS.
Except as otherwise permitted under Section 8.1, the Parent and the
Consolidated Parties have no Indebtedness.
6.9 LITIGATION.
Except as disclosed in Schedule 6.9, there are no actions, suits or
legal, equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Executive Officer of any Credit Party, threatened in writing
against the Parent or any Consolidated Party which could reasonably be expected
to have a Material Adverse Effect.
6.10 TAXES.
Each of the Parent and the Consolidated Parties has filed, or caused to
be filed, all material tax returns (Federal, state, local and foreign) required
to be filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other material taxes, fees, assessments and
other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) owing by it, except for such taxes (i) which
are not yet delinquent or (ii) that are being contested in good faith and by
proper proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware as of the Closing Date of any
proposed tax assessments by any taxing authority against the Parent or any
Consolidated Party.
6.11 COMPLIANCE WITH LAW.
Each of the Parent and the Consolidated Parties is in compliance with
all Requirements of Law and all other laws, rules, regulations, orders and
decrees (including without limitation Environmental Laws) applicable to it, or
to its properties, unless such failure to comply could not reasonably be
expected to have a Material Adverse Effect. No Requirement of Law could
reasonably be expected to cause a Material Adverse Effect.
62
6.12 ERISA.
Except as disclosed and described in Schedule 6.12 attached hereto:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the Executive Officers of the
Credit Parties, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance
with its own terms and in material compliance with the provisions of
ERISA, the Code, and any other applicable Federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither the Parent, any Consolidated Party nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Executive
Officers of the Credit Parties, could be reasonably expected to incur,
any withdrawal liability under ERISA to any Multiemployer Plan or
Multiple Employer Plan. Neither the Parent, any Consolidated Party nor
any ERISA Affiliate would become subject to any withdrawal liability
under ERISA if the Parent, any Consolidated Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. Neither
the Parent, any Consolidated Party nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the
meaning of Section 4245 of ERISA), or has been terminated (within the
meaning of Title IV of ERISA), and no Multiemployer Plan is, to the
best knowledge of the Executive Officers of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject the Parent, any Consolidated Party or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l)
of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Parent, any Consolidated Party or any
ERISA Affiliate has agreed or is required to indemnify any Person
against any such liability.
63
(e) Neither the Parent, any Consolidated Party nor any ERISA
Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan which is
a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects of such sections.
(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is subject
to the prohibitions of Sections 404, 406 or 407 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975
of the Code. The representation by the Credit Parties in the preceding
sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation in Section 11.15 with respect to their source
of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance
company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
compliance with the regulations issued under Section 401(c)(1)(A) of
ERISA, or the issuance of any other prohibited transaction exemption or
similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit
plan" within the meaning of Section 3(3) of ERISA or a "plan" within
the meaning of Section 4975(e)(1) of the Code.
6.13 CORPORATE STRUCTURE; CAPITAL STOCK, ETC.
The capital and ownership structure of the Parent and the Consolidated
Parties as of the Closing Date is as described in Schedule 6.13A. Set forth on
Schedule 6.13B is a complete and accurate list as of the Closing Date with
respect to the Borrower and each of its direct and indirect Subsidiaries of (i)
jurisdiction of incorporation, (ii) number of shares of each class of Capital
Stock outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Parent and the Consolidated Parties
and (iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect
thereto. The outstanding Capital Stock of all such Persons is validly issued,
fully paid and non-assessable and as of the Closing Date is owned by the Parent
and the Consolidated Parties, directly or indirectly, in the manner set forth on
Schedule 6.13B, free and clear of all Liens (other than Permitted Liens). As of
the Closing Date, other than as set forth in Schedule 6.13B, neither the
Borrower nor any of its Subsidiaries has outstanding any securities convertible
into or exchangeable for its Capital Stock nor does any such Person have
outstanding any rights to subscribe for or to purchase any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its Capital Stock.
6.14 GOVERNMENTAL REGULATIONS, ETC.
(a) None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act, the Securities Exchange Act or any of
64
Regulations U and X. If requested by any Lender or the Agent, the
Borrower will furnish to the Agent and each Lender a statement, in
conformity with the requirements of FR Form U-1 referred to in
Regulation U, that no part of the Letters of Credit or proceeds of the
Loans will be used, directly or indirectly, for the purpose of "buying"
or "carrying" any "margin stock" within the meaning of Regulations U
and X, or for the purpose of purchasing or carrying or trading in any
securities.
(b) Neither the Parent nor any of the Consolidated Parties is
(i) an "investment company", or a company "controlled" by "investment
company", within the meaning of the Investment Company Act of 1940, as
amended, (ii) a "holding company" as defined in, or otherwise subject
to regulation under, the Public Utility Holding Company Act of 1935, as
amended or (iii) subject to regulation under any other Federal or state
statute or regulation which limits its ability to incur Indebtedness.
6.15 PURPOSE OF LOANS AND LETTERS OF CREDIT.
The Borrower will use the proceeds of the Revolving Loans to provide
for working capital and general corporate purposes of the Borrower and its
Subsidiaries (including, without limitation, Permitted Acquisitions). The
Letters of Credit shall be used only for or in connection with appeal bonds,
reimbursement obligations arising in connection with surety and reclamation
bonds, reinsurance, domestic or international trade transactions and obligations
not otherwise aforementioned relating to transactions entered into by the
applicable account party in the ordinary course of business.
6.16 ENVIRONMENTAL MATTERS.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or
operated by the Parent and the Consolidated Parties (the "Real
Properties") and all operations at the Real Properties are in
compliance with all applicable Environmental Laws, there is no
violation of any Environmental Law with respect to the Real Properties
or the businesses operated by the Parent and the Consolidated Parties
(the "Businesses"), and there are no conditions relating to the Real
Properties or the Businesses that are reasonably likely to give rise to
liability under any applicable Environmental Laws.
(b) None of the Real Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Real Properties in amounts or concentrations that constitute or
constituted a violation of, or are reasonably likely to give rise to
liability under, Environmental Laws.
(c) Neither the Parent nor any Consolidated Party has received
any written or verbal notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Real
Properties
65
or the Businesses, nor does any Executive Officer of any Credit Party
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by or on behalf of the
Parent or any Consolidated Party in violation of, or in a manner that
are reasonably likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of the Executive Officers
of the Credit Parties, threatened, under any Environmental Law to which
the Parent or any Consolidated Party is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Parent or the Consolidated Parties, the Real Properties
or the Businesses.
(f) There has been no release, or threat of release, of
Materials of Environmental Concern at or from the Real Properties, or
arising from or related to the operations (including, without
limitation, disposal) of the Parent or any Consolidated Party in
connection with the Real Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that are
reasonably likely to give rise to liability under Environmental Laws.
6.17 INTELLECTUAL PROPERTY.
Each of the Parent and the Consolidated Parties owns, or has the legal
right to use, all trademarks, tradenames, copyrights, technology, know-how and
processes (the "Intellectual Property") necessary for each of them to conduct
its business as currently conducted except for those the failure to own or have
such legal right to use could not reasonably be expected to have a Material
Adverse Effect. Set forth on Schedule 6.17 is a list of all Intellectual
Property registered with the United States Copyright Office or the United States
Patent and Trademark Office and owned by each of the Parent and the Consolidated
Parties or that the Parent or any Consolidated Party has the right to use.
Except as provided on Schedule 6.17, no claim has been asserted in writing and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Credit Party know of any such claim, and, to the
knowledge of the Executive Officers of the Credit Parties, the use of such
Intellectual Property by the Parent or any Consolidated Party does not infringe
on the rights of any Person, except for such claims and infringements that, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.18 SOLVENCY.
The Credit Parties, on a consolidated basis, are Solvent.
66
6.19 INVESTMENTS.
All Investments of each of the Parent and the Consolidated Parties are
Permitted Investments.
6.20 BUSINESS LOCATIONS.
Set forth on Schedule 6.20(a) is a list as of the Closing Date of all
real property located in the United States and owned or leased by any Credit
Party with street address and state where located. Set forth on Schedule 6.20(b)
is a list as of the Closing Date of all locations where any tangible personal
property of a Credit Party is located, including street address and state where
located. Set forth on Schedule 6.20(c) is the chief executive office and
principal place of business of each Credit Party as of the Closing Date.
6.21 DISCLOSURE.
Taken as whole, this Credit Agreement, the financial statements
referred to in Section 6.1(a) and the other documents, certificates or
statements furnished by or on behalf of the Parent or any Consolidated Party in
connection with this Credit Agreement do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein or herein in light of the circumstances under which
they were made not misleading.
6.22 NO BURDENSOME RESTRICTIONS.
Neither the Parent nor any Consolidated Party is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.23 BROKERS' FEES.
Other than in connection with the Initial Public Offering, neither the
Parent nor any Consolidated Party has any obligation to any Person in respect of
any finder's, broker's, investment banking or other similar fee in connection
with any of the transactions contemplated under the Credit Documents.
6.24 LABOR MATTERS.
Other than as set forth on Schedule 6.24, there are no collective
bargaining agreements or Multiemployer Plans covering the employees of the
Parent or any Consolidated Party as of the Closing Date and neither the Parent
nor any of the Consolidated Parties has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five years.
67
6.25 NATURE OF BUSINESS.
As of the Closing Date, the Parent and the Consolidated Parties are
engaged in the business of providing temporary medical staffing services.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding or any Letter of Credit is
outstanding, and until all of the Commitments hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Agent:
(a) Annual Financial Statements.
(i) As soon as available, and in any event within 90
days after the close of each fiscal year of the Consolidated
Parties, a consolidated and consolidating balance sheet and
income statement of the Consolidated Parties as of the end of
such fiscal year, together with related consolidated
statements of retained earnings and cash flows for such fiscal
year, in each case setting forth in comparative form figures
for the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and
reasonably acceptable to the Agent, and accompanied by a
certificate of an Executive Officer of the Borrower to the
effect that such annual financial statements fairly present in
all material respects the financial condition of the
Consolidated Parties and have been prepared in accordance with
GAAP and the absence of footnotes.
(ii) As soon as available, and in any event within 90
days after the close of each fiscal year of the Parent, a
consolidated and consolidating balance sheet and income
statement of the Parent as of the end of such fiscal year,
together with related consolidated statements of retained
earnings and cash flows for such fiscal year, in each case
setting forth in comparative form figures for the preceding
fiscal year, all such financial information described above to
be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing
reasonably acceptable to the Agent and whose opinion shall be
to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with
which such accountants concur) and shall not be limited as to
the scope of the audit or qualified as to the status of the
Parent as a going concern or any other material qualifications
or exceptions. Notwithstanding the foregoing, the Lenders
agree that, to the extent that the
68
requirements of this paragraph (ii) are contained in the
annual report of the Parent for such fiscal year on Form 10-K
as filed with the SEC (the "Annual Report"), the obligations
of the Credit Parties under this paragraph (ii) will be
satisfied by delivering to the Agent, within 90 days after the
end of such fiscal year, the Annual Report, with copies for
each Lender.
(b) Quarterly Statements. As soon as available, and in any
event within 45 days after the close of each of the first three fiscal
quarters of the Consolidated Parties, a consolidated and consolidating
balance sheet and income statement of the Consolidated Parties as of
the end of such fiscal quarter, together with related consolidated
statements of retained earnings and cash flows for such fiscal quarter,
in each case setting forth in comparative form figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Agent, and accompanied by a certificate of
an Executive Officer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the
financial condition of the Consolidated Parties and have been prepared
in accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments and the absence of footnotes.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a)(i) and 7.1(b)
above, a certificate of an Executive Officer of the Borrower
substantially in the form of Exhibit 7.1(c), (i) demonstrating
compliance with the financial covenants contained in Section 7.11 by
calculation thereof as of the end of each such fiscal period and (ii)
stating that no Default or Event of Default exists, or, if any Default
or Event of Default does exist, specifying the nature and extent
thereof and what action the Credit Parties propose to take with respect
thereto.
(d) Annual Business Plan and Budgets. As soon as available but
in any event no later than 45 days following the end of each fiscal
year of the Borrower, an annual business plan and budget of the
Consolidated Parties containing, among other things, pro forma
financial statements for the next four fiscal quarters and the next
fiscal year.
(e) Compliance With Certain Provisions of the Credit
Agreement. Within 90 days after the end of each fiscal year of the
Credit Parties, a certificate executed by an Executive Officer of the
Borrower regarding the amount of all Asset Dispositions that were made
during the prior fiscal year.
(f) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a)(ii), a
certification of the accountants conducting the annual audit stating
that they have reviewed this Credit Agreement as it relates to
accounting and other financial matters and stating further whether, in
the course of their audit, they have become aware of any Default or
Event of Default and, if any such Default or Event of Default exists,
specifying the nature and extent thereof, provided that such
accountants shall not be liable by reason of any failure to obtain
knowledge of any such Default or Event of Default that would not be
disclosed in the course of their audit examination.
69
(g) Auditor's Reports. Within a reasonable time period after
receipt, a copy of any "management letter" submitted by independent
accountants to the Parent or any Consolidated Party in connection with
any annual audit of the books of such Person.
(h) Reports. Promptly upon transmission or receipt thereof,
(i) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency
(other than exhibits and registration statements on Form S-8) and (ii)
upon the request of the Agent, all reports and written information to
and from the United States Environmental Protection Agency, or any
state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or
safety matters.
(i) Notices. Upon any Executive Officer of a Credit Party
obtaining knowledge thereof, the Credit Parties will give written
notice to the Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose
to take with respect thereto, and (ii) the occurrence of any of the
following with respect to the Parent or any Consolidated Party (A) the
pendency or commencement of any litigation, arbitral or governmental
proceeding against such Person which if adversely determined is
reasonably likely to have a Material Adverse Effect or (B) the
institution of any proceedings against such Person with respect to, or
the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any Federal,
state or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which could reasonably be expected
to have a Material Adverse Effect.
(j) ERISA. Upon any Executive Officer of a Credit Party
obtaining knowledge thereof, the Credit Parties will give written
notice to the Agent promptly (and in any event within five Business
Days) of: (i) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or might reasonably lead to, an
ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Credit Parties or any ERISA Affiliates,
or of a determination that any Multiemployer Plan is in reorganization
or insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Parent, any Consolidated
Party or any ERISA Affiliate is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv)
any change in the funding status of any Plan that could reasonably be
expected to have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a
statement by an Executive Officer of the Borrower briefly setting forth
the details regarding such event, condition, or notice, and the action,
if any, which has been or is being taken or is proposed to be taken by
the Credit Parties with respect thereto. Promptly upon request, the
Credit Parties shall furnish the Agent and the Lenders with such
additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each
70
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(k) Environmental. Upon the reasonable written request of the
Agent following the occurrence of any event or the discovery of any
condition which the Agent reasonably believes has caused (or could be
reasonably expected to cause) the representations and warranties set
forth in Section 6.16 to be untrue in any material respect, the Credit
Parties will furnish or cause to be furnished to the Agent, at the
Credit Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant reasonably
acceptable to the Agent as to the nature and extent of the presence of
any Materials of Environmental Concern on any Real Properties (as
defined in Section 6.16) and as to the compliance by the Parent, any
Consolidated Party with Environmental Laws at such Real Properties. If
the Credit Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request then the
Agent may arrange for same, and the Credit Parties hereby grant to the
Agent and their representatives access to the Real Properties to
reasonably undertake such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable cost of any
assessment arranged for by the Agent pursuant to this provision will be
payable by the Credit Parties on demand and added to the obligations
secured by the Collateral Documents.
(l) Additional Patents and Trademarks. At the time of delivery
of the financial statements and reports provided for in Section 7.1(a),
a report signed by an Executive Officer of the Borrower setting forth
(i) a list of registration numbers for all patents, trademarks, service
marks, tradenames and copyrights awarded to the Parent or any
Consolidated Party since the last day of the immediately preceding
fiscal year and (ii) a list of all patent applications, trademark
applications, service xxxx applications, trade name applications and
copyright applications submitted by the Parent or any Consolidated
Party since the last day of the immediately preceding fiscal year and
the status of each such application, all in such form as shall be
reasonably satisfactory to the Agent.
(m) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Parent or any Consolidated Party as the
Agent may reasonably request.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited by Section 8.4 or Section 8.5, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, authority
and material rights and franchises.
71
7.3 BOOKS AND RECORDS.
Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.4 COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Credit Party will, and will cause each of its Subsidiaries to, pay
and discharge (a) all material taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that neither the Parent nor any Consolidated Party shall be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.
7.6 INSURANCE.
(a) Each Credit Party will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with
normal industry practice (or as otherwise required by the Collateral
Documents). The Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and each
provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished
to the Agent, that it will give the Agent thirty (30) days prior
written notice before any such policy or policies shall be altered or
canceled. The present insurance coverage of the Parent and the
Consolidated Parties as of the Closing Date is outlined as to carrier,
policy number, expiration date, type and amount on Schedule 7.6.
(b) In the event that the Parent or any of the Consolidated
Parties receive Net Cash Proceeds in excess of $100,000 in aggregate
amount during any fiscal year of the Parent and the Consolidated
Parties ("Excess Proceeds") on account of any loss of, damage
72
to or destruction of, or any condemnation or other taking for public
use of, any Property of the Parent or the Consolidated Parties (with
respect to the Parent or any Consolidated Party, an "Involuntary
Disposition"), the Credit Parties shall, within the period of 360 days
following the date of receipt of such Excess Proceeds, apply (or cause
to be applied) an amount equal to such Excess Proceeds to (i) make
Eligible Reinvestments (including but not limited to the repair or
replacement of the related Property) or (ii) prepay the Loans (and cash
collateralize LOC Obligations) in accordance with the terms of Section
3.3(b)(ii)(B); provided, however, that such Person shall not undertake
replacement or restoration of such Property unless, after giving pro
forma effect to any Funded Indebtedness to be incurred in connection
with such replacement or restoration, no Default or Event of Default
would have occurred as of the most recent fiscal quarter end preceding
the date of determination with respect to which the Agent has received
the Required Financial Information (assuming, for purposes hereof, that
such Funded Indebtedness was incurred as of the first day of the four
fiscal-quarter period ending as of such fiscal quarter end). All
insurance proceeds shall be subject to the security interest of the
Agent (for the ratable benefit of the Lenders) under the Collateral
Documents. Pending final application of any Excess Proceeds, the Credit
Parties may apply such Excess Proceeds to temporarily reduce the
Revolving Loans or to make Permitted Investments.
7.7 MAINTENANCE OF PROPERTY.
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
7.8 PERFORMANCE OF OBLIGATIONS.
Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its material obligations under the terms
of all material agreements, indentures, mortgages, security agreements or other
debt instruments to which it is a party or by which it is bound.
7.9 USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
7.10 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Agent, including, without limitation, independent accountants,
agents, attorneys, and appraisers to visit and inspect its property, including
its books and records, its accounts receivable and inventory, its facilities and
its
73
other business assets, and to make photocopies or photographs thereof and to
write down and record any information such representative obtains and shall
permit the Agent or its representatives to investigate and verify the accuracy
of information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of such Person; provided, however, that,
unless an Event of Default shall be in existence, the Agent shall not exercise
it rights under this sentence more often than one time during any calendar year.
The Credit Parties agree that the Agent, and its representatives, may conduct an
annual audit of the Collateral, at the expense of the Credit Parties not to
exceed $10,000 per annum.
7.11 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Credit Parties shall not permit the
Leverage Ratio as of the last day of any fiscal quarter of the
Consolidated Parties to be greater than 2.00 to 1.00.
(b) Fixed Charge Coverage Ratio. The Credit Parties shall not
permit the Fixed Charge Coverage Ratio as of the last day of any fiscal
quarter of the Consolidated Parties to be less than 3.00 to 1.00.
7.12 ADDITIONAL GUARANTORS.
As soon as practicable and in any event within 30 days after any Person
becomes a direct or indirect Subsidiary of the Parent, the Borrower shall
provide the Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall (a) if
such Person is a Domestic Subsidiary, (i) cause such Person to execute a Joinder
Agreement in substantially the same form as Exhibit 7.12 and (ii) cause 100% of
the issued and outstanding Capital Stock of such Person to be delivered (if
certificated) to the Agent (together with undated stock powers signed in blank)
and pledged to the Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge Agreement and otherwise in form reasonably
acceptable to the Agent, (b) if such Person is a direct Foreign Subsidiary of a
Credit Party, cause 65% (or such greater percentage that, due to a change in an
applicable Requirement of Law after the date hereof, (i) could not reasonably be
expected to cause the undistributed earnings of such Foreign Subsidiary as
determined for United States federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary's United States parent and (ii) could
not reasonably be expected to cause any material adverse tax consequences) of
the issued and outstanding Capital Stock entitled to vote (within the meaning of
Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding
Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) of such Person to be delivered (if certificated) to the Agent
(together with undated stock powers signed in blank (unless, with respect to a
Foreign Subsidiary, such stock powers are deemed unnecessary by the Agent in its
reasonable discretion under the law of the jurisdiction of incorporation of such
Person)) and pledged to the Agent pursuant to an appropriate pledge agreement(s)
in substantially the form of the Pledge Agreement and otherwise in form
acceptable to the Agent and (c) cause such Person to (i) if such Person is a
Domestic Subsidiary which has any real Property required by Section 7.13 to be
pledged to the Agent, use commercially reasonable efforts to cause to be
delivered to the Agent with respect to such real Property, such real property
documents, instruments and other items, in form reasonably acceptable to the
Agent, as the Agent shall reasonably request in order the provide the
74
Agent with a first priority, perfected and title insured Lien in such real
Property to secure the Credit Party Obligations and (ii) deliver such other
documentation as the Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, environmental reports,
landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Agent's Liens thereunder) and other items of the types
required to be delivered pursuant to Section 5.1(b), (c) and (d), all in form,
content and scope reasonably satisfactory to the Agent.
7.13 PLEDGED ASSETS.
Each Credit Party will (i) cause all of its owned Property other than
Excluded Property, and (ii) to the extent deemed to be material by the Agent or
the Requisite Lender in its or their sole reasonable discretion, use
commercially reasonable efforts to cause all of its leased Property other than
Excluded Property, to be subject at all times to first priority, perfected and,
in the case of owned real Property, title insured Liens in favor of the Agent to
secure the Credit Party Obligations pursuant to the terms and conditions of the
Collateral Documents or, with respect to any such Property acquired subsequent
to the Closing Date, such other additional security documents as the Agent shall
reasonably request, subject in any case to Permitted Liens. In keeping with the
requirements of the preceding sentence, each Credit Party will use commercially
reasonable efforts to cause to be delivered to the Agent, with respect to any
real Property acquired by such Person subsequent to the Closing Date and
required by this Section 7.13 to be pledged to the Agent, such real property
documents, instruments and other items, in form reasonably acceptable to the
Agent, as the Agent shall reasonably request in order the provide the Agent with
a first priority, perfected and title insured Lien in such real Property to
secure the Credit Party Obligations. Without limiting the generality of the
above, the Credit Parties will cause (i) 100% of the issued and outstanding
Capital Stock of the Borrower, (ii) 100% of the issued and outstanding Capital
Stock of each Domestic Subsidiary and (iii) 65% (or such greater percentage
that, due to a change in an applicable Requirement of Law after the date hereof,
(i) could not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for United States federal income tax purposes
to be treated as a deemed dividend to such Foreign Subsidiary's United States
parent and (ii) could not reasonably be expected to cause any material adverse
tax consequences) of the issued and outstanding Capital Stock entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued
and outstanding Capital Stock not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) of each Foreign Subsidiary directly owned by the
Parent or any Domestic Subsidiary to be subject at all times to a first
priority, perfected Lien in favor of the Agent pursuant to the terms and
conditions of the Collateral Documents or such other security documents as the
Agent shall reasonably request.
7.14 ENVIRONMENTAL.
The Parent and the Consolidated Parties will conduct and complete all
investigations, studies, sampling, and testing and all remedial, removal, and
other actions necessary to address all
75
Materials of Environmental Concern on, from or affecting any of the Real
Properties to the extent necessary to be in compliance with all Environmental
Laws and with the validly issued orders and directives of all Governmental
Authorities with jurisdiction over such Real Properties to the extent any
failure to undertake such action could reasonably be expected to have a Material
Adverse Effect.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding or any Letter of Credit is
outstanding, and until all of the Commitments hereunder shall have terminated:
8.1 INDEBTEDNESS.
The Credit Parties will not permit the Parent or any Consolidated Party
to contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set
forth in Schedule 8.1 (and renewals, refinancings and extensions
thereof on terms and conditions no less favorable to such Person than
such existing Indebtedness);
(c) purchase money Indebtedness (including obligations in
respect of Capital Leases or Synthetic Leases) hereafter incurred by
the Borrower or any of its Subsidiaries to finance the purchase of
fixed assets provided that (i) the total of all such Indebtedness under
this clause (c) for all such Persons taken together shall not exceed an
aggregate principal amount of $5,000,000 at any one time outstanding;
(ii) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed; and (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) obligations of the Borrower in respect of Hedging
Agreements entered into in order to manage existing or anticipated
interest rate or exchange rate risks and not for speculative purposes;
(e) intercompany Indebtedness arising out of loans, advances
and Guaranty Obligations permitted under Section 8.6;
(f) Subordinated Indebtedness of the Parent in an aggregate
principal amount not to exceed $25,000,000 at any one time outstanding
plus any accumulated accrued pay-
76
in-kind interest on such Indebtedness; provided, that such Subordinated
Indebtedness does not provide for the payment of cash interest prior to
six months after the Maturity Date;
(g) Indebtedness of any Subsidiary of the Borrower that
existed at the time such Person became a Subsidiary of the Borrower in
connection with a Permitted Acquisition and Indebtedness assumed by the
Borrower or any Subsidiary of the Borrower in connection with a
Permitted Acquisition; provided that (i) such Indebtedness was not
incurred in contemplation of such Permitted Acquisition; (ii) the total
of all such Indebtedness under this clause (h) for all such Persons
taken together shall not exceed an aggregate principal amount of
$5,000,000 at any one time outstanding; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(h) Subordinated Indebtedness of the Borrower in an aggregate
principal amount not to exceed $25,000,000 at any one time outstanding
plus any accumulated accrued pay-in-kind interest on such Indebtedness;
(i) other unsecured Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount not to exceed $10,000,000
at any one time outstanding; and
(j) Guaranty Obligations of the Parent, the Borrower or any of
the Subsidiaries of the Borrower with respect to any Indebtedness of
the Borrower or any of its Subsidiaries permitted by this Section 8.1.
8.2 LIENS.
The Credit Parties will not permit the Parent or any Consolidated Party
to contract, create, incur, assume or permit to exist any Lien with respect to
any of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 NATURE OF BUSINESS.
The Credit Parties will not permit the Parent or any Consolidated Party
to engage at any time in any business or business activity other than the
business conducted by such Person as of the Closing Date and any business
reasonably related or similar thereto.
8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.
Except in connection with a Permitted Asset Disposition, the Credit
Parties will not permit the Parent or any Consolidated Party to merge or
consolidate or liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution); provided that, notwithstanding the foregoing provisions of this
Section 8.4 but subject to the terms of Sections 7.12 and 7.13, (a) the Borrower
may merge or consolidate with any of its Subsidiaries; provided that the
Borrower shall be the continuing or surviving corporation, (b) any Credit Party
other than the Parent or the Borrower may merge or consolidate with any other
Credit Party other than the Parent or the Borrower, (c) any Consolidated
77
Party which is not a Credit Party may be merged or consolidated with or into any
Credit Party other than the Parent provided that such Credit Party shall be the
continuing or surviving corporation, (d) any Consolidated Party which is not a
Credit Party may be merged or consolidated with or into any other Consolidated
Party which is not a Credit Party, (e) any Subsidiary of the Borrower may merge
with any Person that is not a Credit Party in connection with an Asset
Disposition permitted under Section 8.5, (f) the Borrower or any Subsidiary of
the Borrower may merge with any Person other than a Consolidated Party in
connection with a Permitted Acquisition provided that, if such transaction
involves the Borrower, the Borrower shall be the continuing or surviving
corporation and (g) any Subsidiary of the Borrower may dissolve, liquidate or
wind up its affairs at any time provided that such dissolution, liquidation or
winding up, as applicable, could not reasonably be expected to have a Material
Adverse Effect. It is understood that this Section 8.4 shall not prohibit the
Parent or any Consolidated Party from entering into any agreement of merger or
consolidation, but shall prohibit the consummation of any such merger or
consolidation (except as permitted pursuant to this Section 8.4).
8.5 ASSET DISPOSITIONS.
The Credit Parties will not permit the Parent or any Consolidated Party
to make any Asset Disposition other than an Excluded Asset Disposition unless
(a) at least 80% of the consideration paid in connection therewith shall consist
of cash or Cash Equivalents, (b) if such transaction is a Sale and Leaseback
Transaction, such transaction is not prohibited by the terms of Section 8.13,
(c) such transaction does not involve the sale or other disposition of a
minority equity interest in any Consolidated Party, (d) such transaction does
not involve a sale or other disposition of receivables other than receivables
owned by or attributable to other Property concurrently being disposed of in a
transaction otherwise permitted under this Section 8.5, (e) the aggregate net
book value of all of the assets sold or otherwise disposed of by the Parent and
the Consolidated Parties in all such transactions after the Closing Date shall
not exceed $5,000,000, (f) if the aggregate net book value of the assets being
sold or otherwise disposed of by the Parent and the Consolidated Parties in such
transaction exceeds $250,000, a certificate of an Executive Officer of the
Borrower specifying the anticipated date of such Asset Disposition, briefly
describing the assets to be sold or otherwise disposed of and setting forth the
net book value of such assets, the aggregate consideration and the Net Cash
Proceeds to be received for such assets in connection with such Asset
Disposition and (g) the Credit Parties shall, within the period of 360 days
following the consummation of such Asset Disposition (with respect to any such
Asset Disposition, the "Application Period"), apply (or cause to be applied) an
amount equal to the Net Cash Proceeds of such Asset Disposition to (i) make
Eligible Reinvestments or (ii) prepay the Loans (and cash collateralize LOC
Obligations) in accordance with the terms of Section 3.3(b)(ii)(A). Pending
final application of the Net Cash Proceeds of any Asset Disposition, the Parent
and the Consolidated Parties may apply such Net Cash Proceeds to temporarily
reduce the Revolving Loans or to make Investments in Cash Equivalents.
Upon a sale of assets or the sale of Capital Stock of a Consolidated
Party permitted by this Section 8.5, the Agent shall (to the extent applicable)
deliver to the Credit Parties, upon the Credit Parties' request and at the
Credit Parties' expense, such documentation as is reasonably necessary to
evidence the release of the Agent's security interest, if any, in such assets or
Capital Stock, including, without limitation, amendments or terminations of UCC
financing statements, if any, the
78
return of stock certificates, if any, and the release of such Consolidated Party
from all of its obligations, if any, under the Credit Documents.
8.6 INVESTMENTS.
The Credit Parties will not permit the Parent or any Consolidated Party
to make Investments in or to any Person, except for Permitted Investments.
8.7 RESTRICTED PAYMENTS.
The Credit Parties will not permit the Parent or any Consolidated Party
to, directly or indirectly, declare, order, make or set apart any sum for or pay
any Restricted Payment, except (a) to make dividends or other distributions
payable to any Credit Party other than the Parent (directly or indirectly
through Subsidiaries), (b) payments by any Consolidated Parties to the Parent in
respect of the tax liability of the affiliated group of corporations that file
consolidated federal income tax returns (or that file state or local income tax
returns on a consolidated, combined, unitary or similar basis), (c) loans,
advances, dividends or distributions by any Consolidated Party to the Parent not
to exceed $500,000 in any fiscal year to enable the Parent to pay its costs
(including all professional fees and expenses) incurred to comply with its
reporting obligations under federal or state laws or in connection with
reporting obligations in respect of any Indebtedness of the Parent permitted
under Section 8.1, (d) loans, advances, dividends or distributions by any
Consolidated Party to the Parent to enable the Parent to pay for corporate,
administrative and operating expenses in the ordinary course of business
(including, without limitation, costs and expenses in connection with the
Initial Public Offering and advisory fees, commissions and expenses incurred by
a Credit Party in connection with any Permitted Acquisition or other business
combination permitted under this Credit Agreement) not to exceed $500,000 in any
fiscal year (exclusive of costs and expenses in connection with the Initial
Public Offering), (e) loans, advances, dividends or distributions by a
Consolidated Party to enable the Parent to pay an annual management fee to the
Sponsor Entities in an aggregate amount not to exceed $500,000 in any fiscal
year, (f) the repurchase, redemption or other acquisition or retirement for
value of any Capital Stock or any option to acquire Capital Stock of the Parent
held by members of senior management and other key employees of the Parent and
its Subsidiaries in an aggregate cash amount of up to $5,000,000 per year and
not to exceed $10,000,000 in the aggregate during the term of this Credit
Agreement, (g) as permitted by Section 8.8 or Section 8.9, (h) loans, advances,
dividends or distributions to the Parent to effect the consummation of the
Initial Public Offering, (i) payments in kind of interest accrued in respect of
any Subordinated Indebtedness, (j) the refinancing of any Subordinated
Indebtedness with the proceeds received from any Equity Issuance or other
Subordinated Indebtedness and (k) Restricted Payments in addition to the
foregoing in an amount not to exceed (x) 50% of Excess Cash Flow for each fiscal
year ended after the Closing Date minus (y) the cumulative aggregate amount of
Restricted Payments paid under Section 8.7(k) since the Closing Date minus (z)
the Used Revolving Committed Amount as of the date of such Restricted Payment.
8.8 OTHER INDEBTEDNESS, ETC.
The Credit Parties will not permit the Parent or any Consolidated Party
to (a) if any Default or Event of Default has occurred and is continuing or
would be directly or indirectly caused as a
79
result thereof, (i) after the issuance thereof, amend or modify any of the terms
of any Indebtedness of any such Person if such amendment or modification would
add or change any terms in a manner adverse to such Person, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof, or (ii) make (or give any notice
with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any other
Indebtedness of such Person, (b) shorten the final maturity of any Subordinated
Indebtedness or amend or modify any of the subordination provisions of any
Subordinated Indebtedness, (c) make interest payments in respect of any
Subordinated Indebtedness in violation of the subordination provisions of the
documents evidencing and/or governing such Subordinated Indebtedness or (d)
except as otherwise permitted under Section 8.7, make (or give any notice with
respect thereto) any voluntary or optional payment or prepayment, redemption,
acquisition for value or defeasance of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any
Subordinated Indebtedness.
8.9 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not permit the Parent or any Consolidated Party
to enter into or permit to exist any transaction or series of transactions with
any officer, director, shareholder, Subsidiary or Affiliate of such Person other
than (a) advances of working capital to any Credit Party other than the Parent,
(b) transfers of cash and assets to any Credit Party other than the Parent, (c)
transactions expressly permitted by Section 8.1, Section 8.4, Section 8.5,
Section 8.6, or Section 8.7, (d) customary compensation and reimbursement of
expenses of officers and directors, (e) transactions described on Schedule 8.9
and (f) except as otherwise specifically limited in this Credit Agreement, other
transactions which are entered into in the ordinary course of such Person's
business on terms and conditions substantially as favorable to such Person as
would be obtainable by it in a comparable arms-length transaction with a Person
other than an officer, director, shareholder, Subsidiary or Affiliate.
8.10 ORGANIZATIONAL DOCUMENTS; FISCAL YEAR.
The Credit Parties will not permit the Parent or any Consolidated Party
to (i) amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational document) or bylaws (or other similar
document) in any manner materially adverse to the Lenders or (ii) change its
fiscal year.
8.11 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit the Parent or any Consolidated Party
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Person to (a) pay dividends or make any other distributions to any Credit Party
on its Capital Stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation owed
to any Credit Party,
80
(c) make loans or advances to any Credit Party, (d) sell, lease or transfer any
of its properties or assets to any Credit Party, or (e) act as a Credit Party
and pledge its assets pursuant to the Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (a)-(d) above) for such encumbrances
or restrictions existing under or by reason of (i) this Credit Agreement and the
other Credit Documents, (ii) documents evidencing and/or governing any
Subordinated Indebtedness to the extent consistent with the restrictions in this
Section 8.11, (iii) applicable law, (iv) any document or instrument governing
Indebtedness incurred pursuant to Section 8.1(c) or Section 8.1(g), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (v) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien or (vi) customary restrictions and conditions contained in
any agreement relating to the sale of any Property permitted under Section 8.5
pending the consummation of such sale.
8.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON PARENT.
Notwithstanding any other provisions of this Credit Agreement to the
contrary:
(a) The Credit Parties will not permit the Parent or any
Consolidated Party to (i) permit any Person (other than the Borrower or
any Wholly Owned Subsidiary of the Borrower) to own any Capital Stock
of any Subsidiary of the Borrower, except (A) to qualify directors
where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries or (B) as a result of or in connection with a
dissolution, merger, consolidation or disposition of a Subsidiary not
prohibited by Section 8.4 or Section 8.5, (ii) permit any Subsidiary of
the Borrower to issue or have outstanding any shares of preferred
Capital Stock or (iii) permit, create, incur, assume or suffer to exist
any Lien on any Capital Stock of any Subsidiary of the Borrower, except
for Permitted Liens.
(b) The Parent shall not (i) hold any material assets other
than the Capital Stock of the Borrower, (ii) have any liabilities other
than (A) Indebtedness permitted under Section 8.1, (B) tax liabilities
in the ordinary course of business, (C) loans, advances and payments
permitted under Section 8.9, (D) corporate, administrative and
operating expenses in the ordinary course of business and (E) other
liabilities under (1) the Credit Documents, (2) the documents
evidencing and/or governing any Subordinated Indebtedness, (3)
registration rights agreements, (4) stock option plans (including,
without limitation, those in existence on the Closing Date), or (5) any
other agreement, document or instrument related to any of the foregoing
or (iii) engage in any business other than (A) owning the Capital Stock
of the Borrower and activities incidental or related thereto, (B)
acting as a Guarantor hereunder and pledging its assets to the Agent,
for the benefit of the Lenders, pursuant to the Collateral Documents to
which it is a party, (C) activities related to its obligations under
the Securities Exchange Act, (D) acting as a borrower or guarantor, as
applicable, in respect of Indebtedness permitted under Section 8.1 and
(E) in connection with the exercise of its rights under and its
compliance with the obligations applicable to it under the documents
listed in clause (ii)(E) above.
81
8.13 SALE LEASEBACKS.
The Credit Parties will not permit the Parent or any Consolidated Party
to enter into any Sale and Leaseback Transaction.
8.14 CAPITAL EXPENDITURES.
The Credit Parties will not permit Consolidated Capital Expenditures
for any fiscal year to exceed $10,000,000 plus the unused amount available for
Consolidated Capital Expenditures under this Section 8.14 for the immediately
preceding fiscal year (excluding any carry forward available from any prior
fiscal year).
8.15 NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not permit the Parent or any Consolidated Party
to enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the existence of any Lien upon any of its Property in
favor of the Agent (for the benefit of the Lenders) for the purpose of securing
the Credit Party Obligations, whether now owned or hereafter acquired, or
requiring the grant of any security for any obligation if such Property is given
as security for the Credit Party Obligations, except (a) pursuant to any
document or instrument governing Indebtedness incurred pursuant to Section
8.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (b) pursuant to
any document or instrument governing Indebtedness incurred pursuant to Section
8.1(g), (c) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien and
(d) pursuant to customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.5, pending the
consummation of such sale.
8.16 LIMITATION ON FOREIGN OPERATIONS.
The Credit Parties will not permit (i) the Borrower and the Domestic
Subsidiaries to own at any time less than 90% of Consolidated Total Assets or
(ii) the portion of Consolidated EBITDA attributable to the Borrower and the
Domestic Subsidiaries on a consolidated basis for any four quarter period to be
less than 90% of total Consolidated EBITDA for such period.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence and during the
continuance of any of the following specified events (each an "Event of
Default"):
82
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal
of any of the Loans or of any reimbursement obligations
arising from drawings under Letters of Credit, or
(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when due of
any interest on the Loans or on any reimbursement obligations
arising from drawings under Letters of Credit, or of any Fees
or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was deemed to have
been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2, 7.9
or 7.11 or Section 8;
(ii) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.1(a)
or (b), 7.12 or 7.13 and such default shall continue
unremedied for a period of at least 15 days after the earlier
of an Executive Officer of a Credit Party becoming aware of
such default or notice thereof by the Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in clauses (a), (b), (c)(i) or (c)(ii) of this
Section 9.1) contained in this Credit Agreement or any other
Credit Document and such default shall continue unremedied for
a period of at least 30 days after the earlier of an Executive
Officer of a Credit Party becoming aware of such default or
notice thereof by the Agent; or
(d) Other Credit Documents. Except as a result of or in
connection with a dissolution, merger or disposition of a Subsidiary
not prohibited by Section 8.4 or Section 8.5, any Credit Document shall
fail to be in full force and effect or to give the Agent and/or the
Lenders the Liens, rights, powers and privileges purported to be
created thereby, or any Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in connection with
a dissolution, merger or disposition of a Subsidiary not prohibited by
Section 8.4 or Section 8.5, the guaranty given by any Guarantor
hereunder (including any Person after the Closing Date in
83
accordance with Section 7.12) or any provision thereof shall cease to be in full
force and effect, or any Guarantor (including any Person after the Closing Date
in accordance with Section 7.12) hereunder or any Person acting by or on behalf
of such Guarantor shall deny or disaffirm such Guarantor's obligations under
such guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to the Parent or any Consolidated Party; or
(g) Defaults under Other Indebtedness. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $2,000,000 in the aggregate for the Parent and
the Consolidated Parties taken as a whole, either (1) a default in any
payment shall occur and continue (beyond the applicable grace period
with respect thereto, if any) with respect to any such Indebtedness, or
(2) a default in the observance or performance of any other agreement
or condition relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or exist, the effect of which
default or other event or condition is to cause, or permit, the holder
or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (with the giving of notice, if required), any such
Indebtedness to become due prior to its stated maturity, or, in the
case of any such Indebtedness constituting a Guaranty Obligation, to
become due and payable; or
(h) Judgments. One or more judgments or decrees shall be
entered against one or more of the Parent and the Consolidated Parties
involving a liability of $2,000,000 or more in the aggregate (to the
extent not paid or fully covered by insurance provided by a carrier who
has acknowledged coverage and has the ability to perform) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such
event or condition could involve possible taxes, penalties, and other
liabilities in an aggregate amount in excess of $2,000,000: (i) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets
of the Parent, any Consolidated Party or any ERISA Affiliate in favor
of the PBGC or a Plan; (ii) an ERISA Event shall occur with respect to
a Single Employer Plan, which is, in the reasonable opinion of the
Agent, likely to result in the termination of such Plan for purposes of
Title IV of ERISA; (iii) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (A) the
termination of such Plan for purposes of Title IV of ERISA, or (B) the
Parent, any Consolidated Party or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of
(within the meaning of Section 4241 of ERISA), or insolvency (within
the meaning of Section 4245 of ERISA) of such Plan; or (iv) any
prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject the Parent, any
84
Consolidated Party or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which the
Parent, any Consolidated Party or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability; or
(j) Ownership. There shall occur a Change in Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and continuance of an Event of Default, the Agent
shall, upon the request and direction of the Requisite Lenders, by written
notice to the Credit Parties take any of the following actions:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice they will
immediately pay) to the Agent additional cash, to be held by the Agent,
for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and
all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then, without the
giving of any notice or other action by the Agent or the Lenders, (i) the
Commitments automatically shall terminate, (ii) all Loans, all reimbursement
obligations arising from drawings under Letters of Credit, all accrued interest
in respect thereof, all accrued and unpaid Fees and other indebtedness or
obligations owing to the Agent and/or any of the Lenders hereunder automatically
shall immediately become due and payable and (iii) the Credit Parties
automatically shall be obligated to pay to the Agent additional cash, to be held
by the Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent drawings
under all then outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
85
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT, POWERS AND IMMUNITIES.
Each Lender hereby irrevocably appoints and authorizes the Agent to act
as its agent under this Credit Agreement and the other Credit Documents with
such powers and discretion as are specifically delegated to the Agent by the
terms of this Credit Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. The Agent (which term as
used in this sentence and in Section 10.5 and the first sentence of Section 10.6
hereof shall include its Affiliates and its own and its Affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement and
shall not be a trustee or fiduciary for any Lender; (b) shall not be responsible
to the Lenders for any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Credit Document or any
certificate or other document referred to or provided for in, or received by any
of them under, any Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Credit Document, or any other
document referred to or provided for therein or for any failure by any Credit
Party or any other Person to perform any of its obligations thereunder; (c)
shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any
Credit Party or the satisfaction of any condition or to inspect the property
(including the books and records) of any Credit Party or any of its Subsidiaries
or Affiliates; and (d) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Credit Document, except for
its own gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
10.2 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any certification, notice,
instrument, writing, or other communication (including, without limitation, any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants, and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 11.3(b) hereof. As
to any matters not expressly provided for by this Credit Agreement, the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite
Lenders, and such instructions shall be binding on all of the Lenders; provided,
however, that the Agent shall not be required to take any action that exposes
the Agent to personal liability or that is contrary to any Credit Document
86
or applicable law or unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking any such action.
10.3 DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or a Credit Party specifying such Default or Event
of Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 10.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Requisite
Lenders (or such other Lenders as required by Section 11.6), provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders.
10.4 RIGHTS AS A LENDER.
With respect to its Commitment and the Loans made by it, Bank of
America (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank of America (and any successor
acting as Agent) and its Affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Credit Party or any of its Subsidiaries or Affiliates as if it
were not acting as Agent, and Bank of America (and any successor acting as
Agent) and its Affiliates may accept fees and other consideration from any
Credit Party or any of its Subsidiaries or Affiliates for services in connection
with this Credit Agreement or otherwise without having to account for the same
to the Lenders.
87
10.5 INDEMNIFICATION.
The Lenders agree to indemnify the Agent (to the extent not
reimbursed under Section 11.5 hereof, but without limiting the obligations of
the Credit Parties under such Section) ratably (in accordance with their
respective Revolving Commitments (or, if the Revolving Commitments have been
terminated, the outstanding Revolving Loans and Participation Interests in
Letters of Credit (including the Participation Interests of the Issuing
Lender(s) in Letters of Credit))), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees), or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Agent (including by
any Lender) in any way relating to or arising out of any Credit Document or the
transactions contemplated thereby or any action taken or omitted by the Agent
under any Credit Document; provided that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Person to be indemnified. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs or expenses payable by the Credit Parties under Section 11.5,
to the extent that the Agent is not promptly reimbursed for such costs and
expenses by the Credit Parties. The agreements in this Section 10.5 shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Credit Parties and
their Subsidiaries and decision to enter into this Credit Agreement and that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Credit Documents. Except for financial statements, notices and
other information delivered to the Agent by any of the Credit Parties pursuant
to the terms of Section 7.1 (which the Agent shall be required to deliver to
each of the Lenders promptly following receipt thereof by the Agent) and except
for any other notices, reports, and other documents and information expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition, or business of
any Credit Party or any of its Subsidiaries or Affiliates that may come into the
possession of the Agent or any of its Affiliates.
10.7 SUCCESSOR AGENT.
The Agent may resign at any time by giving notice thereof to the
Lenders and the Credit Parties. Upon any such resignation, the Requisite Lenders
shall have the right to appoint a successor Agent; provided that, unless an
Event of Default has occurred and is continuing at the time such appointment,
such successor Agent shall be approved by the Borrower (such approval not to be
unreasonably withheld or delayed). If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
88
Lenders, appoint a successor Agent which shall be a commercial bank organized
under the laws of the United States having combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor, such successor shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges, and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 10 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent. If no successor Agent has accepted appointment as Agent by
the date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Agent as provided for above; provided that, unless an Event of Default has
occurred and is continuing at the time such appointment, such successor Agent
shall be approved by the Borrower (such approval not to be unreasonably withheld
or delayed).
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Credit Parties and the
Agent, set forth below, and, in the case of the Lenders, set forth on Schedule
2.1(a), or at such other address as such party may specify by written notice to
the other parties hereto:
if to any Credit Party:
AMN Healthcare, Inc.
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Wheat and Partners, L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
00
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
for notices regarding borrowings, payments, conversions, fees,
interest, and other administrative matters:
Bank of America, N. A.
000 Xxxxx Xxxxx Xxxxxx
Location Code: NC1-001-15-04
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
for all other notices (including with respect to Defaults and
Events of Default, amendments, waivers and modifications of
the Credit Documents, assignments):
Bank of America, N. A.
Agency Management
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Location Code: CA5-701-05-19
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bank of America, N. A.
Location Code: NC1-007-13-06
000 Xxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.2 RIGHT OF SET-OFF; ADJUSTMENTS.
Upon the occurrence and during the continuance of any Event of Default,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its Affiliates)
to or for the credit or the account of any Credit Party against any and all of
the obligations of such
90
Person now or hereafter existing under this Credit Agreement, under the Notes,
under any other Credit Document or otherwise, irrespective of whether such
Lender shall have made any demand hereunder or thereunder and although such
obligations may be unmatured. Each Lender agrees promptly to notify any affected
Credit Party after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section 11.2 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
11.3 BENEFIT OF AGREEMENT.
(a) This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties
may assign or transfer any of its interests and obligations without
prior written consent of each of the Lenders; provided further that the
rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth
in this Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of an existing Lender or any fund that
invests in bank loans and is advised or managed by an
investment advisor to an existing Lender or an assignment of
all of a Lender's rights and obligations under this Credit
Agreement, any such partial assignment shall be in an amount
at least equal to $2,500,000 (or, if less, the remaining
amount of the Commitment being assigned by such Lender) or an
integral multiple of $1,000,000 in excess thereof;
(iii) [Reserved.]
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit 11.3(b), together with any
Note subject to such assignment and a processing fee of
$3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Credit Agreement. Upon the consummation of any
assignment pursuant to this Section 11.3(b), the assignor, the Agent
and the Credit Parties shall make appropriate arrangements so that as
soon as practicable new Notes are issued to the assignor and the
91
assignee. The assignee shall (to the extent required by Section 3.11)
deliver to the Credit Parties and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with
Section 3.11.
(c) The Agent shall maintain at its address referred to in
Section 11.1 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of
the Loans owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Credit Parties, the Agent and
the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Credit
Parties or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Any assignment of any Loan or other Credit
Party Obligations shall be effective only upon an entry with respect
thereto being made in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit 11.3(b) hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of
its Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and 3.12 (but only to the extent
that the selling Lender is so entitled) and (iv) the Credit Parties
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Credit Parties relating to the Credit Party
Obligations owing to such Lender and to approve any amendment,
modification, or waiver of any provision of this Credit Agreement
(other than amendments, modifications, or waivers (A) decreasing the
amount of principal of or the rate at which interest is payable on such
Loans or Notes, (B) extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or Notes, (C)
extending its Commitment, (D) except as the result of or in connection
with an Asset Disposition not prohibited by Section 8.5, releasing all
or substantially all of the Collateral or (E) except as the result of
or in connection with a dissolution, merger or disposition of a
Consolidated Party not prohibited by Section 8.4 or Section 8.5,
releasing the Borrower or substantially all of the other Credit Parties
from its or their obligations under the Credit Documents).
92
(f) Notwithstanding any other provision set forth in this
Credit Agreement, any Lender may at any time assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the
Parent or any of the Consolidated Parties in the possession of such
Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.14 hereof.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Agent or any Lender and any of the
Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Credit Parties to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent or the Lenders to any other or
further action in any circumstances without notice or demand.
11.5 EXPENSES; INDEMNIFICATION.
(a) The Credit Parties jointly and severally agree to pay on
demand all reasonable costs and expenses of the Agent in connection
with the syndication, preparation, execution, delivery, administration,
modification, and amendment of this Credit Agreement, the other Credit
Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising
the Agent as to its rights and responsibilities under the Credit
Documents. The Credit Parties further jointly and severally agree to
pay on demand all costs and expenses of the Agent and the Lenders, if
any (including, without limitation, reasonable attorneys' fees of a
single counsel for the Agent and the Lenders), in connection with the
enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Credit Documents and the other documents to be
delivered hereunder.
(b) The Credit Parties jointly and severally agree to
indemnify and hold harmless the Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents,
and advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that may be
incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation,
93
litigation, or proceeding or preparation of defense in connection
therewith) the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in
this Section 11.5 applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any of
the Credit Parties, their respective directors, shareholders or
creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Credit Parties
agree not to assert any claim against the Agent, any Lender, any of
their Affiliates, or any of their respective directors, officers,
employees, attorneys, agents, and advisers, on any theory of liability,
for special, indirect, consequential, or punitive damages arising out
of or otherwise relating to the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 11.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document
nor any of the terms hereof or thereof may be amended, changed, waived,
discharged or terminated unless such amendment, change, waiver, discharge or
termination is in writing entered into by, or approved in writing by, each of
the Credit Parties party thereto and the Requisite Lenders, provided, however,
that:
(a) without the written consent of each Lender affected
thereby, neither this Credit Agreement nor any other Credit Document
may be amended, changed, waived, discharged or terminated so as to
(i) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(ii) reduce the rate or extend the time of payment of
interest on any Loan or of any reimbursement obligation, or
any portion thereof, arising from drawings under Letters of
Credit or of any Fees,
(iii) reduce or waive the principal amount of any
Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit,
94
(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that
a waiver of any Default or Event of Default or mandatory
reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender),
(v) except as the result of or in connection with an
Asset Disposition not prohibited by Section 8.5, release all
or substantially all of the Collateral,
(vi) except as the result of or in connection with a
dissolution, merger or disposition of a Consolidated Party not
prohibited by Section 8.4 or Section 8.5, release the Borrower
or substantially all of the other Credit Parties from its or
their obligations under the Credit Documents,
(vii) amend, modify or waive any provision of this
Section 11.6,
(viii) reduce any percentage specified in, or
otherwise modify, the definition of Requisite Lenders, or
(ix) consent to the assignment or transfer by the
Borrower or all or substantially all of the other Credit
Parties of any of its or their rights and obligations under
(or in respect of) the Credit Documents except as permitted
thereby;
(b) without the written consent of the Agent, no provision of
Section 10 or any other provision of any Credit Agreement pertaining to
the duties and responsibilities of the Agent may be amended, changed,
waived, discharged or terminated;
(c) without the written consent of the Issuing Lender(s), no
provision of Section 2.2 may be amended, changed, waived, discharged or
terminated; or
(d) without the written consent of the Swingline Lender, no
provision of Section 2.3 may be amended, changed, waived, discharged or
terminated.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Requisite Lenders shall determine
whether or not to allow a Credit Party to use cash collateral in the context of
a bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or
95
account for more than one such counterpart for each of the parties hereto.
Delivery by facsimile by any of the parties hereto of an executed counterpart of
this Credit Agreement shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered.
11.8 HEADINGS.
The headings of the sections hereof are provided for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Credit Agreement.
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.2(i), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive until this Credit Agreement shall be terminated in
accordance with the terms of Section 11.13(b).
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the
courts of the State of New York, or of the United States for the
Southern District of New York, and, by execution and delivery of this
Credit Agreement, each of the Credit Parties hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of
the Credit Parties further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices
pursuant to Section 11.1, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of the
Agent or any Lender to serve process in any other manner permitted by
law or to commence legal proceedings or to otherwise proceed against
any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
96
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE
LENDERS (INCLUDING THE ISSUING LENDER AND THE SWINGLINE LENDER), EACH
OF THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time
on or after the Closing Date upon satisfaction of all of the conditions
in Section 5.1 and when it shall have been executed by each Credit
Party and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of each Credit Party, the
Agent and each Lender (including the Issuing Lender(s) and the
Swingline Lender) and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until the
Credit Party Obligations are Fully Satisfied.
(c) At such time as this Credit Agreement shall have become
effective pursuant to the terms of Section 11.13(a) and Section 5.1,
the promissory notes executed in connection with the Existing Credit
Agreement shall be replaced with the Notes, if any, executed in
connection with this Credit Agreement.
(d) The Agent and the Lenders acknowledge and agree (i) that
the Acquisition Loans and the Term Loans (as such terms are defined
under the Existing Credit Agreement) have been paid in full in cash and
terminated on the Closing Date and (ii) to return any note(s)
evidencing the Acquisition Loans or the Term Loans to the Borrower
promptly after the Closing Date for cancellation.
97
(e) The Agent and the Lenders consent to the repayment in full
in cash on the Closing Date of the Subordinated Note Agreement (as
defined under the Existing Credit Agreement).
11.14 CONFIDENTIALITY.
The Agent and each Lender (each, a "Lending Party") agrees to keep
confidential (and to use reasonable efforts to cause their respective officers,
directors, employees, agents and representatives to keep confidential) any
information, materials and documents furnished or made available to it by or on
behalf of the Credit Parties pursuant to this Credit Agreement; provided that
nothing herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any Affiliate of any Lending Party, or any
officer, director, employee, agent, or advisor of any Lending Party or Affiliate
of any Lending Party or to any other Person if reasonably incidental to the
administration of the Credit Facility, in each case, on a need to know basis in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions of this Section 11.14, (b) as
required by any law, rule, or regulation, (c) upon the order of any court or
administrative agency, (d) upon the request or demand of any regulatory agency
or authority, (e) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Credit Agreement, (f) in connection with
any litigation to which such Lending Party or any of its Affiliates may be a
party, (g) to the extent necessary in connection with the exercise of any remedy
under this Credit Agreement or any other Credit Document, (h) to the National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's investment portfolio in connection with ratings issued with respect to
such Lender, (i) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty (i) has been approved in writing by the Borrower and (ii) agrees in
a writing enforceable by the Borrower to be bound by the provisions of this
Section 11.14) and (j) subject to provisions substantially similar to those
contained in this Section 11.14, to any actual or proposed participant or
assignee; provided, however, that with respect to clauses (b), (c), (d), (f) and
(h), the Agent or such Lender shall, to the extent practicable, use reasonable
efforts to give notice to the Borrower of the release of such information.
11.15 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
98
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this clause (b), all employee benefit plans maintained by
the same employer or employee organization are deemed to be a single
plan);
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA such that the assets of such
general account do not constitute assets of an employee benefit plan;
or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 REGULATION D.
Each of the Lenders hereby represents and warrants to the Borrower that
it is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires or loans on
the ordinary course of business and that it will make or acquire Loans for its
own account in the ordinary course of business.
11.17 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
99
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: AMN HEALTHCARE, INC.
By:/s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
---------------------------------------
Title: Chief Financial Officer
--------------------------
PARENT: AMN HEALTHCARE SERVICES, INC.
(FORMERLY KNOWN AS AMN HOLDINGS, INC.)
By:/s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
---------------------------------------
Title: Chief Financial Officer
--------------------------
SUBSIDIARY WORLDVIEW HEALTHCARE, INC.
GUARANTORS: (FORMERLY KNOWN AS AMN SERVICES, INC.)
By:/s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
---------------------------------------
Title: Chief Financial Officer
------------------------------
O'XXXXX XXXXXX INTERNATIONAL (USA), INC.
By:/s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Senior Vice President
------------------------
[Signatures Continued]
LENDERS: BANK OF AMERICA, N. A.,
as a Lender and as Agent
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Title: Managing Director
------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Duly Authorized Signatory
----------------------------
UNION BANK OF CALIFORNIA, N.A.
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President/SCM
--------------------------------------
