CREDIT AGREEMENT
among
XXXXX, INC.
as Borrower,
DOMESTIC SUBSIDIARIES OF XXXXX, INC.
as Guarantors,
THE LENDERS IDENTIFIED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED,
as Documentation Agent,
CIBC INC.,
CREDIT AGRICOLE INDOSUEZ,
FIRST UNION NATIONAL BANK,
THE BANK OF NOVA SCOTIA, AND
BANK ONE, NA,
as Senior Managing Agents,
SUMMIT BANK, AND
THE BANK OF NEW YORK,
as Managing Agents,
and
BANQUE NATIONALE DE PARIS,
COMERICA,
SUNTRUST BANK, ATLANTA, AND
THE SUMITOMO BANK, LIMITED,
as Co-Agents
DATED AS OF OCTOBER 20, 1999
Arranged by:
BANC OF AMERICA SECURITIES LLC
and
CHASE SECURITIES INC.,
as Joint-Lead Arrangers and
Joint-Book Managers
TABLE OF CONTENTS
-----------------
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.....................................1
1.1 Definitions.........................................................1
1.2 Computation of Time Periods and Other Definitional Provisions......24
1.3 Accounting Terms...................................................25
1.4 Time...............................................................25
SECTION 2 CREDIT FACILITIES...................................................25
2.1 Revolving Loans....................................................25
2.2 Letter of Credit Subfacility.......................................27
2.3 Term Loans.........................................................33
2.4 Swing Line Loans Subfacility.......................................35
2.5 Continuations and Conversions......................................36
2.6 Minimum Amounts....................................................37
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.......37
3.1 Interest...........................................................37
3.2 Place and Manner of Payments.......................................37
3.3 Prepayments........................................................38
3.4 Fees...............................................................39
3.5 Payment in full at Maturity........................................40
3.6 Computations of Interest and Fees..................................40
3.7 Pro Rata Treatment.................................................41
3.8 Sharing of Payments................................................42
3.9 Capital Adequacy...................................................43
3.10 Inability To Determine Interest Rate...............................43
3.11 Illegality.........................................................43
3.12 Requirements of Law................................................44
3.13 Taxes..............................................................45
3.14 Indemnity..........................................................47
3.15 Replacement Lenders................................................48
SECTION 4 GUARANTY............................................................48
4.1 Guaranty of Payment................................................48
4.2 Obligations Unconditional..........................................49
4.3 Modifications......................................................49
4.4 Waiver of Rights...................................................50
4.5 Reinstatement......................................................50
4.6 Remedies...........................................................50
4.7 Limitation of Guaranty.............................................51
4.8 Rights of Contribution.............................................51
SECTION 5 CONDITIONS PRECEDENT................................................51
5.1 Closing Conditions.................................................51
5.2 Conditions to All Extensions of Credit.............................57
SECTION 6 REPRESENTATIONS AND WARRANTIES......................................58
6.1 Financial Condition................................................58
6.2 No Material Change.................................................58
6.3 Organization and Good Standing.....................................58
6.4 Due Authorization..................................................59
6.5 No Conflicts.......................................................59
6.6 Consents...........................................................59
6.7 Enforceable Obligations............................................59
6.8 No Default.........................................................60
6.9 Ownership..........................................................60
6.10 Indebtedness.......................................................60
6.11 Litigation.........................................................60
6.12 Taxes..............................................................60
6.13 Compliance with Law................................................60
6.14 ERISA..............................................................61
6.15 Subsidiaries.......................................................62
6.16 Use of Proceeds....................................................62
6.17 Government Regulation..............................................62
6.18 Environmental Matters..............................................63
6.19 Intellectual Property..............................................64
6.20 Solvency...........................................................64
6.21 Investments........................................................65
6.22 Disclosure.........................................................65
6.23 Licenses, etc......................................................65
6.24 No Burdensome Restrictions.........................................65
6.25 Broker's Fees......................................................65
6.26 Labor Matters......................................................65
6.27 Location of Collateral.............................................66
6.28 Year 2000 Compliance...............................................66
6.29 Collateral Documents...............................................66
6.30 Insurance..........................................................66
6.31 Representations and Warranties from Merger Agreement...............66
SECTION 7 AFFIRMATIVE COVENANTS...............................................67
7.1 Information Covenants..............................................67
7.2 Preservation of Existence and Franchises...........................70
7.3 Books and Records..................................................70
7.4 Compliance with Law................................................71
7.5 Payment of Taxes and Other Indebtedness............................71
7.6 Insurance..........................................................71
7.7 Maintenance of Property............................................72
7.8 Performance of Obligations.........................................72
7.9 Use of Proceeds....................................................73
7.10 Audits/Inspections.................................................73
7.11 Financial Covenants................................................73
7.12 Collateral.........................................................74
7.13 Additional Credit Parties..........................................74
7.14 Year 2000 Compliance...............................................75
7.15 Third Party Consents...............................................75
7.16 Interest Rate Protection Agreements................................75
ii
SECTION 8 NEGATIVE COVENANTS..................................................76
8.1 Indebtedness.......................................................76
8.2 Liens..............................................................77
8.3 Nature of Business.................................................78
8.4 Consolidation and Merger...........................................78
8.5 Sale or Lease of Assets............................................78
8.6 Advances, Investments and Loans....................................79
8.7 Restricted Payments................................................79
8.8 Transactions with Affiliates.......................................80
8.9 Fiscal Year; Organizational Documents..............................80
8.10 Subordinated Debt..................................................81
8.11 Limitations........................................................81
8.12 Sale Leasebacks....................................................82
8.13 Negative Pledges...................................................82
SECTION 9 EVENTS OF DEFAULT...................................................82
9.1 Events of Default..................................................82
9.2 Acceleration; Remedies.............................................85
9.3 Allocation of Payments After Event of Default......................86
SECTION 10 AGENCY PROVISIONS..................................................87
10.1 Appointment; Authorization.........................................87
10.2 Delegation of Duties...............................................88
10.3 Exculpatory Provisions.............................................88
10.4 Reliance on Communications.........................................89
10.5 Notice of Default..................................................89
10.6 Non-Reliance on Agents and Other Lenders...........................90
10.7 Indemnification....................................................90
10.8 Agents in Their Individual Capacity................................91
10.9 Successor Agent....................................................91
SECTION 11 MISCELLANEOUS......................................................92
11.1 Notices............................................................92
11.2 Right of Set-Off...................................................92
11.3 Benefit of Agreement...............................................92
11.4 No Waiver; Remedies Cumulative.....................................94
11.5 Payment of Expenses; Indemnification...............................95
11.6 Amendments, Waivers and Consents...................................96
11.7 Counterparts/Telecopy..............................................97
11.8 Headings...........................................................97
11.9 Defaulting Lender..................................................97
11.10 Survival of Indemnification and Representations and Warranties.....98
11.11 Governing Law; Venue...............................................98
11.12 Waiver of Jury Trial...............................................98
11.13 Severability.......................................................98
11.14 Entirety...........................................................99
11.15 Binding Effect.....................................................99
11.16 Confidentiality....................................................99
11.17 Release of Collateral.............................................100
iii
SCHEDULES
---------
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Management Group
Schedule 5.1(f)(i) Mortgaged Properties
Schedule 6.10 Indebtedness
Schedule 6.15 Subsidiaries
Schedule 6.19 Intellectual Property
Schedule 6.26 Labor Matters
Schedule 6.27(a) Real Property Locations
Schedule 6.27(b) Personal Property Locations
Schedule 6.27(c) Chief Executive Office
Schedule 6.30 Insurance
Schedule 8.2 Liens
Schedule 8.6 Investments
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1 Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(d) Form of Term Note
Exhibit 2.4(b) Form of Swing Line Loan Request
Exhibit 2.4(d) Form of Swing Line Loan Note
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.13 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
iv
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement"), is entered into as of
October 20, 1999 among Xxxxx, Inc., a Delaware corporation ("Borrower"), each of
the Domestic Subsidiaries of the Borrower (individually a "Guarantor" and
collectively the "Guarantors"), the Lenders (as defined herein), BANK OF
AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), THE CHASE MANHATTAN BANK, as Syndication Agent for the
Lenders (in such capacity, the "Syndication Agent") and XXXXXXX XXXXX CAPITAL
CORPORATION, as Documentation Agent for the Lenders (in such capacity, the
"Documentation Agent").
RECITALS
WHEREAS, the Borrower and the Guarantors have requested that the Lenders
provide a $650 million credit facility for the purposes hereinafter set forth;
WHEREAS, the credit facility provided pursuant to this Credit Agreement
will constitute the Credit Facilities under the Indenture (as hereinafter
defined); and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition" means the acquisition by any Person of (a) a majority of
the Voting Stock of another Person (b) all or substantially all of the
assets of another Person or (c) all or substantially all of a line of
business of another Person, in each case whether or not involving a merger
or consolidation with such other Person.
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date, as provided in Section 7.13.
"Additional Subordinated Debt" has the meaning set forth in Section
8.1(j).
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" shall have the meaning assigned to such term in
the heading hereof or any successor administrative agent appointed pursuant
to Section 10.9.
"Administrative Agent Fee Letter" means that certain letter agreement
dated as of August 11, 1999 among the Administrative Agent, BAS and
Warburg, as it may be amended, modified, supplemented or replaced from time
to time.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (ii) to direct
or cause direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract or
otherwise.
"Agency Services Address" means Bank of America, N.A., NC1-001-15-04,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency
Services, or such other address as may be identified by written notice from
the Administrative Agent to the Borrower.
"Agents" mean the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Collateral Agent and any successors and assigns in
such capacity.
"Agents Fee Letter" means that certain letter agreement dated as of
August 11, 1999 among the Agents, BAS, Chase Securities and Warburg, as it
may be amended, modified, supplemented or replaced from time to time.
2
"Applicable Percentage" means for Revolving Loans, Term Loans, the
Letter of Credit Fee and Commitment Fees, the appropriate applicable
percentages corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date as shown below:
=====================================================================================================
Applicable
Applicable Applicable Percentage Applicable
Percentage Percentage For Percentage
For For Letter of For
Pricing Leverage Eurodollar Base Rate Credit Commitment
Level Ratio Loans Loans Fee Fees
------------------------------------------------------------------------------------------------------
is greater than 1.625% .625% 1.625% .50%
I 3.5 to 1.0
------------------------------------------------------------------------------------------------------
II is less than 1.375% .375% 1.375% .375%
or equal to
3.5 to 1.0 but
greater than
3.0 to 1.0
------------------------------------------------------------------------------------------------------
III is less than 1.125% .125% 1.125% .30%
or equal to
3.0 to 1.0 but
greater than
2.5 to 1.0
------------------------------------------------------------------------------------------------------
IV is less than .875% 0% .875% .25%
or equal to
2.5 to 1.0 but
greater than
2.0 to 1.0
------------------------------------------------------------------------------------------------------
V is less than .625% 0% .625% .175%
or equal to
2.0 to 1.0
=====================================================================================================
The Applicable Percentage for Revolving Loans, Term Loans, the Letter
of Credit Fees and the Commitment Fees shall, in each case, be determined
and adjusted quarterly on the date (each a "Calculation Date") five
Business Days after the date by which the Borrower is required to provide
the officer's certificate in accordance with the provisions of Section
7.1(c); provided that the Applicable Percentage for Revolving Loans, Term
Loans, the Letter of Credit Fees and the Commitment Fees shall be based on
Pricing Level II (as shown above) and shall remain at Pricing Level II
until the first Calculation Date subsequent to December 31, 1999 and
thereafter, the Applicable Percentage shall be determined by the then
current Leverage Ratio; and provided further that if the Borrower fails to
provide the officer's certificate required by Section 7.1(c) on or before
the most recent Calculation Date, the Applicable Percentage for Revolving
Loans, Term Loans, the Letter of Credit Fees and the Commitment Fees from
such Calculation Date shall be based on Pricing Level I until such time
that an appropriate officer's certificate is provided whereupon the
Applicable Percentage shall be determined by the then current Leverage
Ratio. Each Applicable Percentage shall be effective from one Calculation
Date until the next Calculation Date except as set forth in the prior
sentence. Any adjustment in the Applicable Percentage shall be applicable
to all existing Revolving Loans, Term Loans and Letters of Credit as well
as any new Revolving Loans made or Letters of Credit issued.
At the time the officer's certificate is required to be delivered
pursuant to Section 7.1(c), the Borrower shall promptly deliver to the
Administrative Agent, at the address set forth on Schedule 11.1 and at the
Agency Services Address, information regarding any change in the Leverage
Ratio that would change the then existing Pricing Level.
"Asset Disposition" means the disposition of any or all of the assets
(or the sale of the stock of a Subsidiary) of a Credit Party or any of its
Subsidiaries whether by sale, lease, transfer or otherwise unless permitted
by Section 8.5.
3
"BAS" means Banc of America Securities LLC.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate
or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Borrower" means Xxxxx, Inc., a Delaware corporation, together with
any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in Charlotte, North Carolina
or New York, New York; provided that in the case of Eurodollar Loans, such
day is also a day on which dealings between banks are carried on in U.S.
dollar deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the definition of
Applicable Percentage.
"Canadian Subsidiary" means any direct and indirect Subsidiary of a
Credit Party that is incorporated or organized under the laws of Canada.
"Capital Expenditures" means all expenditures of the Credit Parties
and their Subsidiaries which, in accordance with GAAP, would be classified
as capital expenditures, including, without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
4
"Capital Stock" means (a) in the case of a corporation, all classes of
capital stock of such corporation, (b) in the case of a partnership,
partnership interests (whether general or limited), (c) in the case of a
limited liability company, membership interests and (d) 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 (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated (or with respect to Foreign Subsidiaries, U.S. dollar
denominated and non U.S. dollar denominated) time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic (or with respect to Foreign
Subsidiaries, any domestic or non-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 with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which a Credit Party 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 of Control" means any of the following events:
(a) prior to a Qualifying IPO, the Permitted Holders shall fail to own
beneficially, directly or indirectly, at least 51% of the outstanding
Voting Stock of the Borrower, after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of the
Borrower, convertible into or exercisable for Voting Stock of the Borrower
(whether or not such securities are then currently convertible or
exercisable); or
(b) after a Qualifying IPO, (i) any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) (other than one or
more of the Permitted Holders) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules
5
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such Person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), by way of merger, consolidation or
otherwise, of 35% or more of the voting power of the Voting Stock of the
Borrower on a fully-diluted basis, after giving effect to the conversion
and exercise of all outstanding warrants, options and other securities of
the Borrower convertible into or exercisable for Voting Stock of the
Borrower (whether or not such securities are then currently convertible or
exercisable), and (ii) such Person or group is or becomes, directly or
indirectly, the beneficial owner of a greater percentage of the voting
power of the Voting Stock of the Borrower calculated on such fully-diluted
basis, than the percentage beneficially owned by the Permitted Holders; or
(c) during any period of two consecutive calendar years, individuals
who at the beginning of such period constituted the board of directors of
the Borrower together with any new members of such board of directors (i)
whose elections by such board or board of directors or whose nomination for
election by the stockholders of the Borrower was approved by a vote of a
majority of the members of such board of 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 or (ii) elected by the
Permitted Holders, cease for any reason to constitute a majority of the
directors of the Borrower then in office; or
(d) a "change of control" (as defined in the Indenture) occurs.
"Chase Securities" means Chase Securities Inc.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, modified,
succeeded or replaced from time to time.
"Collateral" means a collective reference to the collateral which is
identified in, and at any time will be covered by, the Collateral
Documents.
"Collateral Agent" means Bank of America, N.A. or any successor
collateral agent appointed pursuant to Section 10.9.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, the Mortgage Documents (and any amendments
thereto) and such other documents executed and delivered in connection with
the attachment and perfection of the Administrative Agent's security
interests and liens arising thereunder, including without limitation, the
Mortgage Policies, UCC financing statements and patent and trademark
filings.
"Commitment Fees" means the fees payable to the Lenders pursuant to
Section 3.4(a).
6
"Commitments" means the commitment of each Lender with respect to the
Revolving Committed Amount and the Term Loan Committed Amount, and the
commitment of the Swing Line Lender with respect to the Swing Line
Committed Amount.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the Fee
Letters, 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 Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Credit Party Obligations" means, without duplication, (a) all
obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Agents, whenever arising, under this Credit Agreement, the
Notes, the Collateral Documents or any of the other Credit Documents to
which the Borrower or any other Credit Party is a party and (b) if and to
the extent agreed to by a Credit Party in the documentation evidencing
same, all liabilities and obligations, wherever arising, owing from any
Credit Party to any Lender, or any Affiliate of a Lender, arising under any
Hedging Agreement.
"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, within one
Business Day of when due (a) has failed to make a Loan or purchase a
Participation Interest required pursuant to the term of this Credit
Agreement, (b) other than as set forth in (a) above, has failed to pay to
an Agent or any Lender an amount owed by such Lender pursuant to the terms
of this Credit Agreement 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 to a receiver, trustee or similar
official.
"Documentation Agent" shall have the meaning assigned to such term in
the heading hereof or any successor documentation agent appointed pursuant
to Section 10.9.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Subsidiaries" means all direct and indirect Subsidiaries of
a Credit Party that are domiciled, incorporated or organized under the laws
of any state of the United States or the District of Columbia (or has any
material assets located in the United States).
7
"EBITDA" means, for any period, with respect to the Credit Parties and
their Subsidiaries on a consolidated basis, the sum of (a) Net Income for
such period (excluding the effect of any extraordinary or other
non-recurring gains or losses outside of the ordinary course of business)
plus (b) an amount which, in the determination of Net Income for such
period has been deducted for (i) cash Interest Expense for such period,
(ii) total Federal, state, foreign or other income taxes for such period
and (iii) all Non-Cash Charges for such period, all as determined in
accordance with GAAP.
"Eligible Assets" means any assets or any business (or any substantial
part thereof) used or useful in the same or a similar line of business as
the Credit Parties and their Subsidiaries were engaged in on the Closing
Date.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender
or any fund that invests in bank loans and is managed by an investment
advisor to a Lender; and (c) any institutional "accredited investor" (as
defined in Regulation D of the Securities Act) approved by the
Administrative Agent, the Issuing Lender and the Borrower, such approval
not to be unreasonably withheld or delayed; provided that (i) the approval
of the Borrower is not required if a Default or an Event of Default has
occurred and is continuing at the time an assignment is effected in
accordance with Section 11.3 and (ii) the approval of the Issuing Lender is
not required for any assignment of any portion of the Term Loan Committed
Amount; provided further, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature from
activities or events taking place during or prior to a Credit Party's or
any of its Subsidiaries' ownership or operation of any Real Property and
arising (a) pursuant to, or in connection with, an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any assessment, abatement, removal, remedial,
corrective, or other response action required by an Environmental Law or
other order of a Governmental Authority or (d) from any actual or alleged
damage, injury, threat, or harm to health, safety, natural resources, or
the environment.
"Environmental Laws" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of health,
safety, and the environment, (b) the conservation, management, or use of
natural resources and wildlife, (c) the protection or use of surface water
and groundwater or (d) the management, manufacture, possession, presence,
use, generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of, or
exposure to, any hazardous or toxic substance or material and includes,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendment of
8
1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966,
as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15
USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801
et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651
et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning
and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water
Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing
or successor law, and any amendment, rule, regulation, order, or directive
issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to any Person
of (a) shares of its Capital Stock or other equity interests, (b) any
shares of its Capital Stock or other equity interests pursuant to the
exercise of options (other than Capital Stock issued to employees and
directors pursuant to employees or directors stock option plans and Capital
Stock issued to consultants) or warrants or (c) any shares of its Capital
Stock or other equity interests pursuant to the conversion of any debt
securities to equity. The amount of any Equity Issuance shall be the net
cash proceeds derived therefrom, including, in the case of any conversion
of any debt securities into equity the principal amount of such debt.
"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 form time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
is under common control with a Credit Party or any of its Subsidiaries
within the meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes a Credit Party or any of its Subsidiaries and which is
treated as a single employer under Sections 414(b), (c), (m), or (o) of the
Code.
"Eurodollar Loan" means a Loan bearing interest based at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to
the following formula:
Eurodollar Rate = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special,
9
or marginal reserves) applicable with respect to Eurocurrency liabilities
as that term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest rate
of Eurodollar Loans is determined), whether or not a Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Letters of Credit" means the letters of credit described by
date of issuance, letter of credit number, undrawn amount, name of
beneficiary and the date of expiry on Schedule 1.1(b).
"Extension of Credit" means, as to any Lender, the making of a Loan by
such Lender (or a participation therein by a Lender) or the issuance of, or
participation in, a Letter of Credit by such Lender.
"Federal Funds Rate" means for any day the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b) if no such
rate is so published on such next preceding Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as determined by the Administrative
Agent.
"Fee Letters" means (a) the Agents Fee Letter and (b) the
Administrative Agent Fee Letter.
"Foreign Subsidiaries" means all Subsidiaries of a Credit Party that
are not Domestic Subsidiaries.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness (other than Hedging Agreements) of the Credit Parties and
their Subsidiaries for borrowed money (it being understood that with
respect to Indebtedness incurred with an original issue discount, the
obligations shall consist of the then accreted value), (b) all purchase
money Indebtedness of the Credit Parties and their Subsidiaries, (c) the
principal portion of all obligations of the Credit Parties and their
Subsidiaries under Capital Leases, (d)
10
commercial letters of credit and the maximum amount of all performance and
standby letters of credit issued or bankers' acceptance facilities created
for the account of a Credit Party or one of its Subsidiaries, including,
without duplication, all unreimbursed draws thereunder, (e) all Guaranty
Obligations of the Credit Parties and their Subsidiaries with respect to
Funded Debt of another person, (f) all Funded Debt of another entity
secured by a Lien on any property of a Credit Party or any of its
Subsidiaries whether or not such Funded Debt has been assumed by a Credit
Party or any of its Subsidiaries, (g) all Funded Debt of any partnership or
unincorporated joint venture to the extent a Credit Party or one of its
Subsidiaries is legally obligated or has a reasonable expectation of being
liable with respect thereto, net of any assets of such partnership or joint
venture and (h) the principal balance outstanding under 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 in accordance with GAAP; provided, however, for purposes of
calculating the Leverage Ratio in connection with determining the
Applicable Percentage and compliance with the financial covenants set forth
in Section 7.11, Additional Subordinated Debt shall not be included in the
computation of Funded Debt. Notwithstanding the foregoing, Funded Debt
shall include Additional Subordinated Debt for purposes of calculating the
Leverage Ratio to determine whether a Release of Collateral Event has
occurred.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local, provincial
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means each of the Domestic Subsidiaries, each Additional
Credit Party which has executed a Joinder Agreement, or any other Person
who becomes a Guarantor, together with their successors and assigns.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (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, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of such indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of such other
Person, (c) to lease or purchase property, securities or services primarily
for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein)
be deemed to be
11
an amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Hazardous Materials" means any substance, material or waste defined
or regulated in or under any Environmental Laws.
"Hedging Agreements" means any interest rate protection agreement,
foreign exchange contract, currency swap agreement, commodity purchase or
option agreement or other interest or exchange rate or commodity price
hedging agreement or other similar agreement, designed to protect a Credit
Party or any of its Subsidiaries against fluctuations in currency.
"Indebtedness" of any Person means, 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, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to the
extent of the value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations, other than intercompany
items, of such Person issued or assumed as the deferred purchase price of
property or services purchased by such Person which would appear as
liabilities on a balance sheet of such Person, (e) 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, (f) all Guaranty Obligations of such Person, (g) the principal
portion of all obligations of such Person under (i) Capital Leases and (ii)
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 in accordance with GAAP (collectively, "Synthetic
Leases"), (h) all obligations of such Person in respect of Hedging
Agreements, (i) 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), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date and (k) 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. The Indebtedness of any Person shall include the Indebtedness of
any partnership or unincorporated joint venture in which such Person is
legally obligated or has a reasonable expectation of being liable with
respect thereto. Indebtedness of the Credit Parties and their Subsidiaries
shall not include (i) "teaming agreements" pursuant to which a Credit Party
or any of its Subsidiaries shall agree with another supplier of services to
provide services (including the sale of inventory) to a third person and
pursuant to such agreement shall be responsible to the third Person for the
performance of the obligations
12
of such other supplier, (ii) warranty claims, (iii) product guarantees,
(iv) guarantees (including performance guarantees or bonds) by a Person of
obligations not constituting Indebtedness of a Credit Party or any of its
Subsidiaries and (v) obligations under joint development agreements
pursuant to which a Credit Party or any of its Subsidiaries agree to
develop a product.
"Indenture" means that certain Indenture dated as of February 29, 1996
among Xxxxx, Inc. (f/k/a T.K.G. Acquisition Sub, Inc.) as issuer, the
guarantors named therein and IBJ Xxxxxxxx Bank & Trust Company, as trustee,
as amended, modified or supplemented from time to time.
"Initial Funding Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders), provided that such date must be on or before
November 30, 1999.
"Insignificant Subsidiary" means any Subsidiary of a Credit Party that
(a) has assets of less than $2,500,000 and (b) for the most recent fiscal
year of the Borrower, accounted for less than 3% of the consolidated
revenues of the Credit Parties and their Subsidiaries.
"Interest Coverage Ratio" means, as of the end of each fiscal quarter
of the Credit Parties, for the twelve month period ending on such date,
with respect to the Credit Parties and its Subsidiaries on a consolidated
basis, the ratio of (a) EBITDA for the applicable period to (b) the sum of
(i) cash Interest Expense for the applicable period plus (ii) amounts used
to pay dividends or repurchase or redeem Capital Stock during the
applicable period, as permitted by Section 8.7.
"Interest Expense" means, for any period, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, all net interest
expense, including the interest component under Capital Leases, as
determined in accordance with GAAP; it being understood that (a) Interest
Expense shall include the amortized cost of any Hedging Agreement, to the
extent permitted by GAAP and (b) for purposes of calculating the Leverage
Ratio in connection with determining the Applicable Percentage and
compliance with the financial covenants set forth in Section 7.11, interest
expense associated with Additional Subordinated Debt shall not be included
in the computation of Interest Expense.
"Interest Payment Date" means (a) as to Base Rate Loans, the last day
of each fiscal quarter of the Borrower and the Maturity Date, and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period 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
13
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, (c)
with regard to the Term Loans, no Interest Period shall extend beyond any
Principal Amortization Payment Date unless the portion of Term Loans
comprised of Base Rate Loans together with the portion of Term Loans
comprised of Eurodollar Loans with Interest Periods expiring prior to the
date such Principal Amortization Payment is due, is at least equal to the
amount of such Principal Amortization Payment due on such date and (d) in
the case of Eurodollar Loans, where an Interest Period begins on a day for
which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the
last Business Day of such calendar month. Notwithstanding the above, for
the first 90 days subsequent to the Closing Date, the Borrower may not,
without the consent of the Administrative Agent, request any Interest
Period other than a one month Interest Period for any Eurodollar Loans.
"Investment" means (a) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of assets,
shares of Capital Stock, bonds, notes, debentures, partnership, joint
ventures or other ownership interests or other securities of any 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 or other assets in the ordinary course of business) or (c) any
other capital contribution to or investment in such Person, including,
without limitation, any Guaranty Obligation (including any support for a
Letter of Credit issued on behalf of such Person) incurred for the benefit
of such Person.
"Issuing Lender" means Bank of America, N.A.
"Issuing Lender Fees" has the meaning set forth in Section 3.4(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.13.
"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.
"Letter of Credit" means (a) a Letter of Credit issued for the account
of a Credit Party by the Issuing Lender pursuant to Section 2.2, as such
Letter of Credit may be amended, modified, extended, renewed or replaced
and (b) any Existing Letter of Credit.
"Letter of Credit Fee" shall have the meaning assigned to such term in
Section 3.4(b)(i).
14
"Leverage Ratio" means, as of the end of each fiscal quarter of the
Borrower, with respect to the Credit Parties and their Subsidiaries on a
consolidated basis, the ratio of (a) the sum of Funded Debt on such date to
(b) EBITDA for the twelve month period ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans, the Swing Line Loans and
the Term Loans (or a portion of any Revolving Loans, Swing Line Loans or
the Term Loans), individually or collectively, as appropriate.
"LOC Committed Amount" has the meaning set forth in Section 2.2(a).
"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 (a)
the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) 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
(b) the aggregate amount of all drawings under Letters of Credit honored by
an Issuing Lender but not theretofore reimbursed.
"LOC Participants" means the Lenders which have a Revolving Loan
Commitment Percentage greater than zero.
"London Interbank Offered Rate" means, with respect to any Eurodollar
Loan for the Interest Period applicable thereto, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Telerate Page 3750, the applicable rate shall be
the arithmetic mean of all such rates. If, for any reason, such rate is not
available, the term "London Interbank Offered Rate" shall mean, with
respect to any Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest 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
15
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.
"Management" means any current or former officer, director or employee
of any Credit Party or its direct or indirect Subsidiaries; provided that
with respect to former officers, directors or employees, any stock or
option in question must have been earned or received while such Person was
an officer, director or employee.
"Management Group" means the Persons identified on Schedule 1.1(c).
"Mandatory Borrowing" has the meaning set forth in Section 2.2(e).
"Material Adverse Effect" means a material adverse effect on (a) after
taking into account any applicable insurance and any applicable
indemnification (to the extent the provider of such insurance or
indemnification has the financial ability to support its obligations with
respect thereto and is not disputing or refusing to acknowledge same), the
operations, financial condition or business of the Credit Parties and their
Subsidiaries taken as a whole, (b) the ability of a Credit Party to perform
its obligations in all material respects under this Credit Agreement or any
of the other Credit Documents, or (c) the validity or enforceability of
this Credit Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole.
"Maturity Date" means the sixth anniversary of the Initial Funding
Date.
"Merger" means the merger of Acquisition (as defined in the Merger
Agreement) with and into the Borrower pursuant to the terms of the Merger
Agreement.
"Merger Agreement" means the Amended and Restated Agreement and Plan
of Merger dated as of July 29, 1999 by and between Warburg and the
Borrower.
"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.
"Mortgages" has the meaning set forth in Section 5(f)(i).
"Mortgage Documents" means the collective reference to the Mortgages.
"Mortgage Policies" has the meaning set forth in Section 5.1(f)(v).
"Mortgaged Properties" has the meaning set forth in Section 5.1(f)(i).
"Multiemployer Plan" means a Plan covered by Title IV of ERISA which
is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA,
other than a Multiemployer Plan, which a Credit Party or any of its
Subsidiaries or any ERISA
16
Affiliate and at least one employer other than a Credit Party or any of its
Subsidiaries or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the gross cash proceeds (including cash
actually received (but only when received) by way of deferred payment
pursuant to a promissory note, receivable, or otherwise) received from an
Asset Disposition, net of (a) actual transaction costs paid or payable to
third parties, (b) a good faith estimate of the taxes payable with respect
to such proceeds, including, without duplication, withholding taxes and any
taxes payable to a third party in connection with distribution of such
proceeds from a Subsidiary of a Credit Party to such Credit Party, (c) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with the terms of the applicable agreements
governing such Asset Disposition as long as such reserve amounts are placed
in escrow with a third party and (d) any payments to be made by a Credit
Party or any of its Subsidiaries, as agreed to between such Credit Party or
such Subsidiary and the purchaser of such asset or assets, in connection
with such sale or disposition.
"Net Income" means, for any period, the net income after taxes for
such period of the Credit Parties and their Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Non-Cash Charges" means, for any period, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, all depreciation,
amortization and other non-cash charges (excluding any non-cash charges
that require an accrual or reserve for cash charges for any future period,
other than accruals for future retiree medical obligations made pursuant to
SFAS Xx. 00, Xx. 000 and No. 106, as amended or modified).
"Non-Excluded Taxes" has the meaning set forth in Section 3.13.
"Note" or "Notes" means the Revolving Notes, the Term Notes and the
Swing Line Notes, individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a Revolving
Loan, in the form of Exhibit 2.1.
"Notice of Continuation/Conversion" means a request by the Borrower to
continue an existing Eurodollar Loan to a new Interest Period or to convert
a Eurodollar Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar
Loan, in the form of Exhibit 2.5.
"Participation Interest" means the Extension of Credit by a Lender by
way of a purchase of a participation in Letters of Credit or LOC
Obligations as provided in Section 2.2, in Swing Line Loans as provided in
Section 2.4(c) or in any Loans as provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
17
"Permitted Acquisition" means an Acquisition by a Credit Party or any
Subsidiary of a Credit Party for consideration no greater than the fair
market value (as conclusively determined in good faith by the Board of
Directors of the Borrower) of the Capital Stock or property acquired;
provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition constitutes Eligible Assets (or goodwill
associated therewith), (b) the Administrative 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, (c) 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, (d) the
Borrower shall have delivered to the Administrative Agent, prior to the
closing of such Acquisition, a certificate of its chief financial officer
demonstrating that, upon giving effect to such Acquisition on a Pro Forma
basis, the Credit Parties are in compliance with all of the covenants set
forth in Section 7.11, (e) 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 and (f) at the time of such
Acquisition and after giving effect thereto, no Default or Event of Default
shall exist or be continuing.
"Permitted Holders" means the collective reference to Warburg and the
Management Group.
"Permitted Investments" means Investments which are (a) cash or Cash
Equivalents, (b) accounts receivable created, acquired or made in the
ordinary course of business of a Credit Party and payable or dischargeable
in accordance with customary trade terms or otherwise in the prudent
judgment of a Credit Party, (c) inventory, raw materials and general
intangibles (to the extent such general intangibles are not a Capital
Expenditure) acquired in the ordinary course of business, (d) Investments
by one Credit Party in another Credit Party, or by a Foreign Subsidiary
(other than a Canadian Subsidiary) in another Foreign Subsidiary (other
than a Canadian Subsidiary) or by a Canadian Subsidiary in another Canadian
Subsidiary, (e) loans to directors, officers, employees, agents, customers
or suppliers in the ordinary course of business for reasonable business
expenses or in connection with relocation, not to exceed, in the aggregate,
$10,000,000 at any one time, (f) the Investments set forth on Schedule 8.6,
(g) Investments by the Credit Parties in Foreign Subsidiaries and joint
venture operations in an aggregate amount not to exceed $125,000,000 during
the term of this Credit Agreement, (h) Investments by Foreign Subsidiaries
in joint venture operations, (i) Investments in Permitted Acquisitions, (j)
Investments in Capital Expenditures, (k) Investments made as a result of
the receipt of non-cash consideration from an Asset Disposition permitted
by this Credit Agreement, (l) Investments in customers in the ordinary
course of business not to exceed $5,000,000 in the aggregate at any one
time outstanding, (m) Investments in dealers in the ordinary course of
business not to exceed $25,000,000 in the aggregate at any one time
outstanding, (n) Investments in dealers and customers received in
connection with any bankruptcy or reorganization of such dealer or customer
as a result of an Investment previously made in such dealer or customer in
18
accordance with the provisions of clauses (l) and (m), (o) Investments
comprised of progress payments to suppliers and (p) Investments not
otherwise permitted by the other clauses of this definition not to exceed
$5,000,000, in the aggregate, at any one time outstanding.
"Permitted Liens" means (a) Liens securing Credit Party Obligations,
(b) Liens for taxes 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), (c) Liens in respect of property imposed by law arising
in the ordinary course of business such as materialmen's, mechanics',
warehousemen's, carrier's, landlords' and other nonconsensual statutory
Liens which are not yet due and payable, which have been in existence less
than 90 days or which 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),
(d) pledges or deposits made in the ordinary course of business to secure
payment of worker's compensation insurance, unemployment insurance,
pensions or social security programs, (e) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids,
leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business
(other than obligations in respect of the payment of borrowed money), (f)
Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions),
minor defects or irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use of the
encumbered property for its intended purposes, (h) judgment Liens that
would not constitute an Event of Default, (i) Liens in connection with
Indebtedness allowed under Section 8.1(e), (j) Liens arising by virtue of
any statutory or common law provision relating to banker's liens, rights of
setoff or similar rights as to deposit accounts or other funds maintained
with a creditor depository institution, (k) Liens existing on the date
hereof and identified on Schedule 8.2; provided that no such Lien shall
extend to any property other than the property subject thereto on the
Closing Date, (l) Permitted Encumbrances (as defined in any Mortgage
Document) and (m) Liens in connection with Indebtedness allowed under
Section 8.1(f); provided that (A) such Lien shall have existed at the time
such Permitted Acquisition was consummated and (B) such Lien was not
incurred in anticipation thereof.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which a Credit Party
or any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were
terminated at such time,
19
would under Section 4069 of ERISA be deemed to be) an "employer" within the
meaning of Section 3(5) of ERISA.
"Pledge Agreement" means any Pledge Agreement executed and delivered
by a Credit Party in favor of the Collateral Agent, for the benefit of the
Lenders, 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 the Administrative Agent at its principal office in
Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting from
a change in the Prime Rate shall become effective as of 12:01 a.m. of the
Business Day on which each change in the Prime Rate is announced by the
Administrative Agent. The Prime Rate is a reference rate used by the
Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Principal Amortization Payment" means a principal payment on the Term
Loans as set forth in Section 2.3(c).
"Principal Amortization Payment Date" means the date a Principal
Amortization Payment is due.
"Prior Credit Agreement" means that certain Credit Agreement, dated as
of August 8, 1997, among the Borrower, the lenders party thereto,
NationsBank, N.A., as administrative agent and The Chase Manhattan Bank, as
documentation agent, as amended or modified from time to time.
"Pro Forma" means, with respect to a Permitted Acquisition or the
incurrence of Indebtedness permitted by Section 8.1(l), that such Permitted
Acquisition or Indebtedness shall be deemed to have occurred as of the
first day of the twelve month period ending as of the last day of the most
recent fiscal quarter for which the Lenders have received the financial
information required by Section 7.1(b).
"Qualifying IPO" means an underwritten primary public offering (other
than a public offering pursuant to a registration statement on Form S-8 (or
any successor form)) of the common Capital Stock of the Borrower (a)
pursuant to an effective registration statement filed with the United
States Securities and Exchange Commission in accordance with the Securities
Act (whether alone or in connection with a secondary public offering ) and
(b) resulting in proceeds of at least $100 million.
"Real Properties" shall have the meaning set forth in Section 6.18.
"Refinancing" has the meaning set forth in Section 7.9.
20
"Regulation D, O, T, U, or X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"Release of Collateral Event" means the occurrence of either of the
following: (a) the Borrower receives an investment grade rating on its
senior unsecured (non-credit enhanced) debt of at least (i) BBB- or higher
from S&P or an equivalent rating from S&P in the event S&P changes its
rating system or (ii) Baa3 or higher from Moody's or an equivalent rating
from Moody's in the event Moody's changes its rating system or (b) the
Credit Parties shall have maintained for two successive fiscal quarters (at
least one of which must be the fiscal quarter ending on December 31) a
Leverage Ratio, as of the end of each of such fiscal quarters, of less than
2.0 to 1.0.
"Reportable Event" means a "reportable event" as defined in Section
4043 of ERISA with respect to which the notice requirements to the PBGC
have not been waived.
"Required Lenders" means Lenders whose aggregate Credit Exposure (as
hereinafter defined) constitutes more than 50% of the Credit Exposure of
all Lenders at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean
(a) at any time prior to the termination of the Commitments, the sum of (i)
the Revolving Commitment Percentage of such Lender multiplied by the
Revolving Committed Amount plus (ii) the Term Loan Commitment Percentage of
such Lender multiplied by the aggregate principal amount of the Term Loans
outstanding at such time, and (b) at any time after the termination of the
Commitments, the sum of (i) the principal balance of the outstanding Loans
of such Lender plus (ii) such Lender's Participation Interests in the face
amount of the outstanding Letters of Credit and Swing Line Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable 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.
"Revolving Committed Amount" means THREE HUNDRED TWENTY-FIVE MILLION
DOLLARS ($325,000,000) or such lesser amount as the Revolving Committed
Amount may be reduced pursuant to Section 2.1(d) or Section 3.3(c).
"Revolving Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule
1.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
21
"Revolving Loans" means the Revolving Loans made to the Borrower
pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(e).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Security Agreement" means any Security Agreement executed and
delivered by a Credit Party in favor of the Collateral Agent, for the
benefit of the Lenders, 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.
"Solvent" means, with respect to any Person as of a particular date,
that on such date (a) 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, (b) 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, (c) 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 assets 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, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Debt" means the Indebtedness in an amount not to exceed
$107,250,000 issued pursuant to the Indenture.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to
22
elect a majority of the directors of such corporation (irrespective of
whether or not at the time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, limited liability company,
association, joint venture or other entity in which such person directly or
indirectly through Subsidiaries has more than a 50% equity interest at any
time.
"Swing Line Lender" means Bank of America, N.A.
"Swing Line Loans" means the loans made by the Swing Line Lender
pursuant to Section 2.4.
"Swing Line Committed Amount" means Ten Million Dollars ($10,000,000).
"Swing Line Loan Request" means a request by the Borrower for a Swing
Line Loan in substantially the form of Exhibit 2.4(b).
"Swing Line Loan Note" means the promissory note of the Borrower in
favor of the Swing Line Lender evidencing the Swing Line Loans provided
pursuant to Section 2.4, as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time in and as
evidenced by the form of Exhibit 2.4(d).
"Syndication Agent" shall have the meaning assigned to such term in
the heading hereof or any successor syndication agent appointed pursuant to
Section 10.9.
"Synthetic Leases" has the meaning set forth in the definition of
Indebtedness.
"Term Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Term Loan Commitment Percentage on Schedule
1.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Term Loan Committed Amount" means THREE HUNDRED TWENTY-FIVE MILLION
DOLLARS ($325,000,000).
"Term Loans" means the Term Loans made to the Borrower pursuant to
Section 2.3.
"Term Note" or "Term Notes" means the promissory notes of the Borrower
in favor of each of the Lenders evidencing the Term Loans provided pursuant
to Section 2.3, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time and as evidenced in the form of Exhibit
2.3(d).
"Termination Event" means (a) with respect to any Single Employer
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of a Credit Party or any of its
23
Subsidiaries 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; (c) 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; (d)
the institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan; or (f) the complete or partial withdrawal of a Credit Party or any of
its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"Total Assets" means all items which in accordance with GAAP would be
classified as assets of the Credit Parties and their Subsidiaries on a
consolidated basis.
"Unused Commitment" means, for any period, the amount by which (a) the
then applicable aggregate Revolving Committed Amount exceeds (b) the daily
average sum for such period of the outstanding aggregate principal amount
of all Revolving Loans plus the aggregate amount of LOC Obligations
outstanding.
"Voting Stock" of a corporation means all classes of the Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Warburg" means Warburg, Xxxxxx Ventures, L.P., a Delaware limited
partnership.
"Year 2000 Compliant" shall have the meaning assigned to such term in
Section 6.28.
"Year 2000 Problem" means any risk (a) that any computer hardware,
software or other equipment used by a Credit Party or any of its
Subsidiaries (or by any suppliers, vendors or customers that is material to
the business of such Credit Party or Subsidiary) will not function as
effectively and reliably on and after January 1, 2000 as it does prior to
January 1, 2000 or (b) that any computer applications used by a Credit
Party or any of its Subsidiaries may not be able to recognize and properly
perform date-sensitive functions after December 31, 1999, to the extent any
such risk specified in items (a) or (b) above would have or be reasonably
expected to have a Material Adverse Effect.
1.2 Computation of Time Periods and Other Definitional Provisions.
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." References in this Agreement to "Articles", "Sections", "Schedules"
or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits of or to
this Agreement unless otherwise specifically provided.
24
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrower that GAAP has not changed since the
most recent financial statements delivered by the Borrower to the Lenders or if
GAAP has changed describing such changes in detail and explaining how such
changes affect the financial statements. All calculations made for the purposes
of determining compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied on a basis
consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements described in Section 5.1(c)); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) either the Administrative Agent or the
Required Lenders shall so object in writing within 60 days after delivery of
such financial statements (or after the Lenders have been informed of the change
in GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Borrower to the Lenders as to which no such objection shall
have been made.
1.4 Time.
All references to time herein shall be references to Eastern Standard time
or Eastern Daylight time, as the case may be, unless specified otherwise.
SECTION 2
CREDIT FACILITIES
-----------------
2.1 Revolving Loans.
(a) Revolving Loan Commitment. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make revolving loans (each a
"Revolving Loan" and collectively the "Revolving Loans") to the Borrower,
in Dollars, at any time and from time to time, during the period from and
including the Initial Funding Date to but not including the Maturity Date
(or such earlier date if the Revolving Committed Amount has been terminated
as provided herein); provided, however, that (i) the sum of the aggregate
amount of Revolving Loans outstanding plus the aggregate amount of LOC
Obligations outstanding plus the aggregate amount of Swing Line Loans
outstanding shall not exceed the Revolving Committed Amount and (ii) with
respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata share of
outstanding LOC Obligations plus (other than the Swing Line Lender) such
Lender's pro rata share of Swing Line Loans outstanding shall not exceed
25
such Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount. Subject to the terms of this Credit Agreement (including
Section 3.3), the Borrower may borrow, repay and reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than 11:00
a.m. (i) on the date of the requested borrowing of Revolving Loans that
will be Base Rate Loans or (ii) three Business Days prior to the date of
the requested borrowing of Revolving Loans that will be Eurodollar Loans,
the Borrower shall telephone the Administrative Agent as well as submit a
written Notice of Borrowing in the form of Exhibit 2.1 to the
Administrative Agent setting forth (A) the amount requested, (B) whether
such Revolving Loans shall accrue interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate, (C) with respect to Revolving Loans that will be
Eurodollar Loans, the Interest Period applicable thereto and (D)
certification that the Borrower has complied in all respects with Section
5.2. If the Borrower shall fail to specify (x) an Interest Period in the
case of a Eurodollar Loan, then such Eurodollar Loan shall be deemed to
have an Interest Period of one month, or (y) the type of Revolving Loan
requested, then such Revolving Loan shall be deemed to be a Base Rate Loan.
All Revolving Loans on the Initial Funding Date shall be Base Rate Loans
unless the Borrower delivers to the Administrative Agent at least three
Business Days prior to the Initial Funding Date a funding indemnity letter
in form and substance reasonably satisfactory to the Administrative Agent.
Thereafter, all or any portion of the Revolving Loans may be converted into
Eurodollar Loans in accordance with the terms of Section 2.5 and the
definition of "Interest Period" set forth in Section 1.1.
(c) Funding of Revolving Loans. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly inform the applicable Lenders as to
the terms thereof. Each such Lender shall make its Revolving Loan
Commitment Percentage of the requested Revolving Loans available to the
Administrative Agent by 1:00 p.m. on the date specified in the Notice of
Borrowing by deposit, in Dollars, of immediately available funds at the
offices of the Administrative Agent at its principal office in Charlotte,
North Carolina or at such other address as the Administrative Agent may
designate in writing. The amount of the requested Revolving Loans will then
be made available to the Borrower by the Administrative Agent by crediting
the account of the Borrower on the books of such office of the
Administrative Agent, to the extent the amount of such Revolving Loans are
made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans 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 Administrative Agent shall have been notified by any Lender
prior to the date of any such Revolving Loan that such Lender does not
intend to make available to the Administrative Agent its portion of the
Revolving Loans to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a
26
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent. The Administrative 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 Administrative Agent to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrower at
the applicable rate for such Revolving Loan pursuant to the Notice of
Borrowing and (ii) from a Lender at the Federal Funds Rate if paid within
two Business Days of the date of drawing, and thereafter at a rate equal to
the Base Rate.
(d) Reductions of Revolving Committed Amount. Upon at least three
Business Days' notice, the Borrower shall have the right to permanently
terminate or reduce the aggregate unused amount of the Revolving Committed
Amount at any time or from time to time; provided that (i) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000 and
in integral multiples of $1,000,000 above such amount and (ii) no reduction
shall be made which would reduce the Revolving Committed Amount to an
amount less than the aggregate amount of outstanding Revolving Loans plus
the aggregate amount of outstanding LOC Obligations plus the aggregate
amount of outstanding Swing Line Loans. Any reduction in (or termination
of) the Revolving Committed Amount shall be permanent and may not be
reinstated.
(e) Revolving Loan Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower to
each applicable Lender in the face amount of its Revolving Loan 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 of the
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require (so long as such terms and conditions do not
impose any financial obligation on or require any Lien (not otherwise
contemplated by this Credit Agreement) to be given by any Credit Party or
conflict with any obligation of, or detract from any action which may be
taken by the Credit Parties or their Subsidiaries under this Credit
Agreement), the Issuing Lender shall from time to time upon request issue,
in Dollars, and the LOC Participants shall participate in, letters of
credit (the "Letters of Credit") for the account of a Credit Party or any
of its Subsidiaries, from the Initial Funding Date until the Maturity Date,
in a form reasonably acceptable to the Issuing Lender; provided, however,
that (i) the aggregate amount of LOC Obligations shall not at any time
exceed TWENTY FIVE MILLION DOLLARS ($25,000,000) (the "LOC Committed
Amount"), (ii) the sum of the aggregate amount of LOC Obligations
outstanding plus Revolving
27
Loans outstanding plus Swing Line Loans outstanding shall not exceed the
Revolving Committed Amount and (iii) with respect to each individual LOC
Participant, the LOC Participant's pro rata share of outstanding Revolving
Loans plus its pro rata share of outstanding LOC Obligations plus its
(other than the Swing Line Lender) pro rata share of outstanding Swing Line
Loans shall not exceed such LOC Participant's Revolving Loan Commitment
Percentage of the Revolving Committed Amount. The issuance and expiry date
of each Letter of Credit shall be a Business Day. Except as otherwise
expressly agreed upon by all the LOC Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance, or as extended, shall have an expiry date extending beyond the
Maturity Date. Each Letter of Credit shall be either (x) a standby letter
of credit issued to support the obligations (including pension or insurance
obligations), contingent or otherwise, of a Credit Party or any of its
Subsidiaries, or (y) a commercial letter of credit in respect of the
purchase of goods or services by a Credit Party or any of its Subsidiaries
in the ordinary course of business; it being understood that any Letter of
Credit issued on behalf of a Foreign Subsidiary must be permitted by the
terms of Section 8.6. Each Letter of Credit shall comply with the related
LOC Documents.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least three Business
Days prior to the requested date of issuance. The Issuing Lender will, at
least quarterly and more frequently upon request, provide to the
Administrative Agent for dissemination to the Lenders a detailed report
specifying the Letters of Credit which are then issued and outstanding and
any activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the account
party, the beneficiary, the face amount, and the expiry date as well as any
payments or expirations which may have occurred. The Issuing Lender will
further provide to the Administrative Agent, promptly upon request, copies
of the Letters of Credit.
(c) Participations.
(i) On the Initial Funding Date, each LOC Participant shall
automatically acquire a participation in the liability of the Issuing
Lender under each Existing Letter of Credit in an amount equal to its
Revolving Loan Commitment Percentage of such Existing Letters of
Credit. Each Existing Letter of Credit shall be deemed for all
purposes of this Credit Agreement and the other Credit Documents to be
a Letter of Credit.
(ii) Each LOC Participant, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk
participation from the 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 Revolving Loan Commitment
Percentage of the obligations under such Letter of Credit, and shall
absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and be obligated to pay to the Issuing Lender
therefor and discharge when due, its Revolving Loan Commitment
Percentage of the obligations arising
28
under such Letter of Credit. Without limiting the scope and nature of
each LOC Participant's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required
hereunder or under any such Letter of Credit, each such LOC
Participant shall pay to the Issuing Lender its Revolving Loan
Commitment Percentage of such unreimbursed drawing in same day funds
on the day of notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each LOC Participant to so reimburse the Issuing Lender
shall be absolute and unconditional and shall not be affected by the
occurrence of a Default, an Event of Default or any other occurrence
or event. Any such reimbursement shall not relieve or otherwise impair
the obligation of the Borrower or any other Credit Party to reimburse
the Issuing Lender under any Letter of Credit, together with interest
as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender of its intent to
otherwise reimburse the Issuing Lender, the Borrower shall be deemed to
have requested a Revolving Loan at the Adjusted Base Rate in the amount of
the drawing as provided in subsection (e) hereof, the proceeds of which
will be used to satisfy the reimbursement obligations. The Borrower shall
reimburse the Issuing Lender on the day of drawing under any Letter of
Credit either with the proceeds of a Revolving Loan obtained hereunder or
otherwise in same day funds as provided herein or in the LOC Documents. If
the Borrower shall fail to reimburse the Issuing Lender as provided
hereinabove, the unreimbursed amount of such drawing shall bear interest at
a per annum rate equal to the Base Rate plus the Applicable Percentage for
Base Rate Loans that are Revolving Loans plus two percent (2%). The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of (but without waiver
of) any rights of set-off, counterclaim or defense to payment that the
applicable account party or the Borrower may claim or have against the
Issuing Lender, the Agents, 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 applicable account party, the Borrower
or any other Credit Party to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the LOC Participants of the amount of
any unreimbursed drawing and each LOC Participant shall promptly pay to the
Administrative Agent for the account of the Issuing Lender, in Dollars and
in immediately available funds, the amount of such LOC Participant's
Revolving Loan Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender
from the Issuing Lender if such notice is received at or before 2:00 p.m.,
otherwise such payment shall be made at or before 12:00 Noon on the
Business Day next succeeding the day such notice is received. If such LOC
Participant does not pay such amount to the Issuing Lender in full upon
such request, such LOC Participant shall, on demand, pay to the
Administrative Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date the LOC Participant received
the notice regarding the unreimbursed drawing until such LOC Participant
pays such amount to the Issuing Lender in full at a
29
rate per annum equal to, if paid within two Business Days of the date of
drawing, the Federal Funds Rate and thereafter at a rate equal to the Base
Rate. Each LOC Participant's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit Agreement
or the Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a LOC Participant to
the Issuing Lender, such LOC Participant shall, automatically and without
any further action on the part of the Issuing Lender or such LOC
Participant, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents,
and shall have a claim against the Borrower and the other Credit Parties
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
borrowing to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the applicable Lenders that a
Revolving Loan has been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a Revolving Loan borrowing
comprised solely of Base Rate Loans (each such borrowing, a "Mandatory
Borrowing") shall be immediately made from all applicable Lenders (without
giving effect to any termination of the Commitments pursuant to Section 9.2
or otherwise) pro rata based on each Lender's respective Revolving Loan
Commitment Percentage and the proceeds thereof shall be paid directly to
the Issuing Lender for application to the respective LOC Obligations. Each
such Lender hereby irrevocably agrees to make such Revolving Loans
immediately upon any such request or deemed request on account of each such
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the same such date notwithstanding (i) the amount
of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether
any conditions specified in Section 5.2 are then satisfied, (iii) whether a
Default or Event of Default then exists, (iv) failure of any such request
or deemed request for Revolving Loans to be made by the time otherwise
required hereunder, (v) the date of such Mandatory Borrowing, or (vi) any
reduction in the Revolving Committed Amount or any termination of the
Commitments. In the event that any Mandatory Borrowing 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 fund (as of the
date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such date and prior
to such purchase) its Participation Interest in the outstanding LOC
Obligations; provided, further, that in the event any Lender shall fail to
fund its Participation Interest on the day the Mandatory Borrowing would
otherwise have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable to the Issuing
Lender upon
30
demand, at the rate equal to, if paid within two Business Days of such
date, the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, a Letter of
Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Subsidiary of the Borrower;
provided that notwithstanding such statement, the Borrower shall be the
actual account party for all purposes of this Credit Agreement for such
Letter of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
(g) Modification and Extension. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby Practices 1998
(the "ISP98"), in either case, as published as of the date of issue by the
International Chamber of Commerce, in which case the UCP or ISP98, as
applicable, may be incorporated therein and deemed in all respects to be a
part thereof.
(i) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the LOC
Participants are only those expressly set forth in this Credit Agreement
and that the Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 2.2
shall be deemed to prejudice the right of any LOC Participant to recover
from the Issuing Lender any amounts made available by such LOC Participant
to the Issuing Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document, this Credit Agreement shall
govern.
(k) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this Credit
Agreement, the Credit Parties hereby agree to protect, indemnify, pay
and save the Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B)
31
the failure of the Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between the Credit Parties and the Issuing Lender, the
Credit Parties shall assume all risks of the acts, omissions or misuse
of any Letter of Credit by the beneficiary thereof. The Issuing Lender
shall not be responsible for: (A) 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)
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)
failure of the beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit; (D)
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; (E) errors in interpretation of
technical terms; (F) 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 (G) any consequences
arising from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith,
shall not put the Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect
and indemnify the Issuing Lender against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Credit Parties, including, without limitation, any and
all risks of the acts or omissions, whether rightful or wrongful, of
any present or future Government Acts. The Issuing Lender shall not,
in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing
Lender.
(iv) Nothing in this subsection (k) is intended to limit the
reimbursement obligation of the Borrower contained in this Section
2.2. The obligations of the Borrower under this subsection (k) shall
survive the termination of this Credit Agreement. No act or omission
of any current or prior beneficiary
32
of a Letter of Credit shall in any way affect or impair the rights of
the Issuing Lender to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (k), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a court of
competent jurisdiction. Nothing in this Credit Agreement shall relieve
the Issuing Lender of any liability to the Borrower in respect of any
action taken by the Issuing Lender which action constitutes gross
negligence or willful misconduct of the Issuing Lender or a violation
of the UCP or Uniform Commercial Code (as applicable), as determined
by a court of competent jurisdiction.
2.3 Term Loans.
(a) Term Loan. Subject to the terms and conditions set forth herein,
each Lender severally agrees, on the Initial Funding Date, to make a term
loan (collectively, the "Term Loans") to the Borrower, in Dollars, in an
amount equal to such Lender's Term Loan Commitment Percentage, if any, of
the Term Loan Committed Amount; provided that the aggregate amount of such
Term Loans made on the Initial Funding Date shall not exceed the Term Loan
Committed Amount. Once repaid, Term Loans cannot be reborrowed.
(b) Funding of Term Loans. On the Initial Funding Date, each
applicable Lender will make its Term Loan Commitment Percentage of the Term
Loan Committed Amount available to the Administrative Agent by deposit, in
Dollars and in immediately available funds, at the offices of the
Administrative Agent at its principal office in Charlotte, North Carolina
or at such other address as the Administrative Agent may designate in
writing. The amount of the Term Loans will then be made available to the
Borrower by the Administrative Agent by crediting the account of the
Borrower on the books of such office of the Administrative Agent, to the
extent the amount of such Term Loans are made available to the
Administrative Agent. All Term Loans on the Initial Funding Date shall be
Base Rate Loans. Thereafter, all or any portion of the Term Loans may be
converted into Eurodollar Loans in accordance with the terms of Section 2.5
and the definition of "Interest Period" set forth in Section 1.1.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make a Term Loan hereunder; provided, however,
that the failure of any Lender to fulfill its obligations hereunder shall
not relieve any other Lender of its obligations hereunder. If the
Administrative Agent shall have received an executed signature page to this
Credit Agreement (whether an original or via telecopy) from a Lender, the
Administrative Agent may assume that such Lender has or will make the
amount of its Term Loans available to the Administrative Agent on the
Initial Funding Date, and the Administrative 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 Administrative
Agent, the
33
Administrative Agent shall be able to recover such corresponding amount
from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative 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 Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per
annum rate equal to (i) from the Borrower at the applicable rate for such
Term Loan and (ii) from a Lender at the Federal Funds Rate if paid within
two Business Days of the date of drawing and thereafter at a rate equal to
the Base Rate.
(c) Amortization. The principal amount of the Term Loans shall be
repaid in quarterly payments on the dates set forth below:
Principal Amortization Term Loan Principal
Payment Dates Amortization Payment
---------------------- --------------------
December 31, 1999 $3,750,000
March 31, 2000 $3,750,000
June 30, 2000 $3,750,000
September 29, 2000 $3,750,000
December 29, 2000 $6,250,000
March 30, 2001 $6,250,000
June 29, 2001 $6,250,000
September 28, 2001 $6,250,000
December 31, 2001 $12,500,000
March 29, 2002 $12,500,000
June 28, 2002 $12,500,000
September 30, 2002 $12,500,000
December 31, 2002 $15,000,000
March 31, 2003 $15,000,000
June 30, 2003 $15,000,000
September 30, 2003 $15,000,000
December 31, 2003 $18,750,000
March 31, 2004 $18,750,000
June 30, 2004 $18,750,000
September 30, 2004 $18,750,000
December 31, 2004 $25,000,000
March 31, 2005 $25,000,000
June 30, 2005 $25,000,000
September 30, 2005 $25,000,000
Total $325,000,000
34
(d) Term Notes. The portion of the Term Loan 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 Term Loan
Commitment Percentage of the Term Loan Committed Amount and substantially
in the form of Exhibit 2.3(d).
2.4 Swing Line Loans Subfacility.
(a) Swing Line Loans. The Swing Line Lender hereby agrees, on the
terms and subject to the conditions set forth herein and in the other
Credit Documents, to make loans to the Borrower in Dollars at any time and
from time to time during the period from and including the Initial Funding
Date to but not including the Maturity Date (each such loan, a "Swing Line
Loan" and collectively, the "Swing Line Loans"); provided that (i) the
aggregate principal amount of the Swing Line Loans outstanding at any one
time shall not exceed the Swing Line Committed Amount and (ii) the
aggregate amount of Swing Line Loans outstanding plus the aggregate amount
of Revolving Loans outstanding plus the aggregate amount of LOC Obligations
outstanding shall not exceed the Revolving Committed Amount. Prior to the
Maturity Date, Swing Line Loans may be repaid and reborrowed by the
Borrower in accordance with the provisions hereof.
(b) Method of Borrowing and Funding Swing Line Loans. By no later than
1:00 p.m., on the date of the requested borrowing of Swing Line Loans, the
Borrower shall telephone the Swing Line Lender as well as submit a Swing
Line Loan Request to the Swing Line Lender in the form of Exhibit 2.4(b)
setting forth (i) the amount of the requested Swing Line Loan and (ii) the
date of the requested Swing Line Loan and complying in all respects with
Section 5.2. The Swing Line Lender shall initiate the transfer of funds
representing the Swing Line Loan advance to the Borrower by 3:00 p.m. on
the Business Day of the requested borrowing.
(c) Repayment and Participations of Swing Line Loans. The Borrower
agrees to repay all Swing Line Loans within one Business Day of demand
therefor by the Swing Line Lender. Each repayment of a Swing Line Loan may
be accomplished by requesting Revolving Loans which request is not subject
to the conditions set forth in Section 5.2. In the event that the Borrower
shall fail to timely repay any Swing Line Loan, and in any event upon (i) a
request by the Swing Line Lender, (ii) the occurrence of an Event of
Default described in Section 9.1(f) or (iii) the acceleration of any Loan
or termination of any Commitment pursuant to Section 9.2, each other Lender
shall irrevocably and unconditionally purchase from the Swing Line Lender,
without recourse or warranty, an undivided interest and participation in
such Swing Line Loan in an amount equal to such other Lender's Revolving
Loan Commitment Percentage thereof, by directly purchasing a participation
in such Swing Line Loan in such amount (regardless of whether the
conditions precedent thereto set forth in Section 5.2 are then satisfied,
whether or not the Borrower has submitted a Notice of Borrowing and whether
or not the Commitments are then in effect, any Event of Default exists or
all the Loans have been accelerated) and paying the proceeds thereof to the
Swing Line Lender at the address provided in Section 11.1, or at such other
address as the Swing Line Lender may designate, in Dollars and in
immediately available
35
funds. If such amount is not in fact made available to the Swing Line
Lender by any Lender, the Swing Line Lender shall be entitled to recover
such amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof, at the Federal Funds
Rate. If such Lender does not pay such amount forthwith upon the Swing Line
Lender's demand therefor, and until such time as such Lender makes the
required payment, the Swing Line Lender shall be deemed to continue to have
outstanding Swing Line Loans in the amount of such unpaid participation
obligation for all purposes of the Credit Documents other than those
provisions requiring the other Lenders to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Loans, and any other amounts due to
it hereunder to the Swing Line Lender to fund Swing Line Loans in the
amount of the participation in Swing Line Loans that such Lender failed to
purchase pursuant to this Section 2.4(c) until such amount has been
purchased (as a result of such assignment or otherwise).
(d) Swing Line Note. The Swing Line Loans made by the Swing Line
Lender shall be evidenced by a duly executed promissory note of the
Borrower to the Swing Line Lender in the face amount of the Swing Line
Committed Amount and in substantially the form of Exhibit 2.4(d).
2.5 Continuations and Conversions.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate
Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate Loans;
provided, however, that (a) each such continuation or conversion must be
requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.5, in compliance with the
terms set forth below, (b) except as provided in Section 3.12, Eurodollar Loans
may only be continued or converted into Base Rate Loans on the last day of the
Interest Period applicable hereto, (c) after notice from the Administrative
Agent or the Required Lenders, Eurodollar Loans may not be continued nor may
Base Rate Loans be converted into Eurodollar Loans during the existence and
continuation of a Default or Event of Default, (d) any request to extend a
Eurodollar Loan that fails to comply with the terms hereof or any failure to
request an extension of a Eurodollar Loan at the end of an Interest Period shall
constitute a conversion to a Base Rate Loan on the last day of the applicable
Interest Period and (e) any request for continuation 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. Each continuation or
conversion must be requested by the Borrower no later than 11:00 a.m. (i) on the
date for a requested conversion of a Eurodollar Loan to a Base Rate Loan or (ii)
three Business Days prior to the date for a requested continuation of a
Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in each
case pursuant to a written Notice of Continuation/Conversion submitted to the
Administrative Agent which shall set forth (A) whether the Loans to be continued
or converted are Revolving Loans or Term Loans, (B) whether the Borrower wishes
to continue or convert such Loans and (C) if the request is to continue a
Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan, the Interest
Period applicable thereto.
36
2.6 Minimum Amounts.
Each request for a borrowing, conversion or continuation shall be subject
to the requirements that (a) each Eurodollar Loan shall be in a minimum amount
of $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (b)
each Base Rate Loan shall be in a minimum amount of the lesser of $1,000,000
(and integral multiples of $500,000 in excess thereof) or the remaining amount
available under the Revolving Committed Amount, the Swing Line Committed Amount
or the Term Loan Committed Amount, as applicable, and (c) no more than ten
Eurodollar Loans shall be outstanding hereunder at any one time. For the
purposes of this Section, all Eurodollar Loans with the same Interest Periods
shall be considered as one Eurodollar Loan, but Eurodollar Loans with different
Interest Periods, even if they begin on the same date, shall be considered as
separate Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
--------------------------------------
AND LETTERS OF CREDIT
---------------------
3.1 Interest.
(a) Interest Rate. All Base Rate Loans shall accrue interest at the
Adjusted Base Rate, and all Eurodollar Loans shall accrue interest at the
Adjusted Eurodollar Rate. All Swing Line Loans shall accrue interest at the
Adjusted Base Rate.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing (but
not timely paid) hereunder or under the other Credit Documents (including
without limitation fees and expenses) shall bear interest, payable on
demand, at a per annum rate equal to 2% plus the rate which would otherwise
be applicable (or if no rate is applicable, then the rate for Revolving
Loans that are Base Rate Loans plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and payable in
arrears on each Interest Payment Date. If an Interest Payment Date falls on
a date which is not a Business Day, such Interest Payment Date shall be
deemed to be the next preceding Business Day.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts to be
made by a Credit Party under this Credit Agreement shall be received not later
than 2:00 p.m. on the date when due, in Dollars and in immediately available
funds, by the Administrative Agent at its offices in Charlotte, North Carolina.
Payments received after such time shall be deemed to have been received on the
next Business Day. The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Administrative Agent, the Loans, Letters
of Credit, fees or other amounts payable by the Borrower hereunder to which such
payment is to be applied
37
(and in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall, subject to
Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may deem appropriate). The Administrative Agent will
distribute such payments to the applicable Lenders on the date of receipt
thereof if any such payment is received prior to 2:00 p.m.; otherwise the
Administrative Agent will distribute such payment to the applicable 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.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time without premium or penalty;
provided, however, that (i) Eurodollar Loans may only be prepaid on three
Business Days' prior written notice to the Administrative Agent and any
prepayment of Eurodollar Loans will be subject to Section 3.14; (ii) each
such partial prepayment of Loans shall be (A) in the case of Revolving
Loans and the Term Loan, in the minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof and (B) in the case of
Swing Line Loans, in the minimum principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof and (iii) voluntary
prepayments with respect to the Term Loans shall be applied first in direct
order to the Principal Amortization Payments due during the first twelve
months following the date of such voluntary prepayment and second pro rata
among the remaining Principal Amortization Payments. Amounts prepaid
hereunder shall be applied as the Borrower may elect; provided, that if the
Borrower fails to specify a voluntary prepayment then such prepayment shall
be applied first to Revolving Loans and then to the Term Loans, in each
case first to Base Rate Loans and then to Eurodollar Loans in direct order
of Interest Period maturities and then to Swing Line Loans.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time (A) the sum of the
aggregate amount of Revolving Loans outstanding plus the aggregate
amount of Swing Line Loans outstanding plus the aggregate amount of
LOC Obligations outstanding exceeds the Revolving Committed Amount,
(B) the aggregate amount of Swing Line Loans outstanding exceeds the
Swing Line Committed Amount or (C) the aggregate amount of LOC
Obligations outstanding exceeds the LOC Committed Amount, the Borrower
shall immediately make a principal payment to the Administrative Agent
in the manner and in an amount necessary to be in compliance with
Sections 2.1, 2.2 and 2.4, as applicable.
(ii) Asset Dispositions. Immediately upon receipt by a Credit
Party or any of its Subsidiaries of proceeds from any Asset
Disposition, the Borrower shall
38
forward 100% of the Net Cash Proceeds of such Asset Disposition to the
Lenders as a prepayment of the Loans (to be applied as set forth in
Section 3.3(c) below).
(c) Application of Prepayments. All amounts required to be paid
pursuant to Section 3.3(b)(i) shall be applied first to Revolving Loans,
second to Swing Line Loans and third, to a cash collateral account in
respect of LOC Obligations. All amounts required to be paid pursuant to
Section 3.3(b)(ii) above shall be applied first to the Term Loans (pro rata
among the remaining Principal Amortization Payments), second to the
Revolving Loans (with a corresponding permanent reduction in the Revolving
Committed Amount), third to the Swing Line Loans (with a corresponding
reduction in the Revolving Committed Amount) and fourth to a cash
collateral account in respect of LOC Obligations. Within the parameters of
the application set forth above, prepayments shall be applied first to Base
Rate Loans and then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments hereunder shall be subject to Section 3.14.
3.4 Fees.
(a) Commitment Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrower agrees
to pay to the Administrative Agent, for the pro rata benefit of each
applicable Lender (based on each Lender's Revolving Loan Commitment
Percentage of the Revolving Committed Amount), a fee equal to the product
of (a) the Applicable Percentage for Commitment Fees multiplied by (b) the
Unused Commitment (the "Commitment Fees"). The accrued Commitment Fees
shall commence to accrue on the Initial Funding Date and shall be due and
payable in arrears on the last Business Day of each calendar quarter (as
well as on the Maturity Date and on any date that the Revolving Committed
Amount is reduced) for the immediately preceding calendar quarter (or
portion thereof), beginning with the first of such dates to occur after the
Closing Date. For purposes of computation of the Commitment Fees, the Swing
Line Loans shall not be counted toward or considered usage of the Revolving
Committed Amount.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the issuance of
Letters of Credit hereunder, the Borrower agrees to pay to the Issuing
Lender, for the pro rata benefit of the applicable Lenders (based on
each Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a fee (the "Letter of Credit Fee") equal to the
Applicable Percentage for the Letter of Credit Fee on the average
daily maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration. The Letter
of Credit Fee will be payable quarterly in arrears 15 days after the
end of each calendar quarter and on the Maturity Date.
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (i) above, the Borrower shall pay
to the Issuing Lender for its own account, without sharing by the
other Lenders, (A) a
39
fee equal to one-fourth of one percent (.25%) per annum on the total
sum of all Letters of Credit issued by the Issuing Lender, such fee to
be paid quarterly in arrears 15 days after the end of each calendar
quarter (as well as on the Maturity Date) and (B) the customary
charges from time to time to the Issuing Lender for its services in
connection with the issuance, amendment, payment, transfer,
administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the "Issuing Lender Fees").
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent in the Administrative
Agent Fee Letter.
3.5 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans, all Term Loans, all Swing Line Loans and all LOC Obligations,
together with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner pursuant to
Section 9.
3.6 Computations of Interest and Fees.
(a) Except for Base Rate Loans, in which case interest shall be
computed on the basis of a 365 or 366 day year as the case may be (unless
the Base Rate is determined by reference to the Federal Funds Rate), all
computations of interest and fees hereunder shall be made on the basis of
the actual number of days elapsed over a year of 360 days. Interest shall
accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to conform
to and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Borrower are
hereby limited by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such documents shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans
40
and not to the payment of interest, or refunded to the Borrower or the
other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to
demand payment of the Loans or any other indebtedness evidenced by any of
the Credit Documents does not include the right to receive any interest
which has not otherwise accrued on the date of such demand, and the Lenders
do not intend to charge or receive any unearned interest in the event of
such demand. All interest paid or agreed to be paid to the Lenders with
respect to the Loans shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term
(including any renewal or extension) of the Loans so that the amount of
interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
3.7 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing (including, without
limitation, each Mandatory Borrowing), each payment or prepayment of
principal of any Loan, each payment of fees (other than the Issuing Lender
Fees retained by the Issuing Lender for its own account and the
administrative fees retained by the Administrative Agent for its own
account), each reduction of the Revolving Committed Amount, and each
conversion or continuation of any Loan, shall be allocated pro rata among
the relevant Lenders in accordance with the respective Revolving Loan
Commitment Percentages and Term Loan Commitment Percentages, as applicable,
of such Lenders (or, if the Commitments of such Lenders have expired or
been terminated, in accordance with the respective principal amounts of the
outstanding Loans and Participation Interests of such Lenders); provided
that, if any Lender shall have failed to pay its applicable pro rata share
of any Revolving Loan, then any amount to which such Lender would otherwise
be entitled pursuant to this subsection (a) shall instead be payable to the
Administrative Agent; provided further, that in the event any amount paid
to any Lender pursuant to this subsection (a) is rescinded or must
otherwise be returned by the Administrative Agent, each Lender shall, upon
the request of the Administrative Agent, repay to the Administrative Agent
the amount so paid to such Lender, with interest for the period commencing
on the date such payment is returned by the Administrative Agent until the
date the Administrative Agent receives such repayment at a rate per annum
equal to, during the period to but excluding the date two Business Days
after such request, the Federal Funds Rate, and thereafter, the Base Rate
plus two percent (2%) per annum.
(b) Letters of Credit. Each payment of unreimbursed drawings in
respect of LOC Obligations shall be allocated to each LOC Participant pro
rata in accordance with its Revolving Loan Commitment Percentage; provided
that, if any LOC Participant shall have failed to pay its applicable pro
rata share of any drawing under any Letter of Credit, then any amount to
which such LOC Participant would otherwise be entitled pursuant to this
subsection (b) shall instead be payable to the Issuing Lender; provided
further, that in the event any amount paid to any LOC Participant pursuant
to this subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each LOC Participant
41
shall, upon the request of the Issuing Lender, repay to the Administrative
Agent for the account of the Issuing Lender the amount so paid to such LOC
Participant, with interest for the period commencing on the date such
payment is returned by the Issuing Lender until the date the Issuing Lender
receives such repayment at a rate per annum equal to, during the period to
but excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per annum.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any 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 the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly pay in cash or purchase
from the other Lenders a participation in such Loans, LOC Obligations, and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Credit Parties agree that
any Lender so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker's
lien or counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan, LOC Obligation or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Administrative Agent shall fail to remit
to the Administrative Agent or any other Lender an amount payable by such Lender
or the Administrative Agent to the Administrative 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 if paid within two
Business Days of the date when such amount is due at a per annum rate equal to
the Federal Funds Rate and thereafter at a per annum rate equal to the Base Rate
until the date such amount is paid to the Administrative Agent or such other
Lender. 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 3.8
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 3.8 to share in the benefits of any recovery on such
secured claim.
42
3.9 Capital Adequacy.
If, after the date hereof, any Lender has determined that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender, or its parent corporation, 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 (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender, or its parent corporation, could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's (or parent corporation'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 on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) 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. This covenant shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder. No Lender or
parent corporation shall be entitled to receive any compensation for such
amounts incurred more than 180 days prior to delivery of such notice.
3.10 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative Agent
shall have determined in good faith (which determination shall be conclusive and
binding upon the Borrower) 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, the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter, and will also give prompt written notice to the Borrower
when such conditions no longer exist. If such notice is given (a) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (b) any Loans that were to have been converted on the
first day of such Interest Period to or continued as Eurodollar Loans shall be
converted to or continued as Base Rate Loans and (c) any outstanding Eurodollar
Loans shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to Eurodollar Loans.
3.11 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be
43
withdrawn whenever such circumstances no longer exist), (b) the commitment of
such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert a Base Rate Loan to Eurodollar Loans shall forthwith be
canceled and, until such time as it shall no longer be unlawful for such Lender
to make or maintain Eurodollar Loans, such Lender shall then have a commitment
only to make a Base Rate Loan when a Eurodollar Loan is requested and (c) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days or the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 3.14.
3.12 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of payments
to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 3.13 (including Non-Excluded Taxes imposed solely by reason of any
failure of such Lender to comply with its obligations under Section 3.13(b)) and
changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar Rate hereunder;
or
(c) shall impose on such Lender any other condition (excluding any tax of
any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such increased cost or reduced amount
44
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Administrative Agent at least one Business Day's notice of such election, in
which case the Borrower shall promptly pay to such Lender, upon demand, without
duplication, such amounts, if any, as may be required pursuant to Section 3.14.
If any Lender becomes entitled to claim any additional amounts pursuant to this
Section 3.12, it shall provide prompt notice thereof to the Borrower, through
the Administrative Agent, certifying (x) that one of the events described in
this Section 3.12 has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this Section 3.12 submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive and binding on the parties hereto in the absence of manifest error.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder. No Lender shall be
entitled to receive any compensation for such amounts incurred more than 180
days prior to delivery of such certificate.
3.13 Taxes.
(a) Except as provided below in this Section 3.13, all payments made by a
Credit Party under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net income
taxes, imposed: (i) by the jurisdiction under the laws of which such Lender,
applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder or under any
Notes, (A) the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the Credit Parties shall
be entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
Section 3.13 whenever any Non-Excluded Taxes are payable by a Credit Party, and
(B) as promptly as possible thereafter
45
such Credit Party shall send to the Administrative Agent for its own account or
for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Credit Party showing payment thereof.
If a Credit Party fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Credit Party
shall indemnify the Administrative Agent and any Lender for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure. If a Lender shall change its
office that makes or maintains a Loan hereunder, the Credit Parties shall not be
required to pay any increased amounts to the Lender in respect of any
Non-Excluded Taxes pursuant to this subsection 3.13 to the extent that any
obligation to withhold or deduct any amount with respect to such Non-Excluded
Taxes existed on the date the Lender changed such office, unless the Lender
changed the office at the request of a Credit Party. The agreements in this
subsection shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (A) on or before the date of any payment by a Credit Party under
this Credit Agreement or Notes to such Lender, deliver to the Borrower and
the Administrative Agent (x) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or withholding
of any United States federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(C) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent; or
(ii) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (A) represent
to the Borrower (for the benefit of the Borrower and the Administrative
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (B) agree to furnish to the Borrower, on or
before the date of any payment by the Borrower, with a copy to the
Administrative Agent, two accurate and complete original signed copies of
Internal Revenue Service Form W-8, or successor applicable form certifying
to such Lender's legal entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the provisions of Section 881(c)
of the Internal Revenue Code with respect to
46
payments to be made under this Credit Agreement and any Notes (and to
deliver to the Borrower and the Administrative Agent two further copies of
such form on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time reasonably
requested by the Borrower or the Administrative Agent for filing and
completing such forms), and (C) agree, to the extent legally entitled to do
so, upon reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Administrative Agent) such other
forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a participant of a
Lender pursuant to Section 11.3 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the case of a
participant of a Lender, the obligations of such participant of a Lender
pursuant to this subsection (b) shall be determined as if the participant of a
Lender were a Lender except that such participant of a Lender shall furnish all
such required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
(c) If any such taxes shall be or become applicable after the date of this
Credit Agreement to such payments by the Credit Parties to a Lender, such Lender
shall use reasonable efforts to make, fund or maintain the Loan or Loans, as the
case may be, through another lending office located in another jurisdiction so
as to reduce, to the fullest extent possible, the Credit Parties' liability
hereunder, if the making, funding or maintenance of such Loan or Loans through
such other office does not, in the reasonable judgment of the Lender, materially
affect the Lender of such Loan. If a Credit Party is required to make any
additional payment to a Lender pursuant to this Section 3.13, and any such
Lender receives, or is entitled to receive, a credit against, remission for, or
repayment of, any tax paid or payable by it in respect of, or calculated with
reference to, the taxes giving rise to such payment, such Lender shall, within a
reasonable time after it receives such credit, relief, remission or repayment,
reimburse such Credit Party the amount of any such credit, relief, remission or
repayment.
3.14 Indemnity.
The Credit Parties promise to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit
47
Agreement and (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to (i) the present value of 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) minus (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. The agreements in this Section shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.15 Replacement Lenders.
At any time after the payment by the Borrower to any Lender of any amount
pursuant to Section 3.12 or 3.13 that the Borrower reasonably deems material,
the Borrower may, by writing addressed to the Administrative Agent and each
Lender that requested the payment of such amount, nominate or propose an
Eligible Assignee that is willing to become the assignee of the Commitment and
other obligations of such Lender (a "Replacement Lender") pursuant to Section
11.3, and within fifteen (15) Business Days after receipt of such proposal from
the Borrower, each such Lender shall execute and deliver to the Administrative
Agent an Assignment Agreement whereby such Lender shall assign its entire
Commitment in favor of the proposed Replacement Lender in accordance with
Section 11.3 unless, prior to the expiration of such period, the Administrative
Agent shall have notified the Borrower and such Lender that the proposed
Replacement Lender is not reasonably acceptable to the Administrative Agent;
provided, that in no event will (i) any Lender be required to enter into an
Assignment Agreement at a price less than par plus accrued interest and prorated
fees and other costs due hereunder to the effective date thereof, (ii) the
Administrative Agent or any Lender be obligated to assist the Borrower in
identifying any Eligible Assignees that are willing to become such a Replacement
Lender or (iii) any such assignment be required if the consummation thereof
conflicts with any Requirement of Law.
SECTION 4
GUARANTY
--------
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Lender, each Affiliate of a Lender
that enters into a Hedging Agreement and the Agents the prompt payment of the
Credit Party Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This Guaranty is a guaranty
of payment and not of collection and is a continuing guaranty and shall apply to
all Credit Party Obligations whenever arising.
48
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or the Hedging Agreements, or any other agreement
or instrument referred to therein, 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.
Each Guarantor agrees that this Guaranty may be enforced by the Lenders without
the necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the Notes
or any other of the Credit Documents or any collateral, if any, hereafter
securing the Credit Party Obligations or otherwise and each Guarantor hereby
waives the right to require the Lenders to proceed against the Borrower or any
other Person (including a co-guarantor) or to require the Lenders to pursue any
other remedy or enforce any other right. Each Guarantor further agrees that it
shall have no right of subrogation, indemnity, reimbursement or contribution
against a Borrower or any other Guarantor of the Credit Party Obligations for
amounts paid under this Guaranty until such time as the Lenders (and any
Affiliates of Lenders entering into Hedging Agreements) have been paid in full,
all Commitments under the Credit Agreement have been terminated and no Person or
Governmental Authority shall have any right to request any return or
reimbursement of funds from the Lenders in connection with monies received under
the Credit Documents. Each Guarantor further agrees that nothing contained
herein shall prevent the Lenders from suing on the Notes or any of the other
Credit Documents or any of the Hedging Agreements or foreclosing its security
interest in or Lien on any collateral, if any, securing the Credit Party
Obligations or from exercising any other rights available to it under this
Credit Agreement, the Notes, any other of the Credit Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any of any Guarantor's obligations hereunder; it being the purpose
and intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. Neither any
Guarantor's obligations under this Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower or by reason of the bankruptcy or insolvency of the
Borrower. Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Credit Party Obligations and notice of or
proof of reliance of by the Administrative Agent or any Lender upon this
Guarantee or acceptance of this Guarantee. The Credit Party Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee. All dealings between the Borrower and any of the Guarantors, on the
one hand, and the Administrative Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantors further agree to all rights of
set-off as set forth in Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) all or any part of the Collateral now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time;
49
(b) the Lenders shall not have any obligation to protect, perfect, secure or
insure any such security interests, liens or encumbrances now or hereafter held,
if any, for the Credit Party Obligations or the properties subject thereto; (c)
the time or place of payment of the Credit Party Obligations may be changed or
extended, in whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in part; (d) the Borrower and any other
party liable for payment under the Credit Documents may be granted indulgences
generally; (e) any of the provisions of the Notes or any of the other Credit
Documents may be modified, amended or waived; (f) any party (including any
co-guarantor) liable for the payment thereof may be granted indulgences or be
released; and (g) any deposit balance for the credit of the Borrower or any
other party liable for the payment of the Credit Party Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Credit Party
Obligations, all without notice to or further assent by such Guarantor, which
shall remain bound thereon, notwithstanding any such exchange, compromise,
surrender, extension, renewal, acceleration, modification, indulgence or
release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; (e) all other notices to which such
Guarantor might otherwise be entitled; and (f) demand for payment under this
Guaranty.
4.5 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 Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative 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.
4.6 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative 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
50
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.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, to the extent the obligations of any Guarantor shall
be adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
4.8 Rights of Contribution.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Credit Documents and no Guarantor shall exercise such
rights of contribution until all Credit Party Obligations have been paid in full
and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
--------------------
5.1 Closing Conditions.
The obligation of the Lenders to make the initial Extension of Credit is
subject to satisfaction of the following conditions on or before November 30,
1999:
(a) Executed Credit Documents. Receipt by the Administrative Agent of duly
executed copies of: (i) this Credit Agreement; (ii) the Notes, (iii) the
Collateral Documents and (iv) all other Credit Documents, each in form and
substance acceptable to the Lenders in their sole discretion.
51
(b) Corporate Documents. Receipt by the Administrative 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 Initial Funding 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 Initial Funding Date.
(iii) Resolutions. Copies of resolutions of the Board of Directors of
each Credit Party approving and adopting the Credit Documents, 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 Initial
Funding 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 each other jurisdiction in which
the failure to so qualify and be in good standing would have or be
reasonably expected to have a Material Adverse Effect on the business or
operations of such Credit Party in such jurisdiction and (B) to the extent
available, a certificate indicating payment of all corporate 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 Initial Funding Date.
(c) Financial Statements. Receipt by the Administrative Agent and the
Lenders of (i) the audited financial statements of the Credit Parties and their
Subsidiaries including balance sheets and income and cash flow statements for
each of the fiscal years ending December 31, 1996, 1997 and 1998, in each case
audited by nationally recognized independent public accountants and containing
an unqualified opinion of such firm that such statements present fairly, in all
material respects, the financial position and results of operations of the
Credit Parties and their Subsidiaries, and are prepared in conformity with GAAP,
(ii) the unaudited quarterly financial statements of the Credit Parties and
their Subsidiaries for the fiscal quarter most recently ending, (iii) unaudited
pro forma consolidated balance sheet of the Credit Parties and their
Subsidiaries giving effect to the Merger as if such Merger had occurred on July
31, 1999; provided that if the Initial Funding Date is after November 15, 1999,
unaudited pro forma consolidated balance sheet of the Credit Parties and their
Subsidiaries giving effect to the Merger as if such Merger had occurred on
September 30, 1999, each in form and substance acceptable to the Administrative
Agent, and (iv) unaudited pro forma income statement of the Credit Parties and
their Subsidiaries (including a calculation of EBITDA) giving effect to the
Merger for the trailing twelve month period subsequent to the most recently
completed fiscal quarter end, in
52
form and substance acceptable to the Administrative Agent and (v) pro forma
annual projections for each twelve month period through the fiscal year ending
December 31, 2005, as updated through the Initial Funding Date (collectively,
the "Projections"), each in form and substance acceptable to the Administrative
Agent. All pro forma financial statements shall be prepared in accordance with
the requirements of Regulation S-X under the Securities Act of 1933, as amended,
applicable to a Registration Statement under such Act on Form S-1.
(d) Opinion of Counsel. Receipt by the Administrative Agent of an opinion,
or opinions (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability), satisfactory to the Administrative
Agent, addressed to the Administrative Agent on behalf of the Lenders and dated
as of the Initial Funding Date, from legal counsel to the Credit Parties and
their Subsidiaries.
(e) Personal Property Collateral. The Collateral Agent shall have received
(in form and substance satisfactory to the Collateral Agent):
(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 Lenders' 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 Collateral Agent's sole discretion, to
perfect the Lenders' security interest in the Collateral;
(iii) searches of ownership of intellectual property in the
appropriate governmental offices and such patent/trademark/copyright
filings as requested by the Collateral Agent to the extent necessary to
perfect the Lenders' security interest in the Collateral;
(iv) all stock certificates evidencing the stock pledged to the
Lenders pursuant to the Pledge Agreement, together with duly executed in
blank undated stock powers attached thereto; and
(v) 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 Lenders' security interest in the Collateral.
(f) Real Property Collateral. The Collateral Agent shall have received (in
form and substance satisfactory to the Collateral Agent):
(i) fully executed and notarized mortgages, deeds of trust or deeds to
secure debt (each a "Mortgage" and collectively the "Mortgages")
encumbering the fee interest of the Credit Parties in each real property
asset owned by a Credit Party set forth on Schedule 5.1(f)(i) (each a
"Mortgaged Property" and collectively the "Mortgaged
53
Properties"), together with such UCC-1 financing statements as the
Collateral Agent shall deem appropriate with respect to each such Mortgaged
Property;
(ii) an opinion of counsel (which counsel shall be reasonably
satisfactory to the Administrative Agent) in the state in which each
Mortgaged Property is located with respect to the enforceability of the
form of Mortgage and sufficiency of the form of UCC-1 financing statements
to be recorded or filed in such state, if applicable, and such other
matters as the Collateral Agent may request, in form and substance
satisfactory to the Collateral Agent;
(iii) ALTA or other appropriate form mortgagee title insurance
policies (the "Mortgage Policies") issued by a title insurer company
satisfactory to the Collateral Agent (the "Title Insurance Company"), in an
amount satisfactory to the Collateral Agent with respect to each Mortgaged
Property, which amount shall not exceed the fair market value for each such
Mortgaged Property, assuring the Collateral Agent that the applicable
Mortgages create valid and enforceable first priority mortgage liens on the
respective Mortgaged Property, free and clear of all defects and
encumbrances except Permitted Liens which Mortgage Policies shall be in
form and substance reasonably satisfactory to the Collateral Agent and
containing such endorsements as shall be reasonably satisfactory to the
Collateral Agent and for any other matters that the Collateral Agent may
request, and providing affirmative insurance and such reinsurance as the
Collateral Agent may request, all of the foregoing in form and substance
reasonably satisfactory to the Collateral Agent.
(iv) maps or plats of an as-built survey of the sites of the Mortgaged
Properties certified to the Administrative Agent and the Title Insurance
Company in a manner reasonably satisfactory to them, dated a date
satisfactory to the Collateral Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably satisfactory to
the Collateral Agent and the Title Insurance Company, which maps or plats
and the surveys on which they are based shall be sufficient to delete any
standard printed survey exception contained in the applicable title policy
and be made in accordance with the Minimum Standard Detail Requirements for
Land Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping in
1992, and, without limiting the generality of the foregoing, there shall be
surveyed and shown on such maps, plats or surveys the following: (A) the
locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (B) the lines of
streets abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites; (D) all
roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (E) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (F) if the site is described
as being on a filed map, a legend relating the survey to said map;
(v) certification from a registered engineer or land surveyor in a
form reasonably satisfactory to the Collateral Agent or other evidence
acceptable to the Collateral Agent that
54
none of the improvements on the Mortgaged Properties are located within any
area designated by the Director of the Federal Emergency Management Agency
as a "special flood hazard" area or if any improvements on the Mortgaged
Properties are located within a "special flood hazard" area, evidence of a
flood insurance policy (if such insurance is required by applicable law)
from a company and in an amount satisfactory to the Collateral Agent for
the applicable portion of the premises, naming the Collateral Agent, for
the benefit of the Lenders, as mortgagee; and
(vi) evidence satisfactory to the Collateral Agent that each of the
Mortgaged Properties, and the uses of the Mortgaged Properties, are in
compliance in all material respects with all applicable laws, regulations
and ordinances including without limitation health and environmental
protection laws, erosion control ordinances, storm drainage control laws,
doing business and/or licensing laws, zoning laws (the evidence submitted
as to zoning should include the zoning designation made for each of the
Mortgaged Properties, the permitted uses of each such Mortgaged Property
under such zoning designation and zoning requirements as to parking, lot
size, ingress, egress and building setbacks) and laws regarding access and
facilities for disabled persons including, but not limited to, the federal
Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the
Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.
(g) Evidence of Insurance. Receipt by the Collateral Agent of copies of
insurance policies or certificates of insurance of the Credit Parties and their
Subsidiaries evidencing liability and casualty insurance meeting the
requirements set forth in the Credit Documents, including, but not limited to,
naming the Collateral Agent as additional insured and sole loss payee on behalf
of the Lenders.
(h) Consents.
(i) Receipt by the Administrative Agent of evidence that all
governmental, shareholder and material third party consents (including
Xxxx-Xxxxx-Xxxxxx clearance) and approvals necessary or desirable in
connection with the Merger and execution and delivery of the Credit
Documents and the consummation of the transactions set forth therein and
expiration of all applicable waiting periods without any action being taken
by any authority that could reasonably be likely to restrain, prevent or
impose any material adverse conditions on the Merger or such other
transactions contemplated hereby or that could reasonably be likely to
threaten any of the foregoing.
(ii) Receipt by the Administrative Agent of a consent executed by the
holders of the Subordinated Debt, in form and substance satisfactory to the
Administrative Agent.
(i) Material Adverse Effect. There shall not have occurred any development
or event relating to or affecting a Credit Party or any of their Subsidiaries
which would have or be reasonably expected to have a Material Adverse Effect
since December 31, 1998.
(j) Litigation. There shall not exist any (i) order, decree, judgment,
ruling or injunction or (ii) pending or threatened action, suit, investigation
or proceeding against a Credit
55
Party or any of their Subsidiaries that would have or be reasonably expected to
have a Material Adverse Effect, provided that, if the Court of Chancery for the
State of Delaware for New Castle County shall have approved the Settlement with
respect to the Designated Litigation, the Lenders shall be satisfied that such
Designated Litigation is not reasonably expected to have a Material Adverse
Effect. As used herein, the term "Settlement" means settlement of the Designated
Litigation pursuant to the Stipulation and Agreement of Compromise and
Settlement, dated September 21, 1999, and the term "Designated Litigation" means
the cases consolidated as In re Xxxxx, Inc. Shareholders Litigation,
Consolidated C.A. No. 17052, in the Court of Chancery for the State of Delaware
for New Castle County.
(k) Officer's Certificates. The Administrative Agent shall have received a
certificate or certificates executed by the chief financial officer of the
Borrower on behalf of the Credit Parties as of the Initial Funding Date stating
that (A) the Credit Parties and each of their Subsidiaries are in compliance
with all existing material financial obligations, (B) 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,
(C) no action, suit, investigation or proceeding is pending or threatened in any
court or before any arbitrator or governmental instrumentality that purports to
effect a Credit Party, any of the Credit Parties' Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding would have or be reasonably expected to have a
Material Adverse Effect, (D) the Projections (as defined in Section 5.1(c)) were
prepared in good faith and using reasonable assumptions and (E) immediately
after giving effect to this Credit Agreement, the other Credit Documents and all
the transactions contemplated therein to occur on such date, (1) each Credit
Party is Solvent, (2) no Default or Event of Default exists, (3) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (4) the Credit
Parties are in compliance with each of the financial covenants set forth in
Section 7.11.
(l) Consummation of Merger. The Administrative Agent shall have received
evidence of consummation of the Merger on the terms and conditions provided in
the Merger Agreement (including satisfaction of the conditions set forth therein
in all material respects). There shall not have been any material modification,
amendment, supplement or waiver to the Merger Agreement without the prior
written consent of the Administrative Agent, including, but not limited to, any
modifications, amendment, supplement or waiver relating to all disclosure
schedules and exhibits. Receipt by the Administrative Agent of the final Merger
Agreement, together with all exhibits and schedules thereto, certified by an
officer of the Borrower.
(m) Indenture. The Administrative Agent shall have received a certified
copy of the Indenture, with all amendments thereto (satisfactory in form and
substance to the Administrative Agent).
(n) Payment of Prior Credit Agreement. Receipt by the Administrative Agent
of evidence that all obligations outstanding under the Prior Credit Agreement
have been paid in full.
56
(o) Fees and Expenses. Payment by the Borrower of all fees and expenses
owed by the Borrower to the Lenders and the Agents, including, without
limitation, payment to the Agents of the fees set forth in the Fee Letters.
(p) Year 2000 Problem. The Administrative Agent shall be satisfied that (i)
the Credit Parties and their Subsidiaries are taking all necessary and
appropriate steps to ascertain the extent of, and to quantify and successfully
address, business and financial risks facing the Credit Parties and Subsidiaries
as a result of the Year 2000 Problem and (ii) the Credit Parties' and their
Subsidiaries' material computer applications will, on a timely basis, adequately
address the Year 2000 Problem in all material respects.
(q) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably and timely requested by any Lender,
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 Credit Parties and their Subsidiaries.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in the case of any new
Revolving Loan, to the Administrative Agent, an appropriate Notice of Borrowing,
duly executed and completed, by the time specified in Section 2.1, (ii) in the
case of any Letter of Credit, to the Issuing Lender, an appropriate request for
issuance of a Letter of Credit in accordance with the provisions of Section 2.2,
and (iii) in the case of any Swing Line Loan, to the Swing Line Lender, a Swing
Line Loan Request, duly executed and completed, by the time specified in Section
2.4.
(b) Representations and Warranties. The representations and warranties made
by the Credit Parties in any Credit Document are true and correct in all
material respects at and as if made as of such date except to the extent they
expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or be continuing
either prior to or after giving effect thereto.
(d) No Material Adverse Effect. There shall not have occurred any
development or event relating to or affecting a Credit Party or any of their
Subsidiaries which would have or be reasonably expected to have a Material
Adverse Effect.
(e) Availability. Immediately after giving effect to the making of a Loan
(and the application of the proceeds thereof) or to the issuance of a Letter of
Credit, as the case may be, (i) the sum of the Revolving Loans outstanding plus
LOC Obligations outstanding plus Swing Line Loans outstanding shall not exceed
the Revolving Commitment Amount, (ii) the sum of
57
LOC Obligations outstanding shall not exceed the LOC Committed Amount and (iii)
the sum of Swing Line Loans outstanding shall not exceed the Swing Line
Committed Amount.
The delivery of each Notice of Borrowing, Swing Line Loan Request and each
request for a Letter of Credit shall constitute a representation and warranty by
the Credit Parties of the correctness of the matters specified in subsections
(b), (c), (d) and (e) above. This Section 5.2 shall not apply to continuations
or conversions of Loans made pursuant to Section 2.5.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
The Credit Parties hereby represent to the Administrative Agent and each
Lender that:
6.1 Financial Condition.
The financial statements delivered to the Lenders pursuant to Section
5.1(c) and Section 7.1(a) and (b), (a) have been prepared in accordance with
GAAP (except as may otherwise be permitted under Section 7.1(a) and (b)) and (b)
present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating (as applicable) financial
condition, results of operations and cash flows of the Credit Parties and their
Subsidiaries as of such date and for such periods. Since December 31, 1998,
there has been no sale, transfer or other disposition by a Credit Party or any
of its Subsidiaries of any material part of the business or property of the
Credit Parties and their Subsidiaries, taken as a whole, and no purchase or
other acquisition 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 Credit Parties taken as a whole, which is not (A)
reflected in the most recent financial statements delivered to the Lenders
pursuant to Section 7.1 or in the notes thereto or (B) otherwise permitted by
the terms of this Credit Agreement and communicated to the Administrative Agent.
6.2 No Material Change.
Since December 31, 1998, there has been no development or event relating to
or affecting a Credit Party or any of their Subsidiaries which would have or be
reasonably expected to have a Material Adverse Effect. From and after the
Closing Date, except as otherwise permitted under this Credit Agreement, no
dividends or other distributions have been declared, paid or made upon the
Capital Stock or other equity interest in a Credit Party or any of its
Subsidiaries nor has any of the Capital Stock or other equity interest in a
Credit Party been redeemed, retired, purchased or otherwise acquired for value.
6.3 Organization and Good Standing.
Each Credit Party and each of its Subsidiaries (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
(or other jurisdiction) of its incorporation, (b) is duly qualified and in good
standing as a foreign corporation and authorized to do business in every
jurisdiction unless the failure to be so qualified, in good standing or
58
authorized would have or be reasonably expected to have a Material Adverse
Effect and (c) has the requisite corporate power and authority to own its
properties and to carry on its business as now conducted and as proposed to be
conducted.
6.4 Due Authorization.
Each of the Credit Parties (a) has the requisite corporate power and
authority to execute, deliver and perform this Credit Agreement and the other
Credit Documents to which it is a party and to incur the obligations herein and
therein provided for and (b) is duly authorized to, and has been authorized by
all necessary corporate action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
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, (b) violate, contravene or materially conflict with any
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 of which would
have or be reasonably expected to have a Material Adverse Effect or (d) result
in or require the creation of any Lien (other than those contemplated in or
created in connection with the Credit Documents) upon or with respect to its
properties.
6.6 Consents.
Except for consents, approvals and authorizations which have been obtained,
no consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party in
respect of any Credit Party is required in connection with the execution,
delivery or performance of this Credit Agreement or any of the other Credit
Documents by such Credit Party.
6.7 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
59
6.8 No Default.
No Credit Party, nor any of its Subsidiaries, 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 would have or be reasonably
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred or exists except as previously disclosed in writing to the Lenders.
6.9 Ownership.
Each Credit Party and each of its Subsidiaries is the owner of, and has
good and marketable title to, all of its respective assets and none of such
assets is subject to any Lien other than Permitted Liens.
6.10 Indebtedness.
The Credit Parties and their Subsidiaries have no Indebtedness except (a)
as disclosed in the financial statements referenced in Section 6.1, (b) as set
forth on Schedule 6.10 and (c) as otherwise permitted by this Credit Agreement.
6.11 Litigation.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of the Credit Parties,
threatened against a Credit Party or any of their Subsidiaries which would have
or be reasonably expected to have a Material Adverse Effect.
6.12 Taxes.
Each of the Credit Parties and their Subsidiaries has filed, or caused to
be filed, all 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 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 against it or any of its Subsidiaries.
6.13 Compliance with Law.
Each Credit Party and each of its Subsidiaries 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 would not have or be reasonably
expected to have a Material Adverse Effect. No Requirement of Law would have or
be reasonably expected to have a Material Adverse Effect.
60
6.14 ERISA.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has occurred,
and, to the best knowledge of the Credit Parties, no event or condition has
occurred or exists as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section 412 of
the Code, whether or not waived, has occurred with respect to any Plan; (iii)
each Plan has been maintained, operated, and funded in compliance with its own
terms and in material compliance with the provisions of ERISA, the Code, and any
other applicable federal or state laws; and (iv) no lien in favor or 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" (within the
meaning of Section 4001 of ERISA) under each Single Employer Plan (determined
utilizing the actuarial assumptions used to fund such Plans), whether or not
vested, did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the fair market current value
as of such date of the assets of such Plan allocable to such accrued
liabilities.
(c) Neither a Credit Party, nor any of its Subsidiaries, nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit Parties, are
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither a Credit Party, nor any of
its Subsidiaries, 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 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 is reasonably likely to subject a
Credit Party or any of its Subsidiaries or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code,
or under any agreement or other instrument pursuant to which a Credit Party or
any of its Subsidiaries or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(e) The present value (determined using actuarial and other assumptions
which are reasonable with respect to the benefits provided and the employees
participating) of the liability of the Credit Parties and their Subsidiaries and
each ERISA Affiliate for post-retirement welfare benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA), net of all assets under all such Plans
61
allocable to such benefits, are reflected on the Financial Statements in
accordance with FASB 106.
(f) 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 with such sections.
6.15 Subsidiaries.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party. Information on Schedule 6.15 includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each class
of Capital Stock owned (directly or indirectly) by such Credit Party, and the
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 Subsidiaries is validly issued, fully paid
and non-assessable and is owned by each such Credit Party, directly or
indirectly, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in Schedule 6.15, neither any Credit Party (other than the Borrower) nor any
Subsidiary thereof 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 or 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.
Schedule 6.15 may be updated from time to time by the Borrower by giving written
notice thereof to the Administrative Agent.
6.16 Use of Proceeds.
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 7.9. No proceeds of the Loans hereunder have been or will
be used for the Acquisition of another Person unless the board of directors (or
other comparable governing body) or stockholders, as appropriate, of such Person
has approved such Acquisition.
6.17 Government Regulation.
(a) No part of the Letters of Credit or proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of purchasing or
carrying or trading in any securities. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No Indebtedness being
reduced or retired out of the proceeds of the Loans was or will be incurred for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Credit Parties and their
Subsidiaries. None of the transactions contemplated by the Credit Documents
(including,
62
without limitation, the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of (i) the Securities Act of 1933, as
amended, (ii) the Securities Exchange Act of 1934, as amended, (iii) regulations
issued pursuant to the Securities Act of 1933 or the Securities Exchange Act of
1934, or (iv) Regulations T, U or X.
(b) No Credit Party, nor any of its Subsidiaries, is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, no Credit
Party, nor any of its Subsidiaries, is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by an "investment company", or (ii) a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any Credit
Party or any of its Subsidiaries has control of a company (i.e. such Credit
Party or Subsidiary) and is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender), and the term "control of a company", have the respective meanings
assigned thereto in Regulation O.
6.18 Environmental Matters.
(a) Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(i) Each of the real property assets owned, operated or leased by a
Credit Party or any of its Subsidiaries (the "Real Properties") and all
operations at the Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Real Properties or the businesses operated by the Credit
Parties or any of their Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or Real Properties that could be
reasonably expected to give rise to liability under any applicable
Environmental Laws.
(ii) Neither a Credit Party nor any of its Subsidiaries has received
any written or oral notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding Hazardous Materials or compliance with
Environmental Laws with regard to any of the Real Properties or the
Businesses, nor does a Credit Party or any of its Subsidiaries have
knowledge or reason to believe that any such notice is being threatened.
(iii) Hazardous Materials 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 or with the permission of a Credit Party or any of its
Subsidiaries in a manner that could reasonably be expected to give rise to
liability under any applicable Environmental Law.
63
(iv) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of a Credit Party or any of its
Subsidiaries, threatened, under any Environmental Law to which a Credit
Party or any of its Subsidiaries 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 a Credit Party or
any of its Subsidiaries, the Real Properties or the Businesses.
(v) There has been no release or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or related to the
operations (including, without limitation, disposal) of a Credit Party or
any of its Subsidiaries in connection with the Real Properties or otherwise
in connection with the Businesses, in any amount reportable under the
federal Comprehensive Environmental Response, Compensation and Liability
Act or any analogous state law, except releases in compliance with any
Environmental Laws.
(b) The Credit Parties and their Subsidiaries have adopted procedures that
are designed to (i) ensure that each Credit Party and its Subsidiaries, any of
their operations and each of the properties owned or leased by each Credit Party
and/or its Subsidiaries remains in compliance with applicable Environmental Laws
and (ii) minimize any liabilities or potential liabilities that each Credit
Party and its Subsidiaries, any of their operations and each of the properties
owned or leased by each Credit Party and/or its Subsidiaries may have under
applicable Environmental Laws.
6.19 Intellectual Property.
Each Credit Party and each of its Subsidiaries owns, or has the legal right
to use, all patents, trademarks, tradenames, copyrights, technology, know-how
and processes (the "Intellectual Property") material to its business. Except as
set forth on Schedule 6.19, (a) no holding, decision or judgment has been
rendered by any Governmental Authority which would limit, cancel or question the
validity of any Intellectual Property and (b) no action or proceeding is pending
seeking to limit, cancel or question the validity of any Intellectual Property.
Set forth on Schedule 6.19 is a list of all Intellectual Property owned by each
Credit Party or that any Credit Party has the right to use. Except as provided
on Schedule 6.19, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any Credit
Party know of any such claim, and to the Credit Parties' knowledge the use of
such Intellectual Property by a Credit Party or any of their Subsidiaries does
not infringe on the rights of any Person. Schedule 6.19 may be updated from time
to time by the Borrower by giving written notice thereof to the Administrative
Agent.
6.20 Solvency.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
64
6.21 Investments.
All Investments of the Credit Parties and their Subsidiaries are Permitted
Investments.
6.22 Disclosure.
Neither this Credit Agreement nor any financial statements delivered to an
Agent or the Lenders nor any other document, certificate or statement furnished
to an Agent or the Lenders by or on behalf of a Credit Party or any of its
Subsidiaries in connection with the transactions contemplated hereby contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein or herein not
misleading.
6.23 Licenses, etc.
Each Credit Party has obtained and holds in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of its business as presently
conducted except where the failure to do so would not have or be reasonably
expected to have a Material Adverse Effect.
6.24 No Burdensome Restrictions.
No Credit Party, nor any of its Subsidiaries, 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, would have or be reasonably expected to have a
Material Adverse Effect.
6.25 Broker's Fees.
No Credit Party, nor any of its Subsidiaries, 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.
6.26 Labor Matters.
(a) Except as set forth on Schedule 6.26, (i) there are no collective
bargaining agreements, labor contracts or Multiemployer Plans covering the
employees of a Credit Party and (ii) no union or other labor organization is
seeking to organize, or be recognized as, a collective bargaining unit of
employees of any Credit Party. Schedule 6.26 may be updated from time to time by
the Borrower by giving written notice thereof to the Administrative Agent.
(b) There is no pending or threatened strike, walkout, work stoppage,
material unfair labor claim or material labor dispute against or affecting any
Credit Party or its employees except for any of the foregoing that, in the
aggregate, would not have or be reasonably expected to have a Material Adverse
Effect.
65
6.27 Location of Collateral.
Set forth on Schedule 6.27(a) is a list of all Real Properties (other than
showrooms) located in the United States with street address, county and state
where located. Set forth on Schedule 6.27(b) is a list of all locations in the
United States where any personal property of a Credit Party is located,
including county and state where located (other than personal property not
exceeding $100,000 in the aggregate at any one time). Set forth on Schedule
6.27(c) in the chief executive office and principal place of business of each
Credit Party. Schedule 6.27(a), Schedule 6.27(b) and Schedule 6.27(c) may be
updated from time to time by the Borrower by giving written notice thereof to
the Administrative Agent.
6.28 Year 2000 Compliance.
Each of the Credit Parties has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' businesses and operations
(including those affected by suppliers and vendors) that could be adversely
affected by the Year 2000 Problem, (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) except as would
not have or be reasonably expected to have a Material Adverse Effect, to date
implemented that plan in accordance with that timetable (as amended to the
Closing Date). Based on the foregoing, each Credit Party believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 Compliant"), except to the extent that a failure to do so
would not have or be reasonably expected to have a Material Adverse Effect.
6.29 Collateral Documents.
The Collateral Documents create valid security interests in, and Liens on,
the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
6.30 Insurance.
Set forth on Schedule 6.30 is the present insurance coverage of the Credit
Parties and their Subsidiaries (outlined as to carrier, policy number,
expiration date, type and amount). Schedule 6.30 shall be amended and updated by
the Credit Parties no less frequently than annually or upon the request of the
Administrative Agent.
6.31 Representations and Warranties from Merger Agreement.
As of the Initial Funding Date, the representations and warranties made in
Sections 2.1, 2.2, 2.3, 2.4, 2.5, 3.1 and 3.2 of the Merger Agreement by the
parties thereto are true and correct in all material respects.
66
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
7.1 Information Covenants.
The Borrower will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event
within 90 days after the close of each fiscal year of the Borrower, a
consolidated and consolidating balance sheet and income statement of the Credit
Parties and their Subsidiaries, as of the end of such fiscal year, together with
related consolidated and consolidating statements of operations and retained
earnings and of cash flows for such fiscal year, setting forth in comparative
form consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and audited
(with respect to consolidated financial statements only) by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and the Required Lenders 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 in any
manner.
(b) Quarterly Financial Statements. As soon as available, and in any event
within 45 days after the close of each fiscal quarter of the Borrower (other
than the fourth fiscal quarter) a consolidated and consolidating balance sheet
and income statement of the Credit Parties and their Subsidiaries, as of the end
of such fiscal quarter, together with related consolidated and consolidating
statements of operations and retained earnings and of cash flows for such fiscal
quarter in each case setting forth in comparative form consolidated and
consolidating 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 Administrative Agent and the Required
Lenders, and accompanied by a certificate of the chief financial officer of the
Borrower to the effect that such quarterly financial statements fairly present
in all material respects the financial condition of the Credit Parties and their
Subsidiaries and have been prepared in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate of
the chief financial 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,
(ii) stating whether any dividends were paid or redemptions made during the most
recent fiscal quarter and if any dividends were paid or redemptions made showing
compliance with the terms of Section 8.7, as applicable (including calculations
as necessary), (iii) stating whether any
67
redemptions or repurchases were made with respect to the Subordinated Debt
during the most recent fiscal quarter and if any redemptions or repurchases were
made with respect to the Subordinated Debt showing compliance with the terms of
Section 8.10 (including calculations as necessary), (iv) 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 Borrower proposes
to take with respect thereto and (v) containing a calculation demonstrating that
(after giving effect to any Permitted Acquisition) the Credit Parties are in
compliance, on a Pro Forma basis, with each of the financial covenants set forth
in Section 7.11 as of the end of the applicable fiscal period.
(d) Annual Business Plan and Budgets. Within 60 days subsequent to the end
of each fiscal year of the Borrower, beginning with the fiscal year ending
December 31, 1999, an annual business plan and budget of the Credit Parties and
their Subsidiaries on a consolidated basis containing, among other things, pro
forma financial statements for the next fiscal year.
(e) Accountant's Certificate. Within the period for delivery of the annual
financial statements provided in Section 7.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Credit Agreement 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
no such certificate shall be required if the Borrower has used its best efforts
to obtain same and such accountants are unwilling to provide such a certificate
and other independent certified public accountants of recognized national
standing are unwilling to provide such a certificate.
(f) Asset Dispositions. Within 90 days after the end of each fiscal year of
the Borrower, the Borrower shall deliver a certificate containing information
reasonably requested by the Administrative Agent regarding (i) the Net Cash
Proceeds of any Asset Dispositions that were made during the prior fiscal year
and (ii) sales of assets permitted by Sections 8.5(h), (i) and (j) and the
Eligible Assets reinvested in by the Credit Parties using the proceeds from such
sale of assets permitted by Section 8.5(j).
(g) Auditor's Reports. Promptly upon receipt thereof, a copy of any
"management letter" submitted by independent accountants to a Credit Party or
any of its Subsidiaries in connection with any annual, interim or special audit
of the books of a Credit Party or any of its Subsidiaries.
(h) Reports. Promptly upon transmission or receipt thereof, (a) copies of
any filings and registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as a Credit Party or any of
its Subsidiaries shall send to its shareholders generally or to a holder of (x)
the Subordinated Debt in its capacity as a holder or (y) Additional Subordinated
Debt in its capacity as a holder and (b) upon the written request of the
Administrative 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.
68
(i) Notices. Upon a Credit Party obtaining knowledge thereof, such Credit
Party will give written notice to the Administrative Agent immediately of (a)
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
Borrower proposes to take with respect thereto, and (b) the occurrence of any of
the following with respect to a Credit Party or any of its Subsidiaries (i) the
pendency or commencement of any litigation, arbitral or governmental proceeding
against a Credit Party or any of its Subsidiaries which if adversely determined
would have or be reasonably expected to have a Material Adverse Effect, or (ii)
the institution of any proceedings against a Credit Party or any of its
Subsidiaries 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 would have or be reasonably expected
to have a Material Adverse Effect.
(j) ERISA. Upon a Credit Party or any ERISA Affiliate obtaining knowledge
thereof, the Borrower will give written notice to the Administrative Agent and
each of the Lenders 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, a Termination Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed in ERISA
or otherwise of any withdrawal liability assessed against a Credit Party or any
of its 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 Credit Party or any of its
Subsidiaries or ERISA Affiliates 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 would have or be reasonably expected to have a Material
Adverse Effect; together, with a description of any such event or condition or a
copy of any such notice and a statement by the principal financial officer of
the Credit Party 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 Administrative Agent and each
of the Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each "plan
year" (within the meaning of Section 3(39) of ERISA).
(k) Environmental.
(i) Subsequent to a notice from any Governmental Authority where the
subject matter of such notice would reasonably cause concern or during the
existence of an Event of Default, and upon the written request of the
Administrative Agent, the Credit Parties will furnish or cause to be
furnished to the Administrative Agent, at the Credit Parties' expense, a
report of an environmental assessment of reasonable scope, form and depth,
including, where specifically recommended by a consultant, invasive soil or
groundwater sampling, by
69
a consultant reasonably acceptable to the Administrative Agent addressing
the subject of such notice or, if during the existence of an Event of
Default, regarding any release or threat of release of Hazardous Materials
on any real property owned, leased or operated by a Credit Party and the
compliance by the Credit Parties with Environmental Laws. If the Credit
Parties fail to deliver such an environmental assessment within sixty (60)
days after receipt of such written request, then the Administrative Agent
may arrange for same, and the Credit Parties hereby grant to the
Administrative Agent and its representatives access to the Real Properties
and a license of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for by the
Administrative Agent pursuant to this provision will be payable by the
Credit Parties on demand and added to the obligations secured by the
Collateral Documents.
(ii) Each Credit Party will conduct and complete all investigations,
studies, sampling and testing and all remedial, removal and other actions
necessary to address all Hazardous Materials on, from, or affecting any
real property owned, leased or operated by such Credit Party to the extent
necessary to be in compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules and policies
and with the orders and directives of all Governmental Authorities
exercising jurisdiction over such real property to the extent any failure
would have or be reasonably expected to have a Material Adverse Effect.
(l) Quarterly Report. At the time of delivery of the financial statements
provided for in Sections 7.1(a) and 7.1(b), the Borrower shall deliver to the
Administrative Agent a report with respect to the most recent fiscal quarter (i)
describing any collective bargaining agreements, labor contracts or
Multiemployer Plans covering the employees of a Credit Party entered into or
created during such fiscal quarter and (ii) listing all unions or other labor
organizations seeking to organize, or be recognized as, a collective bargaining
unit of employees of any Credit Party.
(m) Other Information. With reasonable promptness upon any such request,
such other information regarding the business, properties or financial condition
of the Credit Parties and their Subsidiaries as the Administrative Agent may
reasonably request.
7.2 Preservation of Existence and Franchises.
Each of the Credit Parties will, and will cause each of its Subsidiaries
to, do all things necessary to preserve and keep in full force and effect its
existence, rights, franchises and authority except as permitted by Section 8.4
or except (with respect to rights, franchises and authority only) where the
failure to do so would not have or be reasonably expected to have a Material
Adverse Effect.
7.3 Books and Records.
Each of the Credit Parties 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).
70
7.4 Compliance with Law.
Each of the Credit Parties 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 (including, without limitation, Environmental Laws) if noncompliance
with any such law, rule, regulation, order or restriction would have or be
reasonably expected to have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
Each of the Credit Parties will, and will cause its Subsidiaries to, pay,
settle or discharge (a) all 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 a Credit Party or any of its Subsidiaries shall not be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which (i) 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 (A) could give rise to an immediate right
to foreclose on a Lien securing such amounts or (B) would have or be reasonably
expected to have a Material Adverse Effect or (ii) if the aggregate amount of
such unpaid tax, assessment, charge, levy, claim or Indebtedness does not exceed
$5,000,000 (taking into account applicable insurance or indemnities to the
extent the provider of such insurance or indemnity has the financial ability to
support its obligations with respect thereto and is not disputing same).
7.6 Insurance.
(a) Each of the Credit Parties 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. All liability policies shall
have the Administrative Agent, on behalf of the Lenders, as an additional
insured and all casualty policies shall have the Administrative Agent, on behalf
of the Lenders, as loss payee.
(b) In the event there occurs any material loss, damage to or destruction
of the Collateral of any Credit Party or any part thereof, such Credit Party
shall promptly give written notice thereof to the Administrative Agent generally
describing the nature and extent of such damage or destruction. Subsequent to
any loss, damage to or destruction of the Collateral of any Credit Party or any
part thereof, such Credit Party, whether or not the insurance proceeds, if any,
received on account of such damage or destruction shall be sufficient for that
purpose, at such Credit Party's cost and expense, will promptly repair or
replace the Collateral of such Credit Party so lost, damaged or destroyed;
provided, however, that such Credit Party need not repair or replace the
Collateral of such Credit Party so lost, damaged or destroyed to the extent the
failure to make such
71
repair or replacement (a) is desirable to the proper conduct of the business of
such Credit Party in the ordinary course and otherwise is in the best interest
of such Credit Party and (b) would not materially impair the rights and benefits
of the Administrative Agent or the Lenders under this Credit Agreement or any
other Credit Document.
(c) The Administrative Agent is authorized, but not obligated, as the
attorney-in-fact of each of the Credit Parties and for the benefit of the
Lenders, upon the occurrence and during the continuance of an Event of Default,
without the consent of the applicable Credit Party, (i) to adjust and compromise
proceeds payable under such insurance policies, (ii) to collect, receive and
give receipts for such insurance proceeds in the name of such Credit Party, the
Administrative Agent and the Lenders and (iii) to endorse such Credit Party's
name upon any instrument in payment thereof.
(d) In the event a Credit Party shall receive any insurance proceeds, as a
result of any loss, damage or destruction, in a net amount in excess of
$1,000,000, such Credit Party will immediately pay over such proceeds to the
Collateral Agent as cash collateral for the Credit Party Obligations. The
Collateral Agent agrees to release such insurance proceeds to such Credit Party
for replacement or restoration of the portion of the Collateral of such Credit
Party lost, damaged or destroyed if (A) within 120 days from the date the
Collateral Agent receives such insurance proceeds, the Collateral Agent has
received written application for such release from such Credit Party together
with evidence reasonably satisfactory to it that the Collateral lost, damaged or
destroyed has been or will be replaced or restored to its condition (or by
Collateral having a value at least equal to the condition of the asset subject
to the loss, damage or destruction) immediately prior to the loss, destruction
or other event giving rise to the payment of such insurance proceeds and (B) on
the date of such release no Default or Event of Default exists. If the
conditions in the preceding sentence are not met, the Collateral Agent shall, on
the first Business Day subsequent to the date 120 days after it received such
insurance proceeds, apply such insurance proceeds as a mandatory prepayment of
the Credit Party Obligations for application in accordance with the terms of
Section 3.3(b)(ii) and Section 3.3(c). All insurance proceeds shall be subject
to the security interest of the Lenders under the Collateral Documents.
7.7 Maintenance of Property.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its properties and equipment in good repair, working order
and condition, normal wear and tear 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 of the Credit Parties will, and will cause its Subsidiaries to,
perform in all respects all of its obligations under the terms of all
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound unless the failure to do so would
not have or be reasonably expected to have a Material Adverse Effect.
72
7.9 Use of Proceeds.
The Borrower will use the proceeds of the Loans solely (a) to finance the
purchase of approximately 17.9 million shares of common stock of the Borrower at
a price not to exceed $28.00 per share (exclusive of interest, if payable
pursuant to the Merger Agreement), (b) to refinance all amounts outstanding
under the Prior Credit Agreement (the "Refinancing"), (c) to pay all fees
(including any consent fees owing to the holders of the Subordinated Debt),
expenses and premiums incurred in connection with the Merger and the Refinancing
in an amount not to exceed $33 million and (d) for working capital, Capital
Expenditures and general corporate purposes. The Borrower will use the Letters
of Credit solely for the purposes set forth in Section 2.2(a).
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours the Credit Parties
will, and will cause their Subsidiaries to, permit, subject to the provisions of
Section 11.16, representatives appointed by the Administrative Agent, including,
without limitation, independent accountants, agents, attorneys and appraisers to
visit and inspect each Credit Party's (or its Subsidiary's) property, including
its books and records, its accounts receivable and inventory, its facilities and
its 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 Administrative 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 the Credit Parties
and their Subsidiaries. The Credit Parties agree that the Collateral Agent and
its representatives may conduct an annual audit of the Collateral at the expense
of the Borrower; provided that if an audit is performed at a time when no Event
of Default shall exist, the Borrower shall not be required to pay more than
$15,000 of expenses of the Collateral Agent in connection with such audit.
7.11 Financial Covenants.
(a) Leverage Ratio. The Leverage Ratio, as of the end of each fiscal
quarter of the Borrower during the periods set forth below, shall be less than
or equal to:
(i) From the Initial Funding Date to and including June 30, 2001, 4.0
to 1.0; and
(ii) From July 1, 2001 and thereafter, 3.5 to 1.0.
Notwithstanding the above, if a Release of Collateral Event occurs, and the
Borrower exercises its option to release Collateral pursuant to Section 11.17,
then, from that date forward, the Leverage Ratio, as of the end of each fiscal
quarter of the Borrower thereafter, shall be less than or equal to 3.0 to 1.0.
73
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the end of
each fiscal quarter of the Borrower during the periods set forth below, shall be
greater than or equal to:
(i) From the Initial Funding Date to and including June 30, 2001, 2.5
to 1.0; and
(ii) From July 1, 2001 and thereafter, 3.0 to 1.0.
7.12 Collateral.
Unless a Release of Collateral Event has occurred and the Borrower has
exercised its rights under Section 11.17, if, subsequent to the Closing Date, a
Credit Party shall (a) acquire or lease any real property (other than showroom
leases) or (b) acquire any intellectual property, securities, instruments,
chattel paper or other personal property required to be delivered to the
Collateral Agent as Collateral hereunder or under any of the Collateral
Documents, the Borrower shall promptly (and in any event within three (3)
Business Days) after any senior executive officer of the Borrower acquires
knowledge of same notify the Administrative Agent of same. Each Credit Party
shall take such action (including, but not limited to, the actions set forth in
Sections 5.1(e) and (f)), as requested by the Administrative Agent and at its
own expense, to ensure that the Collateral Agent has a first priority perfected
Lien in all owned real property (and in such leased real property (other than
leased real property for sales offices or showrooms) as reasonably requested by
the Administrative Agent or the Required Lenders) and all personal property of
the Credit Parties (whether now owned or hereafter acquired), subject only to
Permitted Liens; provided, however, that nothing in this Section 7.12 shall
require any Credit Party to take any action which would require the creation of
any Lien that would result in a breach of any agreement creating or evidencing
such Collateral so long as such agreement was not entered into with the intent
of avoiding the requirements of this Section 7.12 or 8.13. Each Credit Party
shall adhere to the covenants regarding the location of personal property as set
forth in the Security Agreement.
7.13 Additional Credit Parties.
At the time any Person becomes a Subsidiary of a Credit Party, the Borrower
shall so notify the Administrative Agent and promptly thereafter (but in any
event within 45 days after the date thereof) shall (a) cause such Person (if it
is a Domestic Subsidiary) to execute a Joinder Agreement in substantially the
same form as Exhibit 7.13, (b) unless a Release of Collateral Event has occurred
and the Borrower has exercised its rights under Section 11.17, (i) cause all of
the Capital Stock of such Person (if such Person is a Domestic Subsidiary) or
65% of the Capital Stock of such Person (if such Person is a Foreign Subsidiary
owned by a Credit Party) to be delivered to the Collateral Agent (together with
undated stock powers signed in blank) and pledged to the Collateral Agent
pursuant to an appropriate pledge agreement in substantially the form of the
Pledge Agreement and otherwise in a form acceptable to the Collateral Agent,
(ii) if such Person is a Domestic Subsidiary, pledge all of its assets to the
Lenders pursuant to a security agreement in substantially the form of the
Security Agreement and otherwise in a form acceptable to the Collateral Agent,
(iii) if such Person is a Domestic Subsidiary and has any Subsidiaries, (A)
deliver all of the Capital Stock of such Domestic Subsidiaries and 65% of the
Capital Stock of such direct Foreign Subsidiaries (together with undated stock
powers signed in blank) to the Collateral Agent and (B) execute a
74
pledge agreement in substantially the form of the Pledge Agreement and otherwise
in a form acceptable to the Collateral Agent, (iv) if such Person is a Domestic
Subsidiary and owns or leases any real property in the United States of America,
execute any and all necessary mortgages, deeds of trust, deeds to secure debt,
collateral assignments of leaseholds or other appropriate real estate collateral
documentation in a form substantially similar to the Mortgages with appropriate
covenants as necessary (provided that if a leased property is solely for use as
a sales office or showroom it shall not be required to be mortgaged) and (v)
deliver such other documentation as the Collateral Agent may reasonably request
in connection with the foregoing (to the extent any such documentation was
required to be delivered to the Collateral Agent pursuant to Section 5.1 on or
before the Initial Funding Date), including, without limitation, appropriate
UCC-1 financing statements, real estate title insurance policies, environmental
reports and landlord waivers, and (c) cause such Person to deliver certified
resolutions and other organizational and authorizing documents of such Person
and 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); it being understood that all of the
documentation, agreements, instruments, certificates and opinions to be
delivered pursuant to (a), (b) and (c) above shall be in form, content and scope
reasonably satisfactory to the Collateral Agent. Notwithstanding anything in
this Section 7.13 to the contrary, no Credit Party shall be required to (x) take
any action which would violate any Requirement of Law or (y) xxxxx x Xxxx on any
asset that is subject to a Permitted Lien if the granting of such Lien would
violate the agreement creating or evidencing such Permitted Lien, so long as
such agreement was not entered into with the intent of avoiding the requirements
of this Section 7.13.
7.14 Year 2000 Compliance.
The Credit Parties will promptly notify the Administrative Agent in the
event any Credit Party discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant,
except to the extent that such failure would not have or be reasonably expected
to have a Material Adverse Effect.
7.15 Third Party Consents.
The Borrower shall, within 60 days subsequent to the Closing Date, use its
best efforts to deliver to the Administrative Agent (a) from landlords of real
property, a landlord waiver, in form and substance satisfactory to the
Administrative Agent, for each leasehold Real Property set forth on Schedule
6.27(a) (other than showroom leases) of the Credit Parties and (b) such other
estoppel letters, consents and waivers from warehousemen and bailees as may be
reasonably requested by the Administrative Agent, which estoppel letters,
consents and waivers shall be in form and substance reasonably satisfactory to
the Administrative Agent.
7.16 Interest Rate Protection Agreements.
The Borrower shall, within 90 days subsequent to the Initial Funding Date,
enter into and maintain interest rate protection agreements, in form and
substance acceptable to the
75
Administrative Agent, for a period expiring no earlier than three years from the
date such interest rate protection agreements are purchased, and in a notional
amount of at least $135,000,000.
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
8.1 Indebtedness.
No Credit Party will, nor will it permit any of its Subsidiaries 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 existing as of the Closing Date (other than the
Subordinated Debt) as referenced in Section 6.10 and (including renewals,
refinancings or extensions of such Indebtedness in a principal amount not in
excess of that outstanding as of the date of such renewal, refinancing or
extension);
(c) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business including, to the extent
not current, accounts payable and accrued expenses that are subject to bona fide
dispute;
(d) Indebtedness owing from (i) one Credit Party to another Credit Party
and (ii) a Foreign Subsidiary to another Foreign Subsidiary;
(e) purchase money Indebtedness (including Capital Leases) or Synthetic
Leases incurred by the Borrower or any of its Subsidiaries to finance the
purchase of fixed assets; provided that (i) the aggregate total of all such
Indebtedness (including any Indebtedness referred to in subsection (b) above)
for all such Persons, together with the aggregate amount of any Indebtedness
outstanding under subsection (f) below, shall not exceed an aggregate principal
amount of $25,000,000 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;
(f) Indebtedness assumed in connection with a Permitted Acquisition
(including renewals, refinancings or extensions of such Indebtedness in a
principal amount not in excess of that outstanding as of the date of such
renewal, refinancing or extension); so long as (i) such Indebtedness is not
incurred in anticipation of or in connection with such Permitted Acquisition and
(ii) the aggregate total of all such Indebtedness, together with the aggregate
amount of any
76
Indebtedness outstanding under subsection (e) above, shall not exceed an
aggregate principal amount of $25,000,000 at any one time outstanding;
(g) obligations under Hedging Agreements entered into in order to manage
existing or anticipated interest rate or exchange rate risks and not for
speculative purposes;
(h) Indebtedness in respect of performance, surety or appeal bonds in the
ordinary course of business;
(i) Indebtedness arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations (or from guarantees or
letters of credit, surety bonds or performance bonds securing any obligations of
a Credit Party or any of its Subsidiaries pursuant to such agreements), in any
case incurred in connection with the disposition of any business, assets or
Subsidiary of a Credit Party, to the extent otherwise permitted under this
Credit Agreement, (other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition), in a principal amount not to exceed the
gross proceeds actually received by such Credit Party or any of its Subsidiaries
in connection with such disposition;
(j) additional unsecured subordinated Indebtedness of the Borrower,
provided that (a) such Indebtedness shall be deeply subordinated to the Loans
pursuant to subordination terms satisfactory to the Required Lenders, (b) such
Indebtedness shall not exceed $50,000,000 in the aggregate principal amount at
any time outstanding, (c) no part of the principal amount of such Indebtedness
shall have a maturity date earlier than the Maturity Date, (d) the Borrower
shall not be required to make any payments of principal or interest with respect
to such Indebtedness other than payments of interest in kind and (e) such
Indebtedness is provided by Warburg (collectively, the "Additional Subordinated
Debt");
(k) the Subordinated Debt; and
(l) additional unsecured Indebtedness if after giving effect to such
Indebtedness on a Pro Forma basis the Credit Parties are in compliance with the
financial covenants contained in Section 7.11 and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief financial
officer setting forth in reasonable detail the computations necessary to make
such determinations of the financial covenants (including renewals, refinancings
or extensions of such Indebtedness in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or extension).
8.2 Liens.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
77
8.3 Nature of Business.
No Credit Party will, nor will it permit its Subsidiaries to, alter the
character of its business from that, or substantially similar to that, conducted
as of the Closing Date or engage in any business other than the business
conducted as of the Closing Date with reasonable extensions and expansions of
such business.
8.4 Consolidation and Merger.
No Credit Party will, nor will it permit its Subsidiaries to, enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); provided that notwithstanding
the foregoing provisions of this Section 8.4, the following actions may be taken
if (a) the Administrative Agent is given prior written notice of such action,
and the Credit Parties execute and deliver such documents, instruments,
certificates and opinions as the Administrative Agent may request, including,
without limitation, those necessary in order to maintain the perfection and
priority of the Liens on the assets of the Credit Parties and (b) after giving
effect thereto no Default or Event of Default exists:
(i) any Credit Party may be merged or consolidated with or into
another Credit Party; provided that if the transaction is between the
Borrower and another Credit Party the Borrower must be the continuing or
surviving entity; and
(ii) (A) any Foreign Subsidiary may merge or consolidate with any
other Foreign Subsidiary and (B) if a Credit Party is the surviving entity,
any Foreign Subsidiary may merge with any Credit Party.
8.5 Sale or Lease of Assets.
No Credit Party will, nor will it permit any of its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, leasehold interests, equipment and securities other than (a) any
inventory or other assets sold, leased, licensed or disposed of (including
through commercial accommodations and going out of business sales) in the
ordinary course of business, (b) obsolete, idle or worn-out assets no longer
used or useful in its business, (c) subject to Section 7.12 and the location of
Collateral provisions set forth in the Credit Documents, the sale, lease or
transfer or other disposal by a Credit Party of any or all of its assets to
another Credit Party so long as (i) the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Administrative Agent may request in order to maintain the perfection and
priority of the Administrative Agent's liens on the assets of the Credit Parties
as required by Section 7.12 and 7.13 and (ii) after giving effect to such
transaction, no Default or Event of Default exists, (d) the sale of the assets
or Capital Stock of any Foreign Subsidiary to a Person other than a Subsidiary
of the Borrower so long as (i) the Borrower shall give the Administrative Agent
at least 30 days' prior written notice of such sale, which notice shall, among
other things specify the aggregate purchase price therefore, (ii) all non-cash
consideration received in connection with such sale must be pledged to the
Collateral Agent, for the benefit of the Lenders,
78
pursuant to documentation reasonably requested by the Collateral Agent, and any
proceeds received from such non-cash consideration shall be paid to the Lenders
when received in accordance with Section 3.3, and (iii) the cash proceeds
received in such sale are paid to the Lenders in accordance with Section 3.3,
(e) the sale or other dispositions of Cash Equivalents for fair market value,
(f) the issuance of Capital Stock, (g) the transfer of assets which constitute a
Permitted Investment, (h) transfers permitted by Section 8.12, (i) other sales
of assets, including Collateral, not to exceed $5,000,000, in the aggregate,
during any fiscal year (provided that no Domestic Subsidiary may sell less than
all of the Capital Stock of any one of its Subsidiaries) or (j) other sales of
assets, in addition to those permitted by the other subsections of this Section
8.5, provided that (i) the transfer is for fair market value, (ii) at the time
of transfer no Default or Event of Default exists (except as would be cured
through the application of the Net Cash Proceeds of such Asset Disposition),
(iii) as a result of such transfer, no Material Adverse Effect would occur or be
reasonably expected to occur, (iv) if the transfer involves the stock of a
Domestic Subsidiary, the transfer constitutes all of the Capital Stock of such
Domestic Subsidiary, (v) the proceeds from such transfer are, within 12 months
from the date of such transfer, (A) applied as a mandatory prepayment pursuant
to Section 3.3(b)(ii) or (B) reinvested by the Credit Parties in Eligible Assets
and (vi) such transfers do not exceed, in the aggregate, $25,000,000, during any
fiscal year.
Upon a sale of assets or the sale or Capital Stock of a Subsidiary of a
Credit Party permitted by this Section 8.5, the Collateral Agent shall deliver
to the Borrower, upon the Borrower's request and at the Borrower's expense, such
documentation as is reasonably necessary to evidence the release of the
Collateral Agent's security interest in such assets or stock, including, without
limitation, amendments or terminations of UCC financing statements, the return
of stock certificates and the release of a Guarantor (as applicable) from its
obligations under the Credit Documents.
8.6 Advances, Investments and Loans.
No Credit Party will, nor will it permit any of its Subsidiaries to, make
any Investments except for Permitted Investments.
8.7 Restricted Payments.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, (a) declare or pay any dividends (except for
distributions by the Borrower of its Capital Stock which does not by its terms
mature or become redeemable at the option of the holder thereof) or make any
other distribution upon any shares of its Capital Stock of any class or (b)
purchase, redeem or otherwise acquire or retire or make any provisions for
redemption, acquisition or retirement of any shares of its Capital Stock of any
class or any warrants or options to purchase any such shares; provided that (i)
any Subsidiary of the Borrower may pay dividends to its parent or the Borrower,
(ii) the Borrower may (A) repurchase outstanding shares of Capital Stock of the
Borrower following the death, disability, retirement or termination of
employment of a member of Management or a consultant to a Credit Party or one of
its Subsidiaries (even if such member of Management or consultant is retained in
a consulting capacity after retirement or termination of employment) or (B) fund
amounts payable to participants or former participants in employee
79
benefit plans upon any termination of employment by such participants as
provided in the documents related thereto, in an aggregate amount (for both
clauses (A) and (B) above) not to exceed (x) $15,000,000 in any fiscal year and
(y) $30,000,000 during the term of the Credit Agreement so long as at the time
of repurchase or funding and after giving effect thereto, no Default or Event of
Default shall exist or be continuing, (iii) in addition to the amounts set forth
in clauses (i) and (ii) above, up to $20,000,000 may be used to pay dividends or
redeem Capital Stock during the term of the Credit Agreement so long as the time
of such dividend or redemption and after giving effect thereto, no Default or
Event of Default shall exist or be continuing and (iv) the Borrower may pay
dividends or repurchase or redeem its Capital Stock so long as (A) after giving
effect to such dividend or repurchase or redemption on a pro forma basis, as if
such dividend, repurchase or redemption had occurred on the first day of the
twelve month period ending on the last day of the Borrower's most recently
completed fiscal quarter, the Leverage Ratio is less than 2.5 to 1.0 and the
Borrower shall have delivered to the Administrative Agent a certificate of its
chief financial officer to such effect setting forth in reasonable detail the
computation necessary to make such determination of the Leverage Ratio and (B)
at the time of such dividend, repurchase or redemption and after giving effect
thereto, no Default or Event of Default shall exist or be continuing.
8.8 Transactions with Affiliates.
Except for (a) loans or advances to employees and officers of a Credit
Party or any of its Subsidiaries (to the extent otherwise permitted by Section
8.6), (b) fees, compensation or employee benefit arrangements paid to and
indemnity provided on behalf of directors, officers or employees of the Borrower
or any of its Subsidiaries in the ordinary course of business, (c) any
employment agreement (including customary benefits thereunder) that is entered
into in the ordinary course of business, (d) any dividend or other payment that
is permitted by Section 8.7 and (e) any transactions between or among a Credit
Party and any of its Subsidiaries (to the extent otherwise permitted by this
Credit Agreement), no Credit Party will, nor will it permit its Subsidiaries to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder, Subsidiary
or Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate.
8.9 Fiscal Year; Organizational Documents.
No Credit Party will, nor will it permit any of its Subsidiaries to, (a)
change its fiscal year without prior written notice to the Administrative Agent
(provided that no such change may occur if such change materially affects the
Lenders ability to read and interpret the financial statements delivered
pursuant to Section 7.1 or calculate the financial covenants in Section 7.11 or
(b) change its articles or certificate of incorporation or its bylaws if such
change would have or be reasonably expected to have a Material Adverse Effect.
80
8.10 Subordinated Debt.
No Credit Party will (a) make or offer to make any principal payments with
respect to the Subordinated Debt or Additional Subordinated Debt, (b) redeem or
offer to redeem any of the Subordinated Debt or any of the Additional
Subordinated Debt, or (c) deposit any funds intended to discharge or defease any
or all of the Subordinated Debt or any or all of the Additional Subordinated
Debt; provided, however, the Borrower may redeem or repurchase all or any
portion of the Subordinated Debt; as long as (A) after giving effect to such
repurchase or redemption (including, without limitation, any accrued interest,
premiums or penalties associated therewith) on a Pro Forma basis, as if such
repurchase or redemption had occurred on the first day of the twelve month
period ending on the last day of the Borrower's most recently completed fiscal
quarter, the Credit Parties are in compliance with all the financial covenants
set forth in Section 7.11 and the Borrower shall have delivered to the
Administrative Agent a certificate of its chief financial officer to such effect
setting forth in reasonable detail the computation necessary to make such
determination of such financial covenants and (B) at the time of such repurchase
or redemption and after giving effect thereto, no Default or Event of Default
shall exist or be continuing. Neither the Subordinated Debt nor the Additional
Subordinated Debt may be amended or modified in any manner that would adversely
affect the Lenders (as determined by the Required Lenders in their sole
discretion) without the prior written consent of the Required Lenders.
8.11 Limitations.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to (a) pay dividends or make any
other distribution on any of such Person's Capital Stock, (b) pay any
Indebtedness owed to the Borrower or any other Credit Party, (c) make loans or
advances to any Credit Party or (d) transfer any of its property to any Credit
Party, except for encumbrances or restrictions existing under or by reason of
(i) customary non-assignment or net worth provisions in any lease governing a
leasehold interest or customary provisions in documents evidencing the
transactions permitted by Section 8.1(e), (ii) any agreement or other instrument
of a Person existing at the time it becomes a Subsidiary of a Credit Party;
provided that such encumbrance or restriction is not applicable to any other
Person, or any property of any other Person, other than such Person becoming a
Subsidiary of a Credit Party and was not entered into in contemplation of such
Person becoming a Subsidiary of such Credit Party, (iii) this Credit Agreement
and the other Credit Documents, (iv) the Subordinated Debt, (v) the Additional
Subordinated Debt, (vi) Requirements of Law, (vii) customary restrictions with
respect to a Subsidiary of a Credit Party pursuant to an agreement that has been
entered into for the sale or other disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary (to the extent such sale is
permitted by Section 8.5), (viii) any agreement of a Foreign Subsidiary of a
Credit Party evidencing the unsecured Indebtedness of such Foreign Subsidiary
permitted under Section 8.1(l) and (ix) any agreement of the Borrower evidencing
the unsecured Indebtedness of the Borrower permitted under Section 8.1(j);
provided that such encumbrance or restriction is not applicable to any Person
other than the Borrower.
81
8.12 Sale Leasebacks.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any lease of any property (whether real or personal
or mixed), whether now owned or hereafter acquired, (a) which such Credit Party
or Subsidiary has sold or transferred or is to sell or transfer to any other
Person other than a Credit Party or (b) which such Credit Party or Subsidiary
intends to use for substantially the same purpose as any other property which
has been sold or is to be sold or transferred by the Borrower or Subsidiary to
any Person in connection with such lease; provided, however, that the Credit
Parties may enter into such transactions with respect to personal property, in
an aggregate amount of up to $30,000,000 in sales proceeds during the term of
this Credit Agreement, if (i) after giving pro forma effect to any such
transaction the Borrower shall be in compliance with all other provisions of
this Credit Agreement, including Section 8.1 and Section 8.2, (ii) the gross
cash proceeds of any such transaction are at least equal to the fair market
value of such property (as determined by the Board of Directors whose
determination shall be conclusive if made in good faith) and (iii) the Net Cash
Proceeds are forwarded to the Administrative Agent as set forth in Section
3.3(b)(ii) to the extent required therein.
8.13 Negative Pledges.
Other than as set forth in Section 4.12 of the Indenture, none of the
Credit Parties will, nor will it permit any of its Subsidiaries to, enter into,
assume or become subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation; provided, however,
(a) the Indebtedness incurred or assumed, as applicable, pursuant to Sections
8.1(e) and (f) may restrict the creation of any additional Liens on the assets
securing such Indebtedness and (b) Indebtedness incurred pursuant to Section
8.1(l) may restrict the creation of any additional Liens other than any Liens
granted by the Credit Parties to the Collateral Agent for the benefit of the
Lenders pursuant to the Credit Documents before or after the Release Collateral
Event.
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall:
(i) default in the payment when due of any principal of any of the
Loans or of any reimbursement obligation arising from drawings under
Letters of Credit; or
82
(ii) default, and such default shall continue for three or more
Business Days, in the payment when due of any interest on the Loans, or of
any fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(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 made or deemed to have been made.
(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, 7.4, 7.6, 7.9, 7.11, 7.12, 7.13,
7.16, 8.1, 8.3, 8.4, 8.7 or 8.10; or
(ii) default in the due performance or observance by it of any term,
covenant or agreement contained in Sections 7.1, 7.5, 7.8, 8.2, 8.5, 8.6,
8.8, 8.9, 8.11, 8.12 or 8.13 and such default shall continue unremedied for
a period of five Business Days after the earlier of an executive officer of
a Credit Party becoming aware of such default or notice thereof given by
the Administrative Agent; or
(iii) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in subsections (a), (b)
or (c)(i) or (ii) of this Section 9.1) contained in this Credit Agreement
and such default shall continue unremedied for a period of at least 30 days
after the earlier of an executive officer of a Credit Party becoming aware
of such default or notice thereof given by the Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in the due
performance or observance of any term, covenant or agreement in any of the other
Credit Documents 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 given by the Administrative
Agent, (ii) except pursuant to the terms thereof, any Credit Document shall fail
to be in full force and effect or any Credit Party shall so assert or (iii)
except pursuant to the terms thereof, any Credit Document shall fail to give the
Administrative Agent, the Collateral Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following with respect to
any Credit Party or any of their Subsidiaries (other than Insignificant
Subsidiaries): (i) a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of any Credit Party
or any of their Subsidiaries (other than Insignificant Subsidiaries) in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of any Credit Party or any
of their Subsidiaries (other than Insignificant Subsidiaries) or for any
substantial part of its property or ordering the winding up or liquidation
83
of its affairs; or (ii) an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect is commenced against
any Credit Party or any of their Subsidiaries (other than Insignificant
Subsidiaries) and such petition remains unstayed and in effect for a period of
60 consecutive days; or (iii) any Credit Party or any of their Subsidiaries
(other than Insignificant Subsidiaries) 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, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make any
general assignment for the benefit of creditors; or (iv) any Credit Party or any
of their Subsidiaries (other than Insignificant Subsidiaries) shall admit in
writing its inability to pay its debts generally as they become due or any
action shall be taken by such Person in furtherance of any of the aforesaid
purposes.
(f) Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under this Credit Agreement) of a Credit
Party or any of their Subsidiaries in an aggregate principal amount in excess of
$5,000,000, including, without limitation, the Subordinated Debt or the
Additional Subordinated Debt, (i) a Credit Party or one of its Subsidiaries
shall (A) default in any payment (beyond the applicable grace period with
respect thereto, if any) with respect to any such Indebtedness, or (B) default
(after giving effect to any applicable grace period) in the observance or
performance relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or other
event or condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required)
any such Indebtedness to become due prior to its stated maturity; (ii) any such
Indebtedness shall be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment prior to the stated maturity
thereof or by a prepayment from the proceeds of an Equity Issuance to the
holders of Subordinated Debt or Additional Subordinated Debt; or (iii) any such
Indebtedness shall mature and remain unpaid.
(g) Judgments. One or more judgments, orders, or decrees shall be entered
against any Credit Party or any of its Subsidiaries involving a liability of
$5,000,000 or more, in the aggregate, (to the extent not paid or covered by
insurance provided by a carrier who has acknowledged coverage) and such
judgments, orders or decrees (i) are the subject of any enforcement proceeding
commenced by any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day on which
such judgment, order or decree becomes final and unappealable or (B) 60 days.
(h) ERISA. The occurrence of any of the following events or conditions if
such occurrence would have or be reasonably expected to have a Material Adverse
Effect: (A) 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 any
Credit Party or any of their Subsidiaries or any ERISA Affiliate in favor of the
PBGC or a Plan; (B) a Termination Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the Agent, likely to
result in the
84
termination of such Plan for purposes of Title IV of ERISA; (C) a Termination
Event shall occur with respect to a Multiemployer Plan or Multiple Employer
Plan, which is, in the reasonable opinion of the Agent, likely to result in (i)
the termination of such Plan for purposes of Title IV of ERISA, or (ii) any
Credit Party or any of their Subsidiaries 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 (D) 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 any Credit Party or any
of their Subsidiaries 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 any Credit Party or any of their
Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability.
(i) Guaranties. The guaranty given by the Credit Parties hereunder or by
any Additional Credit Party hereafter or any provision thereof shall, except
pursuant to the terms thereof, cease to be in full force and effect, or any
guarantor thereunder or any Person acting by or on behalf of such guarantor
shall deny or disaffirm such Guarantor's obligations under such guaranty.
(j) Ownership. There shall occur a Change of Control.
(k) Subordinated Debt. (i) Any Governmental Authority with applicable
jurisdiction determines that the Lenders are not holders of Designated Senior
Indebtedness (as defined in the Indenture), or any similar provisions in the
Additional Subordinated Debt or (ii) the subordination provisions creating the
Subordinated Debt or the Additional Subordinated Debt shall, in whole or in
part, terminate, cease to be effective or cease to be legally valid, binding and
enforceable as to any holder of the Subordinated Debt or the Additional
Subordinated Debt.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required pursuant to Section 11.6),
the Administrative Agent (or the Collateral Agent, as applicable) shall, upon
the request and direction of the Required Lenders, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of
the Agents or any Lender to enforce its claims against the Credit Parties except
as otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. 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 a Credit Party to any of the Lenders
hereunder to be due whereupon the same shall be immediately due
85
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 Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of Default
under Section 9.1(e), it will immediately pay) to the Collateral Agent
additional cash, to be held by the Collateral 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(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent or any of the Lenders in connection with enforcing the
rights of the Lenders under the Credit Documents and any protective
advances made by the Administrative 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 Administrative Agent, the
Issuing Lender or any Lender;
THIRD, to the payment of all accrued interest payable to the Lenders
hereunder;
86
FOURTH, to the payment of the outstanding principal amount of the
Loans, to the payment or cash collateralization of the outstanding LOC
Obligations and to any principal amounts outstanding under Hedging
Agreements between a Credit Party and a Lender or an Affiliate of a Lender,
pro rata, as set forth below;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, LOC
Obligations and obligations under Hedging Agreements held by such Lender bears
to the aggregate then outstanding Loans, LOC Obligations and obligations under
Hedging Agreements) of amounts available to be applied pursuant to clauses
"FIRST", "THIRD," "FOURTH," and "FIFTH" above; and (c) to the extent that any
amounts available for distribution pursuant to clause "FOURTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Collateral Agent in a cash collateral account
and applied (x) first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (y) then, following the expiration of
all Letters of Credit, to all other obligations of the types described in
clauses "FOURTH" and "FIFTH" above in the manner provided in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
-----------------
10.1 Appointment; Authorization.
(a) Each Lender hereby designates and appoints Bank of America, N.A. as
Administrative Agent and as Collateral Agent, The Chase Manhattan Bank as
Syndication Agent, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated as Documentation Agent of such Lender to act as specified herein
and the other Credit Documents, and each such Lender hereby authorizes the
Agents, as the agents for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agents shall
not have any duties or responsibilities, except those expressly set forth herein
and therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Agents. The provisions of this Section (other
than Section 10.9) are solely for the
87
benefit of the Agents and the Lenders and none of the Credit Parties shall have
any rights as a third party beneficiary of the provisions hereof (other than
Section 10.9). In performing its functions and duties under this Credit
Agreement and the other Credit Documents, each Agent shall act solely as an
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation or relationship of agency or trust with or for any Credit Party.
(b) The Lenders irrevocably authorize the Collateral Agent, at the
Collateral Agent's option and in its discretion, to release any security
interest in or Lien on any Collateral granted to or held by the Collateral Agent
(i) upon termination of this Credit Agreement and the other Credit Documents,
termination of the Commitments and all Letters of Credit and payment in full of
all Credit Party Obligations, including all fees and indemnified costs and
expenses that are payable pursuant to the terms of the Credit Documents, (ii) if
such Collateral constitutes property sold or to be sold or disposed of as part
of or in connection with any disposition permitted pursuant to the terms of this
Credit Agreement and (iii) if approved by the Required Lenders or Lenders, as
applicable, pursuant to the terms of Section 11.6. Upon the request of the
Collateral Agent, the Lenders will confirm in writing the Collateral Agent's
authority to release particular types or items of Collateral pursuant to this
Section 10.1(b).
(c) The Lenders irrevocably authorize the Administrative Agent, at the
Administrative Agent's option and in its discretion, to release any Guarantor
from its obligations hereunder if (i) such Guarantor is no longer required to be
a Guarantor pursuant to the terms of this Credit Agreement or (ii) if approved
by the Required Lenders or Lenders, as applicable, pursuant to the terms of
Section 11.6. Upon the request of the Administrative Agent, the Lenders will
confirm in writing the Administrative Agent's authority to release a particular
Guarantor pursuant to this Section 10.1(c).
(d) The Chase Manhattan Bank, in is capacity as Syndication Agent, and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in its
capacity as Documentation Agent, shall have no duties or obligations whatsoever
under this Credit Agreement or any of the other Credit Documents.
10.2 Delegation of Duties.
An Agent may execute any of its duties hereunder or under the other Credit
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. An Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions.
Neither the Agents nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct) or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit
88
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by an
Agent under or in connection herewith or in connection with the other Credit
Documents, or enforceability or sufficiency therefor of any of the other Credit
Documents, or for any failure of any Credit Party to perform its obligations
hereunder or thereunder. The Agents shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by any Credit Party in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by an Agent to
the Lenders or by or on behalf of the Credit Parties to the Agents or any Lender
or be required to ascertain or inquire as to the performance or observance of
any of the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the Credit
Parties. The Agents are not trustees for the Lenders and owe no fiduciary duty
to the Lenders.
10.4 Reliance on Communications.
The Agents shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agents with reasonable care). The Agents may deem
and treat the Lenders as the owner of its interests hereunder for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent in accordance with Section
11.3(b). The Agents shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agents shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
An Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless such Agent has received
notice from a Lender or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the
Lenders.
89
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders.
10.6 Non-Reliance on Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Agents nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agents or any
affiliate thereof hereinafter taken, including any review of the affairs of any
Credit Party, shall be deemed to constitute any representation or warranty by
the Agents to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Credit Parties and made its own decision to make its Loans hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Credit Parties which may come
into the possession of the Agents or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitments (or if the
Commitments have expired or been terminated, in accordance with the respective
principal amounts of outstanding Loans and Participation Interest of the
Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following payment in full of the Credit Party Obligations) be imposed
on, incurred by or asserted against an Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by an Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of an Agent. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is
90
furnished; provided that no Agent shall be indemnified for any event caused by
its gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Credit Party Obligations and all other obligations
and amounts payable hereunder and under the other Credit Documents.
10.8 Agents in Their Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or any other Credit
Party as though such Agent were not an Agent hereunder. With respect to the
Loans made and Letters of Credit issued and all obligations owing to it, an
Agent shall have the same rights and powers under this Credit Agreement as any
Lender and may exercise the same as though they were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
10.9 Successor Agent.
Any Agent may, at any time, resign upon 20 days written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation, then the Borrower shall have the right to
appoint a successor Agent provided such successor is a Lender hereunder or a
commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$400,000,000. Upon the acceptance of any appointment as an Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as an
Agent, as appropriate, under this Credit Agreement and the other Credit
Documents and the provisions of this Section 10.9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was an Agent under
this Credit Agreement. If no successor Administrative Agent has accepted
appointment as Administrative Agent within sixty (60) days after the retiring
Administrative Agent's giving notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless become effective and the Lenders shall
perform all duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided for above. Likewise, if no successor Collateral Agent has accepted
appointment as Collateral Agent within sixty (60) days after the retiring
Collateral Agent's giving notice of resignation, the retiring Collateral Agent's
resignation shall nevertheless become effective and the Lenders shall perform
all duties of the Collateral Agent under the Collateral Documents until such
time, if any, as the Required Lenders appoint a successor Collateral Agent as
provided for above. Subject to the foregoing terms of this Section 10.9, there
shall at all times be a Person or Persons serving as Administrative Agent
hereunder and, so long as no Default or Event of Default shall have occurred and
be continuing, the appointment of any new Administrative Agent shall require the
consent of the Borrower (which consent shall not be unreasonably withheld).
91
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 (or on an invoice basis) 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 or telecopy numbers set forth
on Schedule 11.1, or at such other address as such party may specify by written
notice to the other parties hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuance of an Event of Default, each Lender is authorized at
any time and from time to time, without presentment, demand, protest or other
notice of any kind (all of which rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits (general or special)
and any other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of any Credit Party against
obligations and liabilities of such Credit Party to the Lenders hereunder, under
the Notes, the other Credit Documents or otherwise, irrespective of whether the
Administrative Agent or the Lenders shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. The Credit
Parties hereby agree that to the extent permitted by law any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section
11.3(c), 3.7 or 3.15 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder and
any such set-off shall reduce the amount owed by such Credit Party to the
Lender.
11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that none of the Credit Parties may assign or transfer
any of its interests and obligations in violation of Section 8.4 or 8.5 or
without the prior written consent of either the Required Lenders or the Lenders,
as the terms set forth in Section 11.6 may require; and 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 below in this
Section 11.3.
92
(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 $5,000,000 (or, if less, the remaining amount of the Commitment being
assigned by such Lender);
(iii) each such assignment by a Lender of any portion of its Revolving
Commitment and its Revolving Loans shall be accompanied by an assignment of
a constant, and not varying, percentage of all of such Lender's Term Loans,
and each such assignment by a Lender of any portion of its Term Loans shall
be accompanied by an assignment of a constant, and not varying, percentage
of all of such Lender's Revolving Commitment and its Revolving Loans; and
(iv) the parties to such assignment shall execute and deliver to the
Administrative Agent and, only with respect to any assignment of all or a
portion of the Revolving Committed Amount, the Issuing Lender for their
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 Administrative Agent and the Credit Parties shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If the assignee is not a United States person under Section
7701(a)(30) of the Code, it shall deliver to the Credit Parties and the
Administrative Agent certification as to exemption from deduction or withholding
of Taxes in accordance with Section 3.13.
(c) The Administrative 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 Administrative 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
93
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 Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
11.3(b), (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 3.9 through 3.14, inclusive, and the right of set-off contained in
Section 11.2, 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 decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Notes, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Notes, or extending its Commitment).
(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 a Credit Party or any
of their Subsidiaries 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 11.16.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of an 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 Agents 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 Agents or any Lender would otherwise
94
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 Agents or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
(a) The Credit Parties jointly and severally agree to: (a) pay on demand
all reasonable out-of-pocket costs and expenses of (i) the Agents in connection
with (A) the syndication, negotiation, preparation, execution and delivery and
administration of this Credit Agreement and the other Credit Documents and the
other documents and instruments referred to therein (including, without
limitation, the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, special
counsel to the Agents and the fees and expenses of counsel for the Agents in
connection with collateral or foreign issues but not the fees and expenses of
any other Lender's counsel), and (B) any amendment, waiver or consent relating
hereto and thereto including, but not limited to, any such amendments, waivers
or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (ii) the Agents and the Lenders in connection with (A) enforcement
of the Credit Documents and the documents and instruments referred to therein,
including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agents and each of the
Lenders, and (B) any bankruptcy or insolvency proceeding of a Credit Party or
any of its Subsidiaries and (b) indemnify each Agent and each Lender and their
respective affiliates, controlling persons, officers, directors, employees,
representatives and agents (each an "indemnitee") from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not any Agent or Lender or other indemnitee is a party thereto) related to
(i) the entering into and/or performance of any Credit Document or the use of
proceeds of any Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified), (ii) any Environmental
Claim (except to the extent such claim arises from the gross negligence or
willful misconduct of any indemnified party) and (iii) any claims for
Non-Excluded Taxes; provided that no indemnity or reimbursement shall be
required in respect of (a) any claims relating to the rights of a Lender as a
holder of the Subordinated Debt or (b) any claims relating to the obligations of
any indemnified party in any capacity other than as an Agent or a Lender.
(b) 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.
95
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 and signed by the Required Lenders and the Credit Parties; provided
that:
(a) no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender affected thereby,
(i) extend the final maturity of any Loan or the time of payment of
any reimbursement obligation, or any portion thereof, arising from drawings
under Letters of Credit, or extend or waive any Principal Amortization
Payment, or any portion thereof;
(ii) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase
in interest rates) thereon or fees hereunder;
(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;
(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 a mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(v) release all or substantially all of the Collateral securing the
Credit Party Obligations hereunder (provided that the Collateral Agent may,
without consent from any other Lender, release any Collateral that is sold
or transferred by a Credit Party in conformance with Section 8.5 or
released in conformance with Section 11.17);
(vi) release the Borrower or substantially all of the other Credit
Parties from its or their obligations under the Credit Documents (provided
that the Administrative Agent may, without the consent from any other
Lender, release any Guarantor that is sold or transferred in conformance
with Section 8.5);
(vii) amend, modify or waive any provision of this Section 11.6 or
Section 3.4(a), 3.4(b)(i), 3.7, 3.8, 3.15, 9.1(a), 11.2, 11.3 or 11.5;
(viii) reduce any percentage specified in, or otherwise modify, the
definition of Required 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 rights and
obligations under (or in respect of) the Credit Documents except as
permitted thereby; and
96
(b) no provision of Section 10 may be amended without the consent of the
Administrative Agent, no provision of Sections 2.2 or 3.4(b)(ii) may be amended
without the consent of the Issuing Lender and no provision of Section 2.4 may be
amended without the consent of the Swing Line Lender.
Notwithstanding the above, the right to deliver a Payment Blockage Notice (as
defined in the Indenture), or any similar provision in the documentation
evidencing the Additional Subordinated Debt, shall reside solely with the
Administrative Agent and the Administrative Agent shall deliver such Payment
Blockage Notice, or similar notice with respect to the Additional Subordinated
Debt, only upon the direction of the Required Lenders.
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 or the Letters of Credit, and each Lender acknowledges that the provisions
of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of counterparts, each
of which where 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 account for more than one
such counterpart. Delivery of an executed counterpart by facsimile shall be as
effective as an original executed counterpart and shall be deemed a
representation that an original executed counterpart will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then, notwithstanding the provisions of Section 11.6, it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders adversely
affected thereby; provided, however, that all other benefits and obligations
under the Credit Documents shall apply to such Defaulting Lender.
97
11.10 Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder.
11.11 Governing Law; Venue.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Agreement or any other
Credit Document may be brought in the courts of the State of North Carolina or
the State of New York, or of the United States for either the Western District
of North Carolina or the Southern District of New York, and, by execution and
delivery of this Credit Agreement, each Credit Party hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of such courts. Each Credit Party 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 for notices pursuant to Section
11.1, such service to become effective 15 days after such mailing. Nothing
herein shall affect the right of a Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against a Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 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.
98
11.14 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.
11.15 Binding Effect.
This Credit Agreement shall become effective at such time when it shall
have been executed by the Borrower, the Guarantors and the Administrative Agent,
and the Administrative 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 the Borrower, the Guarantors, the Administrative Agent and each Lender and
their respective successors and assigns; provided, however, unless the
conditions set forth in Section 5.1 have been satisfied by the Credit Parties or
waived by the Lenders on or before November 30, 1999, none of the Borrower, the
Guarantors, the Administrative Agent or the Lenders shall have any obligations
under this Credit Agreement.
11.16 Confidentiality.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.10 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall affect
the disclosure of any such information to (i) the extent such Lender in good
faith believes is required by statute, rule, regulation or judicial process,
(ii) counsel for such Lender or to its accountants, (iii) bank examiners or
auditors or comparable Persons, (iv) any Affiliate of such Lender, (v) any other
Lender, or any assignee, transferee or participant, or any potential assignee,
transferee or participant, of all or any portion of any Lender's rights under
this Credit Agreement who is notified of the confidential nature of the
information and agrees to be bound by this provision or provisions reasonably
comparable hereto, or (vi) any other Person in connection with any litigation to
which any one or more of the Lenders is a party; and provided further that no
Lender shall have any obligation under this Section 11.16 to the extent any such
information becomes available on a non-confidential basis from a source other
than a Credit Party or its Subsidiaries or that any information becomes publicly
available other than by a breach of this Section 11.16. Each Lender agrees it
will use all confidential information exclusively for the purpose of evaluating,
monitoring, selling, protecting or enforcing its Loans and other rights under
the Credit Documents. Without affecting any other rights of the Borrower and the
other Credit Parties, each Lender acknowledges that the Borrower shall be
entitled to seek the remedies of injunction, specific performance and other
equitable relief for any breach of the provisions of this Section 11.16.
99
11.17 Release of Collateral.
Upon the occurrence of a Release of Collateral Event, the Lenders agree,
upon the request and at the expense of the Borrower, to take such action as is
necessary to release all Collateral securing the Credit Party Obligations. The
Lenders hereby authorize the Administrative Agent to execute and deliver such
documentation or to take such other action as is necessary to give effect to
this Section 11.17.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
100
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
---------
XXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
GUARANTORS:
-----------
KNOLL OVERSEAS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
SPINNEYBECK ENTERPRISES, INC.,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
LENDERS:
--------
BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA, N.A., individually
in its capacity as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
THE CHASE MANHATTAN BANK,
individually in its capacity as a Lender
and in its capacity as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
XXXXXXX XXXXX & CO., XXXXXXX LYNCH,
PIERCE, XXXXXX & XXXXX INCORPORATED, in
its capacity as Documentation Agent
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION, in
its capacity as a Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
ALLFIRST BANK
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ Xxxxx Xxxx Xxxxx
------------------------------
Name: Xxxxx Xxxx Xxxxx
Title: First Vice President
and Corporate Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
NEW YORK BRANCH
By: /s/ Xxxxxxxx xx Xxxxx
------------------------------
Name: Xxxxxxxx xx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
CIBC INC.
By: /s/ Xxxx Zaluckyo
------------------------------
Name: Xxxx Zaluckyo
Title: Executive Director
CITY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
By: /s/ Xxxx XxXxxxx
------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
By: /s/ Xxxxxxx Ziwey
------------------------------
Name: Xxxxxxx Ziwey
Title: Director
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
XXXXXX BANK Plc
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxxx X. Tata
------------------------------
Name: Xxxxxx X. Tata
Title: Senior Vice President
SUMMIT BANK
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Director
SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
Exhibit 2.1
to
Credit Agreement
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
BANK XX XXXXXXX XXXXXXXXX XXXXXX
XXXXXXXXX, XXXXX XXXXXXXX 00000
RE: Credit Agreement dated as of October 20, 1999 among Xxxxx,
Inc. (the "Borrower"), the Domestic Subsidiaries of the
Borrower, as Guarantors, Bank of America, N.A., as
Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, as Documentation Agent,
and the Lenders party thereto (as the same may be amended,
modified, extended or restated from time to time, the
"Credit Agreement")
DATE: _____________, _______
-------------------------------------------------------------------------------
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting Revolving Loans in
the amount of $__________ to be funded on ____________, at the
interest rate option set forth in paragraph 3 below. Subsequent to the
funding of the requested Revolving Loans, the aggregate amount of
outstanding Revolving Loans will be $ which together with the
aggregate amount of outstanding LOC Obligations and the aggregate
amount of Swing Line Loans outstanding is less than or equal to the
Revolving Committed Amount.
3. The interest rate option applicable to the requested Revolving Loans
shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period
of:
________ one month
________ two months
________ three months
________ six months
4. The representations and warranties made by the Credit Parties in the
Credit Documents are true and correct in all material respects at and
as if made on the date hereof except to the extent they expressly
relate to an earlier date.
5. As of the date hereof, no Default or Event of Default has occurred and
is continuing or would be caused by this Notice of Borrowing.
6. No Material Adverse Effect has occurred since the Closing Date.
XXXXX, INC.
By: _________________________
Name: _______________________
Title:_______________________
Exhibit 2.1(e)
to
Credit Agreement
FORM OF
REVOLVING NOTE
Lender: ___________________ ______________, 1999
Principal Sum: $___________
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
hereby promises to pay to the order of the Lender set forth above (the
"Lender"), at the office of Bank of America, N.A. (the "Administrative Agent")
as set forth in that certain Credit Agreement dated as of October 20, 1999 among
the Borrower, the Domestic Subsidiaries of the Borrower, as Guarantors, the
Lenders named therein (including the Lender), the Administrative Agent, The
Chase Manhattan Bank, as Syndication Agent, and Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Documentation Agent (as modified
and supplemented and in effect from time to time, the "Credit Agreement"), the
Principal Sum set forth above (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Revolving Loans made by the Lender to
the Borrower under the Credit Agreement), in lawful money of the United States
of America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Revolving Loan, at such office, in like money and
funds, for the period commencing on the date of such Revolving Loan until such
Revolving Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit Agreement
and evidences Revolving Loans made by the Lender thereunder. Capitalized terms
used in this Revolving Note and not otherwise defined shall have the respective
meanings assigned to them in the Credit Agreement and the terms and conditions
of the Credit Agreement are expressly incorporated herein and made a part
hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Revolving Loans evidenced by this Revolving Note upon the occurrence of certain
events (and for payment of collection costs in connection therewith) and for
prepayments of Revolving Loans upon the terms and conditions specified therein.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorney fees.
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Revolving Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or under
this Revolving Note in respect of the Revolving Loans to be evidenced by this
Revolving
Note, and each such recordation or endorsement shall be prima facie evidence of
such information.
This Revolving Note and the Revolving Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose by or on behalf of the Borrower as provided
in Section 11.3(d) of the Credit Agreement.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
executed as of the date first above written.
XXXXX, INC.
By: _________________________
Name: _______________________
Title:_______________________
Exhibit 2.3(d)
to
Credit Agreement
FORM OF
TERM NOTE
Lender: ___________________ _____________, 1999
Principal Sum: $___________
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
hereby promises to pay to the order of the Lender set forth above (the "Lender")
and its registered assigns, at the office of Bank of America, N.A. (the
"Administrative Agent") as set forth in that certain Credit Agreement dated as
of October 20, 1999 among the Borrower, the Domestic Subsidiaries of the
Borrower, as Guarantors, the Lenders named therein (including the Lender), the
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Documentation Agent (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), the Principal Sum set forth above (or such lesser
amount as shall equal the aggregate unpaid principal amount of the Term Loan
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of such Term Loan, at such office, in
like money and funds, for the period commencing on the date of such Term Loan
until such Term Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement and
evidences the Term Loan made by the Lender thereunder. Capitalized terms used in
this Term Note and not otherwise defined shall have the respective meanings
assigned to them in the Credit Agreement and the terms and conditions of the
Credit Agreement are expressly incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Term Loan evidenced by this Term Note upon the occurrence of certain events (and
for payment of collection costs in connection therewith) and for prepayments of
such Term Loan upon the terms and conditions specified therein. In the event
this Term Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to the principal and interest, all costs of
collection, including reasonable attorney fees.
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of the Term Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or under
this Term Note in respect of the Term Loan to be evidenced by this Term Note,
and each such recordation or endorsement shall be prima facie evidence of such
information.
This Term Note and the Term Loan evidenced hereby may be transferred in
whole or in part only by registration of such transfer on the Register
maintained for such purpose by or on behalf of the Borrower as provided in
Section 11.3(d) of the Credit Agreement.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be executed
as of the date first above written.
XXXXX, INC.
By:_________________________
Name: ______________________
Title:______________________
Exhibit 2.4(b)
to
Credit Agreement
FORM OF SWING LINE LOAN REQUEST
TO: BANK OF AMERICA, N.A., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Credit Agreement dated as of October 20, 1999 among Xxxxx,
Inc. (the "Borrower"), the Domestic Subsidiaries of the
Borrower, as Guarantors, Bank of America, N.A., as
Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and the Lenders named
therein (as the same may be amended, modified, extended or
restated from time to time, the "Credit Agreement")
DATE: _____________, 199__
1. This Swing Line Loan Request is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall
have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Swing Line Loan on the
terms set forth below:
(A) Date of requested Swing Line
Loan ____________________
(B) Principal amount of requested
Swing Line Loan ____________________
3. Subsequent to the funding of the requested Swing Line Loan, (a) the
aggregate amount of outstanding Swing Line Loans plus Revolving Loans
outstanding plus LOC Obligations outstanding will be $______________, which
is less than or equal to the Revolving Committed Amount and (b) the
aggregate amount of Swing Line Loans outstanding will be $______________
which is less than or equal to the Swing Line Committed Amount.
4. The representations and warranties made by the Credit Parties in the Credit
Documents are true and correct in all material respects at and as if made
on the date hereof except to the extent they expressly relate to an earlier
date.
5. As of the date hereof , no Default or Event of Default has occurred and is
continuing or would be caused by this Swing Line Loan Request.
6. No Material Adverse Effect has occurred since the Closing Date.
XXXXX, INC.
By: _________________________
Name:________________________
Title:_______________________
Exhibit 2.4(e)
to
Credit Agreement
FORM OF SWING LINE LOAN NOTE
$10,000,000 October 20, 1999
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
hereby promises to pay to the order of BANK OF AMERICA, N.A. (the "Swing Line
Lender") and its registered assigns, at the office of Bank of America, N.A. (the
"Administrative Agent") as set forth in that certain Credit Agreement dated as
of October 20, 1999 among the Borrower, the Domestic Subsidiaries of the
Borrower, as Guarantors, the Lenders named therein (including the Swing Line
Lender), the Administrative Agent, The Chase Manhattan Bank, as Syndication
Agent, and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as Documentation Agent (as modified and supplemented and in effect
from time to time, the "Credit Agreement"), the principal amount of TEN MILLION
DOLLARS ($10,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Swing Line Loans made by the Swing Line Lender to the
Borrower under the Credit Agreement), in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Swing Line Loan, at such office, in like money and
funds, for the period commencing on the date of such Swing Line Loan until such
Swing Line Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
This Note is the Swing Line Loan Note referred to in the Credit Agreement
and evidences the Swing Line Loans made by the Swing Line Lender thereunder.
Capitalized terms used in this Swing Line Loan Note and not otherwise defined
shall have the respective meanings assigned to them in the Credit Agreement and
the terms and conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Swing Line Loans evidenced by this Swing Line Loan Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of such Swing Line Loans upon the terms and conditions specified
therein. In the event this Swing Line Loan Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorney
fees.
The date, amount, type and interest rate of the Swing Line Loans made by
the Swing Line Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Swing Line Lender on its books;
provided that the failure of the Swing Line Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrower to make a
payment when due of any amount owing under the Credit Agreement or under this
Swing Line Loan Note in respect of the Swing Line Loans to be evidenced by this
Swing Line Loan Note, and each such recordation or endorsement shall be prima
facie evidence of such information.
This Swing Line Loan Note and the Swing Line Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose by or on behalf of the Borrower as provided
in Section 11.3(d) of the Credit Agreement.
THIS SWING LINE LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Loan Note to be
duly executed as of the date first above written.
XXXXX, INC.
By: _________________________
Name: _______________________
Title:_______________________
Exhibit 2.5
to
Credit Agreement
FORM OF NOTICE OF CONTINUATION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
BANK XX XXXXXXX XXXXXXXXX XXXXXX
XXXXXXXXX, XXXXX XXXXXXXX 00000
RE: Credit Agreement dated as of October 20, 1999 among Xxxxx,
Inc. (the "Borrower"), the Domestic Subsidiaries of the
Borrower, as Guarantors, Bank of America, N.A., as
Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx, Incorporated, as Documentation
Agent, and the Lenders party thereto (as the same may be
amended, modified, extended or restated from time to time,
the "Credit Agreement")
DATE: _____________, ________
-------------------------------------------------------------------------------
1. This Notice of Continuation/Conversion is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise
defined shall have the meanings set forth in the Credit Agreement.
2. Please be advised that:
______ (a) the Borrower is requesting that a portion of the
current outstanding Revolving Loans in the amount
of $__________ currently accruing interest at
_________ be extended or converted as of
_____________ at the interest rate option set
forth in paragraph 3 below.
______ (b) the Borrower is requesting that a portion of the
outstanding Term Loans in the amount of
$__________ currently accruing interest at
________ be extended or converted as of
____________ at the interest rate option set forth
in paragraph 3 below.
3. The interest rate option applicable to the extension or conversion of
all or part of the existing Revolving Loans or Term Loans (as set
forth above) shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
4. As of the date hereof, no Default or Event of Default has occurred and
is continuing.
XXXXX, INC.
By: ______________________________
Name: ____________________________
Title:____________________________
Exhibit 7.1(c)
to
Credit Agreement
FORM OF OFFICER'S CERTIFICATE
For the fiscal quarter ended _________________, ________.
I, ______________________, chief financial officer of Xxxxx, Inc. (the
"Borrower") hereby certify on behalf of the Borrower and not in my individual
capacity that, with respect to that certain Credit Agreement dated as of October
20, 1999 (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"; all of the defined terms in the Credit Agreement
are incorporated herein by reference) among the Borrower, the other Credit
Parties party thereto, the Lenders party thereto, Bank of America, N.A., as
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Documentation Agent:
a. Attached hereto as Schedule 1 are calculations demonstrating
compliance by the Credit Parties with the financial covenants contained in
Section 7.11 of the Credit Agreement as of the end of the fiscal period
referred to above.
b. No dividends were paid or redemptions made during the fiscal period
referenced above or if any dividends were made or redemptions paid,
attached hereto as Schedule 2 is a description thereof and evidence of
compliance with the terms of Section 8.7 of the Credit Agreement, as
applicable, including calculations as necessary.
c. No principal payments, redemptions or deposits were made with
respect to Subordinated Debt during the fiscal period referenced above or
if any principal payments, redemption or deposits were made on the
Subordinated Debt, attached hereto as Schedule 3 is a description thereof
and evidence of compliance with the terms of Section 8.10 of the Credit
Agreement, including calculations as necessary.
d. No Default or Event of Default has occurred under the Credit
Agreement(1).
e. The quarterly financial statements which accompany this certificate
fairly present in all material respects the financial condition of the
Credit Parties and their Subsidiaries and have been prepared in accordance
with GAAP, subject to changes resulting from audit and normal year-end
audit adjustments.
______________________
1 If a Default or Event of Default shall have occurred an explanation of
such Default or Event of Default shall be provided on a separate page
together with an explanation of the action taken or proposed to be taken by
the Credit Parties with respect thereto.
This ______ day of ___________, ________.
XXXXX, INC.
________________________________
Chief Financial Officer
Exhibit 7.13
to
Credit Agreement
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement"), dated as of _____________, , is
entered into between _____________________, a ___________________ (the "New
Subsidiary") and BANK OF AMERICA, N.A., in its capacity as Administrative Agent
(the "Administrative Agent") under that certain Credit Agreement, dated as of
October 20, 1999 among Xxxxx, Inc. (the "Borrower"), the Domestic Subsidiaries
of the Borrower, as Guarantors, the Lenders party thereto, the Administrative
Agent, The Chase Manhattan Bank, as Syndication Agent and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Documentation Agent (as
the same may be amended, modified, extended or restated from time to time, the
"Credit Agreement"). All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement.
The New Subsidiary and the Administrative Agent, for the benefit of the
Lenders, hereby agree as follows:
1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New Subsidiary will be deemed to be a Credit
Party under the Credit Agreement and a "Guarantor" for all purposes of the
Credit Agreement and shall have all of the obligations of a Guarantor thereunder
as if it had executed the Credit Agreement. The New Subsidiary hereby ratifies,
as of the date hereof, and agrees to be bound by, all of the terms, provisions
and conditions contained in the Credit Agreement, including without limitation
(a) all of the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement, (b) all of the affirmative and negative
covenants set forth in Sections 7 and 8 of the Credit Agreement and (c) all of
the guaranty obligations set forth in Section 4 of the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the New
Subsidiary, subject to the limitations set forth in Section 4.7 of the Credit
Agreement, hereby guarantees, jointly and severally with the other Guarantors,
to the Agents and the Lenders, as provided in Section 4 of the Credit Agreement,
the prompt payment and performance of the Credit Party Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise) strictly in accordance with the terms thereof and agrees that if any
of the Credit Party Obligations are not paid or performed in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise), the New Subsidiary will, jointly and severally together with the
other Guarantors, promptly pay and perform 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 or otherwise) in accordance with the terms of such extension or
renewal.
2. If required, the New Subsidiary is, simultaneously with the execution of
this Agreement, executing and delivering such Collateral Documents (and such
other documents and instruments) as requested by the Administrative Agent in
accordance with Section 7.13 of the Credit Agreement.
3. The address of the New Subsidiary for purposes of Section 11.1 of the
Credit Agreement is as follows:
_______________________
_______________________
_______________________
_______________________
4. The New Subsidiary hereby waives acceptance by the Agents and the
Lenders of the guaranty by the New Subsidiary under the Credit Agreement upon
the execution of this Agreement by the New Subsidiary.
5. This 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.
6. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By: _________________________
Name: _______________________
Title:_______________________
Acknowledged and accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:_________________________
Name:_______________________
Title:______________________
Exhibit 11.3(b)
to
Credit Agreement
FORM OF
ASSIGNMENT AGREEMENT
Reference is made to that certain Credit Agreement dated as of October 20,
1999 (as the same may be amended, modified, extended or restated from time to
time, the "Credit Agreement") among Xxxxx, Inc. (the "Borrower"), the Domestic
Subsidiaries of the Borrower, as Guarantors, the Lenders identified therein,
Bank of America, N.A., as Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, as Documentation Agent. All capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
1. The Assignor (as defined below) hereby sells and assigns, without
recourse and without representation or warranty except as expressly set forth
herein, to the Assignee (as defined below), and the Assignee hereby purchases
and assumes, without recourse, from the Assignor, effective as of effective date
of the assignment as designated below (the "Effective Date"), the interests set
forth below (the "Assigned Interest") in the Assignor's rights and obligations
under the Credit Agreement, including, without limitation, (a) the interests set
forth below in the Revolving Loan Commitment Percentage and the Term Loan
Commitment Percentage of the Assignor on the Effective Date, (b) the Loans owing
to the Assignor in connection with the Assigned Interest which are outstanding
on the Effective Date, and (c) the Assignor's participation interests in all
Letters of Credit as of the Effective Date and the rights and obligations
appurtenant thereto under the LOC Documents. Periodic payments made with respect
to the Assigned Interest which (i) accrued prior to the Effective Date shall be
remitted to the Assignor and (ii) accrue from and after the Effective Date shall
be remitted to the Assignee. From and after the Effective Date, the Assignee, if
it is not already a Lender under the Credit Agreement, shall become a "Lender"
for all purposes of the Credit Agreement and the other Credit Documents and, to
the extent of such assignment, the assigning Lender shall be relieved of its
obligations under the Credit Agreement.
2. The Assignor (a) represents and warrants to the Assignee that it is the
holder of the Assigned Interest, and the Loans and Participation Interests
related thereto, and it has not previously transferred or encumbered such
Assigned Interest, Loans or Participation Interests; (b) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Credit Documents or any other instrument or document furnished
pursuant thereto.
3. The Assignee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment; (b) agrees that it will,
independently and without reliance upon the Agents, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (c) confirms that it is an Eligible Assignee;
(d) appoints and authorizes each of the Agents to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Documents
as are delegated to such Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (e) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (f)
attaches any U.S. Internal Revenue Service or other forms required under Section
3.13 of the Credit Agreement.
4. This Assignment shall be effective only upon (a) the consent of the
Borrower, the Administrative Agent and the Issuing Lender to the extent required
under Section 11.3(b) of the Credit Agreement and (b) delivery to the
Administrative Agent of this Assignment Agreement together with the transfer
fees, if applicable, set forth in Section 11.3(b) of the Credit Agreement.
5. This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
6. Terms of Assignment
(a) Date of Assignment __________________
(b) Legal Name of Assignor __________________
(c) Legal Name of Assignee __________________
(d) Effective Date of Assignment __________________
(e) Revolving Loan Commitment
Percentage assigned _____________%
(f) Total Revolving Loans
outstanding as of Effective Date $______________
(g) Principal Amount of Revolving
Loans assigned on Effective Date
(the amount set forth in (f)
multiplied by the percentage
set forth in (e)) $______________
(h) Revolving Committed Amount $______________
(i) Principal Amount of Revolving
Committed Amount Assigned on
the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (e)) $______________
(j) Term Loan Commitment
Percentage assigned _____________%
(k) Total Term Loans outstanding
as of Effective Date $______________
(l) Principal Amount of Term
Loans assigned on Effective
Date (the amount set forth
in (k) multiplied by the
percentage set forth in (j)) $______________
The terms set forth above
are hereby agreed to:
_______________________, as Assignor
By:_________________________
Name: ______________________
Title:______________________
____________________, as Assignee
By:_________________________
Name:_______________________
Title: _____________________
CONSENTED TO (if applicable):
XXXXX, INC.
By:_________________________
Name: ______________________
Title:______________________
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________
Name:________________________
Title:_______________________
BANK OF AMERICA, N.A., as
Issuing Lender
By: _________________________
Name:________________________
Title:_______________________
