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AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of June 29, 2006
among
STANDARD PARKING CORPORATION,
as the Company
THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
BANK OF AMERICA, N.A.,
as Paying Agent,
BANK OF AMERICA, N.A. and
LASALLE BANK NATIONAL ASSOCIATION,
as Co-Administrative Agents,
and
XXXXX FARGO BANK, N.A.,
as Syndication Agent
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BANC OF AMERICA SECURITIES LLC and
LASALLE BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC,
as Sole Book Manager
TABLE OF CONTENTS
SECTION 1 DEFINITIONS............................................................................................1
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1.1 Definitions.....................................................................................1
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1.2 Other Interpretive Provisions..................................................................23
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SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES....................24
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2.1 Revolving Loans................................................................................24
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2.2 Borrowing Procedures...........................................................................25
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2.3 Letters of Credit..............................................................................26
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2.3.1 Letter of Credit Commitment...........................................................26
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2.3.2 Procedures............................................................................28
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2.3.3 Drawings and Reimbursements; Funding of Participations................................30
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2.3.4 Repayment of Participations...........................................................32
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2.3.5 Obligations Absolute..................................................................32
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2.3.6 Role of Issuing Lender................................................................33
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2.3.7 Cash Collateral.......................................................................34
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2.3.8 Applicability of ISP..................................................................35
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2.3.9 Conflict with Issuer Documents........................................................35
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2.3.10 Letters of Credit Issued for Subsidiaries............................................35
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2.3.11 Letter of Credit Amounts.............................................................35
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2.4 Swing Line Facility............................................................................35
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2.4.1 Swing Line Facility..................................................................35
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2.4.2 Borrowing Procedures.................................................................36
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2.4.3 Refinancing of Swing Line Loans......................................................36
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2.4.4 Repayment of Participations..........................................................37
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2.4.5. Interest for Account of Swing Line Lender............................................38
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2.4.6 Payments Directly to Swing Line Lender...............................................38
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2.5 Commitments Several............................................................................38
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2.6 Certain Conditions.............................................................................38
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SECTION 3 EVIDENCING OF LOANS...................................................................................39
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3.1 Notes..........................................................................................39
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3.2 Recordkeeping..................................................................................39
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SECTION 4 INTEREST..............................................................................................39
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4.1 Interest Rates.................................................................................39
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4.2 Interest Payment Dates.........................................................................40
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4.3 Setting and Notice of LIBOR Rates..............................................................40
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4.4 Computation of Interest........................................................................40
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SECTION 5 FEES 40
5.1 Non-Use Fee....................................................................................40
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5.2 Letter of Credit Fees..........................................................................41
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5.3 Paying Agent's Fees............................................................................41
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i
SECTION 6 INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS...........................41
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6.1 Increase, Reduction or Termination of the Revolving Commitment.................................41
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6.1.1 Increase of the Revolving Commitment.................................................42
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6.1.2 Voluntary Reduction or Termination of the Revolving Commitment.......................42
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6.1.3 All Reductions of the Revolving Commitment...........................................43
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6.2 Repayments.....................................................................................43
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6.2.1 Voluntary Repayments.................................................................43
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6.2.2 Mandatory Repayments.................................................................43
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6.3 Manner of Repayments...........................................................................44
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6.3.1 Partial Repayments...................................................................44
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6.4 Final Repayment................................................................................44
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6.4.1 Revolving Loans.....................................................................44
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SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.......................................................44
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7.1 Making of Payments.............................................................................44
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7.2 Application of Certain Payments................................................................44
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7.3 Due Date Extension.............................................................................45
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7.4 Setoff.........................................................................................45
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7.5 Proration of Payments..........................................................................45
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7.6 Taxes..........................................................................................45
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SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS...................................................47
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8.1 Increased Costs................................................................................47
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8.2 Basis for Determining Interest Rate Inadequate or Unfair.......................................48
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8.3 Changes in Law Rendering LIBOR Loans Unlawful..................................................49
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8.4 Funding Losses.................................................................................49
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8.5 Right of Lenders to Fund through Other Offices.................................................49
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8.6 Discretion of Lenders as to Manner of Funding..................................................50
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8.7 Mitigation of Circumstances; Replacement of Lenders............................................50
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8.8 Conclusiveness of Statements; Survival of Provisions...........................................50
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SECTION 9 REPRESENTATIONS AND WARRANTIES........................................................................51
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9.1 Organization...................................................................................51
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9.2 Authorization; No Conflict.....................................................................51
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9.3 Validity and Binding Nature....................................................................51
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9.4 Financial Condition............................................................................52
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9.5 No Material Adverse Change.....................................................................52
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9.6 Litigation and Contingent Liabilities..........................................................52
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9.7 Ownership of Properties; Liens.................................................................52
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9.8 Equity Ownership; Subsidiaries.................................................................52
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9.9 Pension Plans..................................................................................53
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9.10 Investment Company Act.........................................................................53
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9.11 Regulation U...................................................................................54
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9.12 Taxes..........................................................................................54
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9.13 Solvency, etc..................................................................................54
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9.14 Environmental Matters..........................................................................54
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9.15 Insurance......................................................................................55
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9.16 Real Property; Facility Leases and Facility Management Agreements..............................55
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9.17 Information....................................................................................55
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9.18 Intellectual Property..........................................................................56
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9.19 Burdensome Obligations.........................................................................56
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9.20 Labor Matters..................................................................................56
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9.21 No Default.....................................................................................56
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9.22 Subordinated Debt..............................................................................56
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ii
SECTION 10 AFFIRMATIVE COVENANTS................................................................................57
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10.1 Reports, Certificates and Other Information....................................................57
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10.1.1 Annual Report.......................................................................57
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10.1.2 Interim Reports.....................................................................57
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10.1.3 Compliance Certificates.............................................................57
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10.1.4 Reports to the SEC and to Shareholders..............................................58
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10.1.5 Notice of Default, Litigation and ERISA Matters.....................................58
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10.1.6 Management Reports..................................................................59
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10.1.7 Projections.........................................................................59
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10.1.8 Subordinated Debt Notices...........................................................59
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10.2 Books, Records and Inspections.................................................................60
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10.3 Maintenance of Property; Insurance.............................................................61
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10.4 Compliance with Laws; Payment of Taxes and Liabilities.........................................62
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10.5 Maintenance of Existence, etc..................................................................62
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10.6 Use of Proceeds................................................................................63
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10.7 Employee Benefit Plans.........................................................................63
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10.8 Environmental Matters..........................................................................63
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10.9 Further Assurances.............................................................................64
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SECTION 11 NEGATIVE COVENANTS...................................................................................65
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11.1 Debt...........................................................................................65
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11.2 Liens..........................................................................................66
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11.3 Restricted Payments............................................................................68
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11.4 Mergers, Consolidations, Sales.................................................................68
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11.5 Modification of Organizational Documents.......................................................70
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11.6 Transactions with Affiliates...................................................................71
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11.7 Unconditional Purchase Obligations.............................................................72
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11.8 Inconsistent Agreements........................................................................72
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11.9 Business Activities; Issuance of Equity........................................................72
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11.10 Investments, Loans and Advances................................................................73
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11.11 Restriction of Amendments to Certain Documents.................................................74
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11.12 Fiscal Year....................................................................................74
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11.13 Financial Covenants............................................................................74
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11.13.1 Fixed Charge Coverage Ratio..........................................................74
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11.13.2 Total Debt to EBITDA Ratio...........................................................74
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11.14 Repayment or Redemption of Debt; Cancellation of Debt..........................................75
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11.15 Affiliate Amounts..............................................................................75
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SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC............................................................75
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12.1 Initial Credit Extension.......................................................................76
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12.1.1 Notes..............................................................................76
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12.1.2 Authorization Documents............................................................76
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12.1.3 Consents, etc......................................................................76
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12.1.4 Guaranty and Collateral Agreement...................................................76
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12.1.5 Perfection Certificate.............................................................76
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12.1.6 Opinions of Counsel.................................................................77
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iii
12.1.7 Insurance..........................................................................77
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12.1.8 Copies of Documents................................................................77
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12.1.9 Payment of Fees....................................................................77
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12.1.10 Solvency Certificate.................................................................77
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12.1.11 Pro Forma............................................................................77
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12.1.12 Search Results; Lien Terminations....................................................77
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12.1.13 Filings, Registrations and Recordings................................................78
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12.1.14 Closing Certificate, Consents and Permits............................................78
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12.1.15 Obligations Senior...................................................................78
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12.1.16 Redemption Notice....................................................................78
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12.1.17 Other................................................................................79
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12.2 Conditions.....................................................................................79
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12.2.1 Compliance with Warranties, No Default, etc.........................................79
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12.2.2 Confirmatory Certificate............................................................79
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12.2.3 Real Estate Documents...............................................................79
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SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT...................................................................81
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13.1 Events of Default..............................................................................81
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13.1.1 Non-Payment of the Loans, etc.......................................................81
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13.1.2 Non-Payment of Other Debt...........................................................81
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13.1.3 Other Material Obligations..........................................................81
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13.1.4 Bankruptcy, Insolvency, etc.........................................................81
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13.1.5 Non-Compliance with Loan Documents..................................................82
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13.1.6 Representations; Warranties.........................................................82
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13.1.7 Pension Plans.......................................................................82
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13.1.8 Judgments...........................................................................83
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13.1.9 Invalidity of Collateral Documents, etc.............................................83
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13.1.10 Invalidity of Subordination Provisions, etc...........................................83
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13.1.11 Change of Control.....................................................................83
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13.1.12 Material Adverse Effect...............................................................83
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13.2 Effect of Event of Default.....................................................................83
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SECTION 14 THE AGENT............................................................................................84
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14.1 Appointment and Authorization..................................................................84
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14.2 Issuing Lender, LaSalle and Xxxxx..............................................................84
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14.3 Delegation of Duties...........................................................................85
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14.4 Exculpation of Agents..........................................................................85
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14.5 Reliance by Agents.............................................................................86
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14.6 Notice of Default..............................................................................86
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14.7 Credit Decision................................................................................87
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14.8 Indemnification................................................................................87
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14.9 Agent in Individual Capacity...................................................................88
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14.10 Successor Agent................................................................................88
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14.11 Collateral Matters.............................................................................89
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14.12 Paying Agent May File Proofs of Claim..........................................................89
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14.13 Other Agents; Arrangers and Managers...........................................................90
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iv
SECTION 15 GENERAL..............................................................................................90
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15.1 Waiver; Amendments.............................................................................90
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15.2 Confirmations..................................................................................91
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15.3 Notices........................................................................................91
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15.4 Computations...................................................................................92
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15.5 Costs, Expenses and Taxes......................................................................92
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15.6 Assignments; Participations....................................................................92
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15.6.1 Assignments...........................................................................92
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15.6.2 Participations........................................................................94
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15.7 Register.......................................................................................94
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15.8 GOVERNING LAW..................................................................................95
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15.9 Confidentiality................................................................................95
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15.10 Severability...................................................................................95
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15.11 Nature of Remedies.............................................................................96
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15.12 Entire Agreement...............................................................................96
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15.13 Counterparts...................................................................................96
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15.14 Successors and Assigns.........................................................................96
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15.15 Captions.......................................................................................97
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15.16 Patriot Act Notice.............................................................................97
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15.17 INDEMNIFICATION BY THE COMPANY.................................................................97
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15.18 Nonliability of Lenders........................................................................98
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15.19 FORUM SELECTION AND CONSENT TO JURISDICTION....................................................99
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15.20 WAIVER OF JURY TRIAL...........................................................................99
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15.21 No Advisory or Fiduciary Responsibility........................................................99
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15.22 USA PATRIOT Act Notice........................................................................100
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15.23 Waiver of Notice of Termination...............................................................100
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v
ANNEXES
ANNEX A Lenders and Pro Rata Shares
ANNEX B Addresses for Notices
SCHEDULES
SCHEDULE 1.1 Existing Letters of Credit
SCHEDULE 1.2 Non-Guarantor Joint Ventures
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Equity Ownership; Subsidiaries
SCHEDULE 9.14 Underground Storage Tanks
SCHEDULE 9.15 Insurance
SCHEDULE 9.16 Real Property; Facility Leases and Facility Management
Agreements
SCHEDULE 9.20 Labor Matters
SCHEDULE 11.1 Existing Debt
SCHEDULE 11.2 Existing Liens
SCHEDULE 11.10 Investments
SCHEDULE 11.15 Management Fees
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Assignment Agreement
EXHIBIT D Form of Loan Notice
vi
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 29, 2006
(this "Agreement") is entered into among STANDARD PARKING CORPORATION (the
"Company"), the financial institutions that are or may from time to time become
parties hereto (the "Lenders"), which, unless the context indicates otherwise,
shall include LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity,
"LaSalle") and XXXXX FARGO BANK, N.A. (in its individual capacity, "Xxxxx") as
the issuers of any Existing Letters of Credit, BANK OF AMERICA, N.A. (in its
individual capacity, "Bank of America"), as a Lender, as Paying Agent and as
Co-Administrative Agent for the Lenders, LaSalle, as a Lender and as
Co-Administrative Agent and Xxxxx, as a Lender and as Syndication Agent for the
Lenders, and amends and restates that certain Credit Agreement, dated as of June
2, 2004 (as amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement") among the Company, each lender from time to time
party thereto, LaSalle as the issuer of any Existing Letters of Credit, as a
lender and as administrative agent, and Xxxxx as the issuer of any Existing
Letters of Credit, as a lender and syndication agent.
The Lenders have agreed to make available to the Company a revolving
credit facility (which includes letters of credit) upon the terms and conditions
set forth herein.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
When used herein the following terms shall have the following meanings:
Account Debtor is defined in the Guaranty and Collateral Agreement.
Account or Accounts is defined in the UCC.
Acquired Debt means mortgage Debt or Debt with respect to Capital
Leases of a Person existing at the time such Person became a Subsidiary or
assumed by the Company or a Subsidiary of the Company pursuant to an Acquisition
permitted hereunder (and not created or incurred in connection with or in
anticipation of such Acquisition).
Acquisition means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of all or substantially
all of any business or division of a Person, (b) the acquisition of in excess of
50% of the Capital Securities of any Person, or otherwise causing any Person to
become a Subsidiary, or (c) the acquisition of another Person pursuant to a
merger or consolidation or any other combination with such Person (other than a
Person that is already a Subsidiary).
1
Adjusted Off-Balance Sheet Liabilities of a Person means, Off-Balance
Sheet Liabilities of such Person and its Subsidiaries, excluding (i) all
Facility Leases, Ordinary Course Equipment Leases and Facility Management
Agreements of such Person's and its Subsidiaries' businesses, and (ii) payments
required pursuant to that certain Executive Parking Management Agreement dated
as of May 1, 1998, together with the First Amendment thereto dated as of August
1, 1999, by and among the Company, D&E Parking, Inc., Xxxxxx X. Xxxxxxx and Xxxx
X. Xxxxx.
Affected Loan - see Section 8.3.
Affiliate of any Person means (a) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person, (b) any "executive" officer (as defined under the Exchange Act and the
Regulations thereunder) or director of such Person and (c) with respect to any
Lender, any entity administered or managed by such Lender or an Affiliate or
investment advisor thereof and which is engaged in making, purchasing, holding
or otherwise investing in commercial loans. A Person shall be deemed to be
"controlled by" any other Person if such Person possesses, directly or
indirectly, power to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managers or
power to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise. Unless expressly stated otherwise
herein, neither the Paying Agent, the Collateral Agent, nor any Lender shall be
deemed an Affiliate of any Loan Party.
Agreement - see the Preamble.
Applicable Margin means, for any day, the rate per annum set forth
below opposite the level (the "Level") then in effect, it being understood that
the Applicable Margin for (i) LIBOR Loans shall be the percentage set forth
under the column "LIBOR Margin", (ii) Base Rate Loans shall be the percentage
set forth under the column "Base Rate Margin", (iii) the Non-Use Fee Rate shall
be the percentage set forth under the column "Non-Use Fee Rate" and (iv) the L/C
Fee shall be the percentage set forth under the column "L/C Fee Rate":
2
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Level Total Debt LIBOR Base Rate Non-Use L/C Fee
to EBITDA Ratio Margin Margin Fee Rate Rate
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I Greater than or equal to 2.25% 0.75% 0.375% 2.25%
4.0:1
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II Greater than or equal to 2.00% 0.50% 0.375% 2.00%
3.5:1 but less than 4.0:1
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III Greater than or equal to 1.75% 0.25% 0.30% 1.75%
3.0:1 but less than 3.5:1
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IV Greater than or equal to 1.625% 0.125% 0.30% 1.625%
2.5:1 but less than 3.0:1
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V Less than 2.5:1 1.50% 0.00% 0.25% 1.50%
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The LIBOR Margin, the Base Rate Margin, the Non-Use
Fee Rate and the L/C Fee Rate shall be adjusted, to the extent
applicable, on the fifth (5th) Business Day after the Company
provides the annual and quarterly financial statements and
other information pursuant to Section 10.1.1 or 10.1.2, as
applicable, and the related Compliance Certificate, pursuant
to Section 10.1.3. Notwithstanding anything contained in this
paragraph to the contrary, (a) during the period from the
Closing Date through the fifth (5th) Business Day after the
Company provides the quarterly financial statements and other
information pursuant to Section 10.1.2, and the related
Compliance Certificate pursuant to Section 10.1.3 for the four
fiscal quarter period ending June 30, 2006, the LIBOR Margin,
the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee
Rate shall be based upon Level II, (b) if the Company fails to
deliver such financial statements and Compliance Certificate
in accordance with the provisions of Section 10.1.1, 10.1.2
and 10.1.3, the LIBOR Margin, the Base Rate Margin, the
Non-Use Fee Rate and the L/C Fee Rate shall be based upon
Level I above beginning on the date such financial statements
and Compliance Certificate were required to be delivered until
the fifth (5th) Business Day after such financial statements
and Compliance Certificate are actually delivered, whereupon
the Applicable Margin shall be determined by the then current
Level; and (c) no reduction to any Applicable Margin shall
become effective at any time when an Event of Default has
occurred and is continuing.
Asset Disposition - see Section 11.4(b).
Assignee - see Section 15.6.1.
Assignment Agreement - see Section 15.6.1.
Attorney Costs means, with respect to any Person, all reasonable fees
and charges of any external counsel to such Person, all reasonable disbursements
of such counsel and all court costs and similar legal expenses.
Availability Period means, with respect to the Commitments, the period
from and including the Closing Date to the earliest of (a) the Termination Date,
(b) the date of termination of the Revolving Commitment pursuant to Section
6.1.2, and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the Issuing Lenders to make L/C Credit Extensions
pursuant to Section 13.2.
Bank of America - see the Preamble.
Bank Product Agreements means those certain cash management service
agreements entered into from time to time between any Loan Party and a Lender or
its Affiliates in connection with any of the Bank Products.
3
Bank Product Obligations means all obligations, liabilities, contingent
reimbursement obligations, fees, and expenses owing by the Loan Parties to any
Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements
and irrespective of whether for the payment of money, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and including all such amounts that a Loan Party is obligated
to reimburse to the Paying Agent or any Lender as a result of the Paying Agent
or such Lender purchasing participations or executing indemnities or
reimbursement obligations with respect to the Bank Products provided to the Loan
Parties pursuant to the Bank Product Agreements.
Bank Products means any service or facility extended to any Loan Party
by any Lender or its Affiliates including: (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) ACH Transactions,
(f) cash management, including controlled disbursement, accounts or services, or
(g) Hedging Agreements.
BAS means Banc of America Securities LLC, in its capacity as joint lead
arranger and sole book manager.
Base Rate means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 0.50% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its "prime rate." The "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the "prime rate" announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change
Base Rate Loan means any Loan which bears interest at or by reference
to the Base Rate.
Base Rate Margin - see the definition of Applicable Margin.
Borrowing means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of LIBOR Loans, having the same Interest Period made
by each of the Lenders pursuant to Section 2.01.
BSA - see Section 10.4.
Business Day means any day on which Bank of America is open for
commercial banking business in Chicago, Illinois and, in the case of a Business
Day which relates to a LIBOR Loan, on which dealings are carried on in the
London interbank eurodollar market.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Company, including expenditures in respect of Capital Leases, but
excluding expenditures made in connection with the replacement, substitution or
restoration of assets to the extent financed (a) from insurance proceeds (or
other similar recoveries) paid on account of the loss of or damage to the assets
being replaced or restored or (b) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced.
4
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person that, in accordance with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
Capital Securities means, with respect to any Person, all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
issued or acquired after the Closing Date, including common shares, preferred
shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership, interests in a Trust, interests in other
unincorporated organizations or any other equivalent of such ownership interest.
Cash Collateralize means to deliver cash collateral to the Collateral
Agent, to be held as cash collateral for outstanding Letters of Credit, the
Existing Letters of Credit and other L/C Obligations pursuant to documentation
reasonably satisfactory to the Collateral Agent, the Issuing Lenders (with
respect to Letters of Credit) and LaSalle and Xxxxx (with respect to Existing
Letters of Credit). Derivatives of such term have corresponding meanings.
Cash Equivalent Investment means, at any time, (a) any evidence of
Debt, maturing not more than one year after such time, issued or guaranteed by
the United States Government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by a Lender or its holding company) rated at
least A-l by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or P-l by Xxxxx'x Investors Service, Inc., (c) any certificate
of deposit, time deposit or banker's acceptance, maturing not more than one year
after such time, or any overnight Federal Funds transaction that is issued or
sold by any Lender or its holding company (or by a commercial banking
institution that is a member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than $500,000,000), (d)
any repurchase agreement entered into with any Lender (or commercial banking
institution of the nature referred to in clause (c)) which (i) is secured by a
fully perfected security interest in any obligation of the type described in any
of clauses (a) through (c) above and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase
obligation of such Lender (or other commercial banking institution) thereunder
and (e) money market accounts or mutual funds which invest exclusively in assets
satisfying the foregoing requirements, and (f) other short term liquid
investments approved in writing by the Paying Agent.
Change of Control means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than in a
transaction described in clause (vi) below), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, to any "person" (as such term is used in
subsection 13(d)(3) of the Exchange Act), (ii) the adoption of a plan relating
to the liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than Xxxx X.
Xxxxxx and/or his Related Parties, becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition; provided, however, that a bona fide pledgee shall not be deemed to be
the beneficial owner of such pledged securities until the pledgee has taken all
formal steps necessary which are required to declare a default and determines
that the power to vote or to direct the vote or to dispose or to direct the
disposition of such pledged securities will be exercised), directly or
indirectly, of more than 50% of the Voting Stock of the Company (measured by
voting power rather than number of shares), (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors, (v)(a) the occurrence of any "Change of Control" as
defined in the 9 1/4% Note Documents during such time as the 9 1/4% Notes remain
outstanding, or (b) the occurrence of any change of control or similar provision
in any other Subordinated Debt, the Series D Preferred Stock (during such time
as any Series D Preferred Stock remains outstanding) or any other preferred
Capital Stock of the Company, or (vi) the Company consolidates with, or merges
with or into, any Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which more than thirty percent (30%) of the
outstanding Voting Stock of the Company is converted into or exchanged for cash,
securities or other property.
5
Closing Date - see Section 12.1.
Co-Administrative Agents means Bank of America and LaSalle in their
capacities as co-administrative agents for the Lenders hereunder and any
successors thereto in such capacity.
Code means the Internal Revenue Code of 1986.
Collateral Access Agreement means an agreement in form and substance
reasonably satisfactory to the Collateral Agent pursuant to which a mortgagee or
lessor of real property on which collateral is stored or otherwise located, or a
warehouseman, processor or other bailee of Inventory or other property owned by
any Loan Party, acknowledges the Liens of the Collateral Agent and waives any
Liens held by such Person on such property, and, in the case of any such
agreement with a mortgagee or lessor, permits the Collateral Agent reasonable
access to and use of such real property following the occurrence and during the
continuance of an Event of Default to assemble, complete and sell any collateral
stored or otherwise located thereon.
Collateral Agent means Bank of America in its capacity as collateral
agent for the Lenders under the Loan Documents and any successor thereto in such
capacity.
Collateral Documents means, collectively, the Guaranty and Collateral
Agreement, each Mortgage, each Collateral Access Agreement, each Perfection
Certificate and any other agreement or instrument pursuant to which the Company,
any Subsidiary or any other Person grants or purports to grant collateral to the
Collateral Agent for the benefit of the Lenders or otherwise relates to such
collateral.
6
Commitment means, as to any Lender, such Lender's commitment to make
Loans, and participate in Letters of Credit and Existing Letters of Credit,
under this Agreement. The initial amount of each Lender's commitment to make
Loans and participate in Letters of Credit and Existing Letters of Credit is set
forth on Annex A, as it may be amended, restated, modified or supplemented and
in effect from time to time.
Company - see the Preamble.
Compliance Certificate means a Compliance Certificate in substantially
the form of Exhibit B.
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Company and its
Subsidiaries for any period, the net income (or loss) of the Company and its
Subsidiaries for such period, determined in accordance with GAAP.
Contingent Liability means, with respect to any Person, each obligation
and liability of such Person and all such obligations and liabilities of such
Person incurred pursuant to any agreement, undertaking or arrangement by which
such Person: (a) guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
dividend, obligation or other liability of any other Person in any manner (other
than by endorsement of instruments in the course of collection), including any
indebtedness, dividend or other obligation which may be issued or incurred at
some future time; (b) guarantees the payment of dividends or other distributions
upon the Capital Securities of any other Person; (c) undertakes or agrees
(whether contingently or otherwise): (i) to purchase, repurchase, or otherwise
acquire any indebtedness, obligation or liability of any other Person or any
property or assets constituting security therefor, (ii) to advance or provide
funds for the payment or discharge of any indebtedness, obligation or liability
of any other Person (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, working capital or other financial condition of any other Person, or
(iii) to make payment to any other Person other than for value received; (d)
agrees to lease property or to purchase securities, property or services from
another Person with the purpose or intent of assuring any owner of indebtedness
or obligations of such other Person of the ability of such other Person to make
payment of such indebtedness or obligations; (e) to induce the issuance of, or
in connection with the issuance of, any letter of credit for the benefit of such
other Person; or (f) undertakes or agrees otherwise to assure a creditor against
loss; provided, however, for purposes of calculating compliance with Section
11.13, Contingent Liabilities shall exclude indorsements of instruments for
deposit or collection in the ordinary course of business and all Off-Balance
Sheet Liabilities of such Person, except for the Adjusted Off-Balance Sheet
Liabilities. The amount of any Contingent Liability shall (subject to any
limitation set forth herein) be deemed to be the outstanding principal amount
(or maximum permitted principal amount, if larger) of the indebtedness,
obligation or other liability guaranteed or supported thereby.
7
Continuing Directors means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the Closing Date or (ii) was nominated for election or elected to
such Board of Directors with the approval of (a) a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election, or (b) Xxxx X. Xxxxxx and/or his Related Parties as holder of a
majority of the Voting Stock of the Company prior to any other Change of
Control.
Controlled Group means all members of a controlled group of
corporations, all members of a controlled group of trades or businesses (whether
or not incorporated) under common control and all members of an affiliated
service group which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code or Section 4001 of
ERISA.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person, for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person in accordance with GAAP, (c) all obligations of such Person
to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person; provided that if such
Person has not assumed or otherwise become liable for such indebtedness, such
indebtedness shall be measured at the fair market value of such property
securing such indebtedness at the time of determination, (e) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn), bankers' acceptances and similar obligations
issued for the account of such Person (including the Letters of Credit and the
Existing Letters of Credit), (f) all Hedging Obligations of such Person, (g) all
Contingent Liabilities of such Person, (h) any liability of such Person for
Earnouts, (i) Off-Balance Sheet Liabilities of such Person, (j) all Debt of any
partnership of which such Person is a general partner, and (k) all Disqualified
Stock of such Person (provided that other Capital Securities that do not
constitute Disqualified Stock shall not constitute Debt, regardless of any
changes in GAAP). Notwithstanding the foregoing, Debt shall not include advances
to the Company from customers in connection with Facility Leases and Facility
Management Agreements of the Company in the ordinary course of business.
Defaulting Lender means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Paying Agent or any other Lender any other amount required to be
paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
8
Designated Proceeds - see Section 6.2.2(a).
Disqualified Stock means any class of Capital Security that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, or
otherwise has any distributions or other payments which are mandatory or
otherwise required at any time on or prior to the date that is one year after
the Termination Date, provided that any payment that is required solely due to a
customary change of control provision not more restrictive than the Change of
Control default in this Agreement shall not cause such class of Capital Security
to be deemed Disqualified Stock.
Dollar and the sign "$" mean lawful money of the United States of
America.
Domestic Subsidiary means each present and future Subsidiary of the
Company which is not a Foreign Subsidiary.
Earnouts means any payment which may be owing by any Person in
connection with any Permitted Acquisition, which payment is contingent upon the
earnings or other financial performance of the assets or stock being acquired
pursuant to such Permitted Acquisition.
EBITDA means, for any Computation Period, the sum of (A) Consolidated
Net Income for such Computation Period, excluding, to the extent reflected in
determining such Consolidated Net Income: (i) the income of any Person accrued
prior to the date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries or that Person's assets
are acquired by the Company or any of its Subsidiaries, (ii) the proceeds of any
insurance policy, (iii) gains (but not losses) from the sale, exchange, transfer
or other disposition of property or assets not in the ordinary course of
business of the Company and its Subsidiaries, and related tax effects in
accordance with GAAP, (iv) any other extraordinary or non-recurring gains or
other gains not from continuing operations of the Company or its Subsidiaries,
and related tax effects in accordance with GAAP, (v) the income of any Person
(including without limitation any Subsidiary or Joint Venture, but excluding any
Wholly Owned Subsidiary) in which any Person other than the Company or any of
its Subsidiaries has a joint interest or partnership interest or other ownership
interest, to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary or Joint Venture is not at the time permitted
by operation of the terms of its charter or of any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary or Joint Venture, except to the extent of the amount of
dividends or other distributions that are actually paid in cash to the Company
during such period, (vi) extraordinary non-cash losses and non-recurring
non-cash charges, (vii) income taxes, (viii) minority interests, (ix) interest
income net of Interest Expense, as defined in accordance with GAAP, (x)
depreciation and amortization expense, (xi) any other extraordinary or
non-recurring amounts or other amounts received by the Company or any of its
Subsidiaries from, or in respect of, any disposition or termination of any
Facility Lease or Facility Management Agreement of the Company or its
Subsidiaries, provided that, any such amount arising from a single transaction
shall only be excluded from Consolidated Net Income if it equals or exceeds
$250,000, (xii) costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby, (xiii) any non-cash gains or losses
under any Hedging Obligation, (xiv) with respect to the fourth fiscal quarter of
2005, expenses incurred in such fiscal quarter up to $500,000 relating to the
termination of a proposed Acquisition, (xv) expenses incurred in the third and
fourth fiscal quarters of 2005 in an aggregate amount not to exceed $300,000
relating to the termination of a management contract for a facility in the
Midwest and (xvi) any cash or non-cash losses or charges related to Hurricane
Xxxxxxx, plus (B) EBITDA, as calculated herein, of any Person related to any
Permitted Acquisition consummated during such Computation Period, calculated,
upon the Paying Agent's reasonable consent, as if such Permitted Acquisition had
occurred on the first day of the relevant Computation Period.
9
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
Environmental Laws means all present or future federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative or judicial orders, consent agreements,
directed duties, requests, licenses, authorizations and permits of, and
agreements with, any governmental authority, in each case relating to any matter
arising out of or relating to public health and safety, or pollution or
protection of the environment or workplace, including any of the foregoing
relating to the presence, use, production, generation, handling, transport,
treatment, storage, disposal, distribution, discharge, emission, release,
threatened release, control or cleanup of any Hazardous Substance.
ERISA means the Employee Retirement Income Security Act of 1974.
Event of Default means any of the events described in Section 13.1.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Excluded Taxes means taxes based upon, or measured by, the Lender's or
Paying Agent's (or a branch of the Lender's or Paying Agent's) overall net
income, overall net receipts, or overall net profits (including franchise taxes
imposed in lieu of such taxes).
Existing Credit Agreement - see the Preamble.
Existing Letter of Credit means any letter of credit described on
Schedule 1.1, as it may be amended or modified from time to time, issued by
LaSalle or Xxxxx prior to the Closing Date which has not expired or been drawn
in full and reimbursed as of the Closing Date.
Facility Leases means agreements for the lease by the Company or any of
its Subsidiaries or Joint Ventures of real estate utilized as a vehicle parking
facility and/or for ancillary parking and transportation services.
Facility Management Agreement means any agreement (other than the
Facility Leases), for the provision by the Company or any of its Subsidiaries or
Joint Ventures of services for the management or operation of a vehicle parking
facility and/or ancillary parking and transportation services, including without
limitation any such agreement designated as a management agreement, parking
enforcement agreement, operating agreement or license agreement.
10
Federal Funds Rate means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Paying Agent.
Fee Letter means the fee letter dated June 5, 2006 between the Company,
Bank of America and BAS.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company and its Subsidiaries,
which period shall be the 12-month period ending on December 31 of each year.
References to a Fiscal Year with a number corresponding to any calendar year
(e.g., "Fiscal Year 2005") refer to the Fiscal Year ending on December 31 of
such calendar year.
Fixed Charge Coverage Ratio means, for any Computation Period, the
ratio of (a) the total for such period of EBITDA minus the sum of income taxes
paid or payable in cash by the Loan Parties and all Unfinanced Capital
Expenditures to (b) the sum for such Computation Period of (i) cash Interest
Expense net of any cash interest income plus (ii) required payments of principal
of Funded Debt (excluding the Revolving Loans).
Foreign Subsidiary means any present or future Subsidiary of the
Company incorporated or formed in any jurisdiction other than any State or other
political subdivision of the United States of America.
FRB means the Board of Governors of the Federal Reserve System or any
successor thereto.
Funded Debt means, as to any Person, all Debt of such Person that
matures more than one year from the date of its creation (or is renewable or
extendible, at the option of such Person, to a date more than one year from such
date).
GAAP means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession) and the Securities and Exchange Commission, which are applicable to
the circumstances as of the date of determination.
11
Guarantor means each present and future Domestic Subsidiary of the
Company (other than Atrium Parking, Inc., a Delaware corporation, H&T Investment
Group, Inc., an Ohio corporation, S&J Parking Company, an Illinois corporation,
Hawaii Parking Maintenance, Inc., an Hawaii corporation ("Hawaii Parking") and
Tower Parking, Inc., a Delaware corporation ("Tower Parking")), each present and
future Joint Venture of the Company (other than any present or future Joint
Venture of the Company which is prohibited by its organizational documents from
becoming a Guarantor, and which shall be identified on Schedule 1.2 attached
hereto), or any other Person executing a Guaranty and Collateral Agreement at
any time.
Guaranty and Collateral Agreement means the Guaranty and Collateral
Agreement dated as of the date hereof executed and delivered by the Company and
each existing, new or future Guarantor, together with any joinders thereto and
any other guaranty and collateral agreement executed by the Company and each
existing, new or future Guarantor, in each case in form and substance
satisfactory to the Collateral Agent.
Hawaii Parking - see the definition of Guarantor.
Hazardous Substances means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, dielectric fluid containing levels of
polychlorinated biphenyls, radon gas and mold; (b) any chemicals, materials,
pollutant or substances defined as or included in the definition of "hazardous
substances", "hazardous waste", "hazardous materials", "extremely hazardous
substances", "restricted hazardous waste", "toxic substances", "toxic
pollutants", "contaminants", "pollutants" or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or substance,
the exposure to, or release of which is prohibited, limited or regulated by any
governmental authority or for which any duty or standard of care is imposed
pursuant to, any Environmental Law.
Hedging Agreement means any interest rate, currency or commodity swap
agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedging Obligation means, with respect to any Person, any liability of
such Person under any Hedging Agreement. The amount of any Person's obligation
in respect of any Hedging Obligation shall be deemed to be the incremental
obligation that would be reflected in the financial statements of such Person in
accordance with GAAP.
Honor Date - see Section 2.3.3(a).
Indemnified Liabilities - see Section 15.17.
Interest Expense means for any period the consolidated interest expense
of the Company and its Subsidiaries for such period (including all imputed
interest on Capital Leases).
12
Interest Period means, as to any LIBOR Loan, the period commencing on
the date such Loan is borrowed or continued as, or converted into, a LIBOR Loan
and ending on the date one, two, three or six months thereafter as selected by
the Company in its Loan Notice; provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(b) any Interest Period that begins on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(c) the Company may not select any Interest Period for a
Revolving Loan which would extend beyond the scheduled Termination
Date.
Inventory is defined in the Guaranty and Collateral Agreement.
Investment means, with respect to any Person, any investment in another
Person, whether by acquisition of any debt or Capital Security, by making any
loan or advance, by becoming obligated with respect to a Contingent Liability in
respect of obligations of such other Person (other than travel and similar
advances to employees in the ordinary course of business) or by making an
Acquisition.
ISP means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
Issuer Documents means with respect to any Letter of Credit or Existing
Letter of Credit, the L/C Application, and any other document, agreement and
instrument entered into by the applicable Issuing Lender, LaSalle or Xxxxx, as
applicable and the Company (or any Subsidiary) or in favor such Issuing Lender,
LaSalle or Xxxxx, as applicable and relating to any such Letter of Credit or
Existing Letter of Credit.
Issuing Lender means Bank of America, in its capacity as the issuer of
Letters of Credit hereunder, or any Affiliate of Bank of America that may from
time to time issue Letters of Credit, and any other Lender in its capacity as
issuer of Letters of Credit who has been selected by the Company and who has
agreed to act as an Issuing Lender hereunder in accordance with its terms and
their successors and assigns in such capacity.
Joint Venture means any corporation, limited or general partnership,
limited liability company, association, trust or other business entity of which
the Company or one or more of its Subsidiaries owns beneficially at least 25%
but less than 100% of the Capital Securities of such Person.
13
LaSalle - see the Preamble.
L/C Advance means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
L/C Application means, with respect to any request for the issuance of
a Letter of Credit, a letter of credit application in the form being used by the
applicable Issuing Lender at the time of such request for the type of letter of
credit requested.
L/C Borrowing means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.
L/C Credit Extension means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
L/C Fee Rate - see the definition of Applicable Margin.
L/C Obligations means, as at any date of determination, without
duplication, the aggregate amount available to be drawn under all outstanding
Letters of Credit and Existing Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing
the amount available to be drawn under any Letter of Credit or any Existing
Letter of Credit, the amount of such Letter of Credit or Existing Letter of
Credit shall be determined in accordance with Section 2.3.11. For all purposes
of this Agreement, if on any date of determination a Letter of Credit or
Existing Letter of Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter
of Credit or Existing Letter of Credit shall be deemed to be "outstanding" in
the amount so remaining available to be drawn.
Lender - see the Preamble. References to the "Lenders" shall include
any Issuing Lender; for purposes of clarification only, to the extent that Bank
of America (or any other Issuing Lender) may have any rights or obligations in
addition to those of the other Lenders due to its status as an Issuing Lender,
its status as such will be specifically referenced. In addition to the
foregoing, for the purpose of identifying the Persons entitled to share in the
Collateral and the proceeds thereof under, and in accordance with the provisions
of, this Agreement and the Collateral Documents, the term "Lender" shall include
Affiliates of a Lender providing a Bank Product.
Lender Party - see Section 15.17.
Letter of Credit means any standby letter of credit issued hereunder.
Letter of Credit Expiration Date means the day that is seven days prior
to the Termination Date (or, if such day is not a Business Day, the next
preceding Business Day).
14
Letter of Credit Sublimit means an amount equal to the lesser of (a)
the Revolving Commitment and (b) $50,000,000. The Letter of Credit Sublimit is
part of, and not in addition to, the Revolving Commitment.
LIBOR Base Rate means, for any Interest Period with respect to a LIBOR
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Paying Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
"LIBOR Rate" for such Interest Period shall be the rate per annum determined by
the Paying Agent to be the rate at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate amount of
the LIBOR Loan being made, continued or converted by Bank of America and with a
term equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
LIBOR Loan means any Loan which bears interest at a rate determined by
reference to the LIBOR Rate.
LIBOR Margin - see the definition of Applicable Margin.
LIBOR Office means with respect to any Lender the office or offices of
such Lender which shall be making or maintaining the LIBOR Loans of such Lender
hereunder. A LIBOR Office of any Lender may be, at the option of such Lender,
either a domestic or foreign office.
LIBOR Rate means for any Interest Period with respect to any LIBOR
Loan, a rate per annum determined by the Paying Agent to be equal to the
quotient obtained by dividing (a) the LIBOR Base Rate for such LIBOR Loan for
such Interest Period by (b) one minus the LIBOR Reserve Percentage for such
LIBOR Loan for such Interest Period.
LIBOR Reserve Percentage means, for any day during any Interest Period,
the reserve percentage (expressed as a decimal, carried out to five decimal
places) in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred to
as "Eurocurrency liabilities"). The LIBOR Rate for each outstanding LIBOR Loan
shall be adjusted automatically as of the effective date of any change in the
LIBOR Reserve Percentage.
Lien means, with respect to any Person, any interest granted by such
Person in any real or personal property, asset or other right owned or being
purchased or acquired by such Person (including an interest in respect of a
Capital Lease) which secures payment or performance of any obligation and shall
include any mortgage, lien, encumbrance, title retention lien, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
15
Loan Documents means this Agreement, the Notes, the Letters of Credit,
the Existing Letters of Credit, the Issuer Documents, the Fee Letter, the
Collateral Documents, any Subordination Agreements and all documents,
instruments and agreements delivered in connection with the foregoing.
Loan Notice means a notice of (a) a Borrowing of Loans, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of LIBOR
Loans, in each case pursuant to Section 2.2(a), which, if in writing, shall be
substantially in the form of Exhibit D.
Loan Party means the Company and each Subsidiary.
Loan or Loans means, as the context may require, Revolving Loans,
and/or Swing Line Loans.
Mandatory Repayment Event - see Section 6.2.2(a).
Margin Stock means any "margin stock" as defined in Regulation U.
Material Adverse Effect means (i) a material adverse effect on the
property, business, operations, financial condition, liabilities, prospects or
capitalization of the Company and its Subsidiaries, taken as a whole, (ii) a
material adverse effect on the ability of the Loan Parties to perform their
collective obligations under the Loan Documents taken as a whole, or (iii) a
material adverse effect on the rights and remedies of the Paying Agent, the
Collateral Agent, the Issuing Lenders or the Lenders under the Loan Documents.
Mortgage means a mortgage, deed of trust, leasehold mortgage or similar
instrument granting the Collateral Agent a Lien on real property of any Loan
Party.
Multiemployer Pension Plan means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any other member of the
Controlled Group may have any liability.
Net Capital Expenditures shall mean Capital Expenditures, exclusive of
(i) any such Capital Expenditures financed on a non-recourse basis (i.e., on
customary non-recourse terms and with recourse solely to the asset being
financed with such non-recourse debt) by third parties which are not Affiliates
of the Company, and (ii) Capital Expenditures which are incurred to complete a
Permitted Acquisition.
Net Cash Proceeds means:
(a) with respect to any Asset Disposition, the aggregate cash proceeds
(including cash proceeds received pursuant to policies of insurance or by way of
deferred payment of principal pursuant to a note, installment receivable or
otherwise, but only as and when received) received by any Loan Party pursuant to
such Asset Disposition net of (i) the direct costs relating to such sale,
transfer or other disposition (including sales commissions and legal, accounting
and investment banking fees), (ii) taxes paid or reasonably estimated by the
Company to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (iii)
amounts required to be applied to the repayment of any Debt secured by a Lien on
the asset subject to such Asset Disposition (other than the Loans);
16
(b) with respect to any issuance of Capital Securities, the aggregate
cash proceeds received by any Loan Party pursuant to such issuance, net of the
direct costs relating to such issuance (including sales and underwriters'
commissions and legal, accounting and investment banking fees); and
(c) with respect to any issuance of Debt, the aggregate cash proceeds
received by any Loan Party pursuant to such issuance, net of the direct costs of
such issuance (including up-front, underwriters' and placement fees, closing and
commitment fees, and legal, accounting and investment banking fees).
9 1/4% Note Indenture means that certain Indenture dated March 30,
1998, by and among the Company, "Subsidiary Guarantors" (as named therein), and
U.S. Bank (as successor to State Street Bank and Trust Company) as trustee
thereunder.
9 1/4% Notes shall mean the 9 1/4% Senior Subordinated Notes issued by
the Company in the original aggregate principal amount of $140,000,000 due 2008
issued pursuant to the 9 1/4% Note Indenture.
9 1/4% Note Documents means the 9 1/4% Note Indenture, the 9 1/4% Notes
and all agreements, instruments and documents executed in connection therewith
at any time.
Non-U.S. Participant - see Section 7.6(d).
Non-Use Fee Rate - see the definition of Applicable Margin.
Note means a promissory note substantially in the form of Exhibit A.
Obligations means all obligations (monetary (including any interest,
fees and charges that accrue after the commencement by or against the Company,
any Loan Party or any Guarantor of any proceeding under any bankruptcy or
insolvency law naming such Person as the debtor in such proceeding, regardless
of whether such interest, fees and charges are allowed claims in such
proceeding) or otherwise) of the Company and each Guarantor under this Agreement
and any other Loan Document including Attorney Costs and any reimbursement
obligations of the Company and each Guarantor in respect of Letters of Credit,
Existing Letters of Credit and surety bonds, all Hedging Obligations permitted
hereunder which are owed to any Lender or its Affiliate, and all Bank Products
Obligations, all in each case howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or due or
to become due.
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OFAC - see Section 10.4.
Off-Balance Sheet Liabilities of a Person means, without duplication,
(a) Receivables Facility Attributed Indebtedness and any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to Accounts
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of Accounts
or any other obligation of such Person or such transferor to
purchasers/transferees of interests in Accounts or notes receivable or the agent
for such purchasers/transferees), (b) any liability of such Person or any of its
Subsidiaries under any sale and leaseback transactions which do not create a
liability on the consolidated balance sheet of such Person, (c) any liability of
such Person or any of its Subsidiaries under any financing lease or so-called
"synthetic" lease transaction, or (d) any obligations of such Person or any of
its Subsidiaries arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries.
Operating Lease means any lease of (or other agreement conveying the
right to use) any real or personal property by any Loan Party, as lessee, other
than any Capital Lease.
Ordinary Course Capital Lease means a Capital Lease of computer
systems, equipment or motor vehicles entered into by the Company or its
Subsidiaries or Joint Ventures in the ordinary course of business in connection
with performing its obligations under Facility Management Agreements or Facility
Leases.
Ordinary Course Equipment Lease means an Operating Lease of computer
systems, equipment or motor vehicles entered into by the Company or its
Subsidiaries or Joint Ventures in the ordinary course of business in connection
with performing its obligations under Facility Management Agreements or Facility
Leases.
Ordinary Course Lease Termination means (i) the termination of an
Ordinary Course Equipment Lease or an Ordinary Course Capital Lease pursuant to
either (a) the termination of the related Facility Management Agreement or
Facility Lease, or (b) a material modification of the related Facility
Management Agreement or Facility Lease such that the items of equipment or motor
vehicles which are leased under such Ordinary Course Equipment Lease or Ordinary
Course Capital Lease are no longer needed or useful for the purposes of
performance under such Facility Management Agreement or Facility Lease by the
Company or the applicable Subsidiary, and (ii) termination of a Facility Lease
or Facility Management Agreement that is no longer needed or useful in the
business judgment of the Company.
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Ordinary Course Lease Termination Payments means payments of liquidated
damages or accelerated rentals or similar amounts which are paid under the terms
of an Ordinary Course Equipment Lease, Ordinary Course Capital Lease, Facility
Management Agreement or Facility Lease pursuant to an Ordinary Course Lease
Termination thereof at or prior to expiration of the then-applicable respective
terms thereunder.
Outstanding Amount means (i) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Company of Unreimbursed Amounts.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Participant - see Section 15.6.2.
Paying Agent means Bank of America in its capacity as paying agent for
the Lenders hereunder and any successor thereto in such capacity.
Pension Plan means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA or the minimum funding
standards of ERISA (other than a Multiemployer Pension Plan), and as to which
the Company or any member of the Controlled Group may have any liability,
including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under Section
4069 of ERISA.
Perfection Certificate means a perfection certificate executed and
delivered to the Collateral Agent by a Loan Party.
Permitted Acquisition means an Acquisition by the Company or a
Guarantor which meets the requirements set forth in Section 11.4 of this
Agreement.
Permitted Lien means a Lien expressly permitted hereunder pursuant to
Section 11.2.
Person means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or unit, or any
other entity, whether acting in an individual, fiduciary or other capacity.
Principals means (i) Xxxx X. Xxxxxx, Xxxxxxx Industries, Inc., a
Delaware corporation, AP Holdings, Inc., a Delaware corporation, Steamboat
Industries LLC, a New York limited liability company and Steamboat Industries
N.V., a corporation organized pursuant to the laws of The Netherlands Antilles,
(ii) the Related Parties of all the Persons described in the foregoing clause
(i) and (c) the Affiliates of all the Persons described in the foregoing clauses
(i) and (ii).
Pro Rata Share means:
(a) with respect to a Lender's obligation to make Revolving Loans,
participate in Letters of Credit and Existing Letters of Credit, reimburse the
applicable Issuing Lender (with respect to Letters of Credit) and LaSalle or
Xxxxx, as applicable (with respect to Existing Letters of Credit), and receive
payments of principal, interest, fees, costs, and expenses with respect thereto,
(x) prior to the Revolving Commitment being terminated or reduced to zero, the
percentage obtained by dividing (i) such Lender's Commitment, by (ii) the
aggregate Revolving Commitment of all Lenders and (y) from and after the time
the Revolving Commitment has been terminated or reduced to zero, the percentage
obtained by dividing (i) the aggregate unpaid principal amount of such Lender's
Revolving Outstandings by (ii) the aggregate unpaid principal amount of all
Revolving Outstandings;
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(b) with respect to all other matters as to a particular Lender, the
percentage obtained by dividing (i) such Lender's Commitment by (ii) the
aggregate amount of Revolving Commitment of all Lenders; provided that in the
event the Commitments have been terminated or reduced to zero, Pro Rata Share
shall be the percentage obtained by dividing (A) the principal amount of such
Lender's Revolving Outstandings by (B) the principal amount of all outstanding
Revolving Outstandings.
Receivables Facility Attributed Indebtedness means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
Regulation D means Regulation D of the FRB.
Regulation U means Regulation U of the FRB.
Related Parties means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
Replacement Lender - see Section 8.7(b).
Reportable Event means a reportable event as defined in Section 4043 of
ERISA and the regulations issued thereunder as to which the PBGC has not waived
the notification requirement of Section 4043(a), or the failure of a Pension
Plan to meet the minimum funding standards of Section 412 of the Code (without
regard to whether the Pension Plan is a plan described in Section 4021(a)(2) of
ERISA) or under Section 302 of ERISA.
Required Lenders means, at any time, Lenders whose Pro Rata Shares
exceed 50% as determined pursuant to clause (b) of the definition of "Pro Rata
Share".
Revolving Commitment means $135,000,000, as increased or reduced from
time to time pursuant to Section 6.1.
Revolving Loan - see Section 2.1.
Revolving Loan Availability means, at any time, the Revolving
Commitment less the sum of Revolving Outstandings.
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Revolving Outstandings means, at any time, the aggregate Outstanding
Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
SEC means the Securities and Exchange Commission or any other
governmental authority succeeding to any of the principal functions thereof.
Senior Officer means, with respect to any Loan Party, any of the chief
executive officer, the chief financial officer, the chief operating officer or
the treasurer of such Loan Party.
Series D Preferred Stock means the Series D preferred stock of the
Company.
Special Payment means any dividend, payment or other distribution in
respect of any class of the Company's Capital Securities or any dividend,
payment or distribution in connection with the redemption, purchase, retirement
or other acquisition, directly or indirectly, of any shares of the Company's
Capital Securities which is in compliance with all of the following
requirements:
(i) immediately before and after giving effect to any such
dividend, payment, distribution, redemption, purchase, retirement or
acquisition, no Event of Default or Unmatured Event of Default shall
exist; and
(ii) on a pro forma basis after giving effect to any such
dividend, payment, distribution, redemption, purchase, retirement or
acquisition, the Company is in compliance with the financial covenants
set forth in Section 11.13.
Subordinated Debt means, for any Person, any Indebtedness of such
Person which is fully subordinated to all Indebtedness of such Person owing to
the Paying Agent and the Lenders, by written agreements and documents in form
and substance satisfactory to the Required Lenders and which is governed by
terms and provisions, including without limitation maturities, covenants,
defaults, rates and fees, acceptable to the Paying Agent and the Required
Lenders, and shall include, without limitation, all Indebtedness owing pursuant
to the 9 1/4% Notes.
Subordinated Debt Documents means the 9 1/4% Note Documents and any
other agreement or document evidencing or relating to any Subordinated Debt, in
each case, as the same may be amended, restated, modified or supplemented and in
effect from time to time as permitted by the terms hereof.
Subsidiary means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which such Person
owns, directly or indirectly, such number of outstanding Capital Securities as
have more than 50% of the ordinary voting power for the election of directors or
other managers of such corporation, partnership, limited liability company or
other entity. Unless the context otherwise requires, each reference to
Subsidiaries herein shall be a reference to Subsidiaries of the Company.
21
Swing Line Commitment Amount means $10,000,000, as reduced from time to
time pursuant to Section 6.1, which commitment constitutes a sub facility of the
Revolving Commitment of the Swing Line Lender.
Swing Line Lender means Bank of America.
Swing Line Loan - see Section 2.4.
Syndication Agent means Xxxxx in its capacity as syndication agent for
the Lenders hereunder and any successor thereto in such capacity.
Taxes means any and all present and future taxes, duties, levies,
imposts, deductions, assessments, charges or withholdings, and any and all
liabilities (including interest and penalties and other additions to taxes) with
respect to the foregoing, but excluding Excluded Taxes.
Termination Date means the earlier to occur of (a) June 29, 2011 or (b)
such other date on which the Commitments terminate pursuant to Section 6 or 13.
Termination Event means, with respect to a Pension Plan that is subject
to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of Company or
any other member of the Controlled Group from such Pension Plan during a plan
year in which Company or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the
termination of such Pension Plan, the filing of a notice of intent to terminate
the Pension Plan or the treatment of an amendment of such Pension Plan as a
termination under Section 4041 of ERISA, (d) the institution by the PBGC of
proceedings to terminate such Pension Plan or (e) any event or condition that
might constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Pension Plan.
Total Assets shall mean, at any time, the consolidated assets of the
Company and its Subsidiaries, determined in accordance with GAAP.
Total Debt means all Debt of the Company and its Subsidiaries,
determined on a consolidated basis, excluding (a) contingent obligations in
respect of Contingent Liabilities (except to the extent constituting Contingent
Liabilities in respect of Debt of a Person other than any Loan Party and except
for any Contingent Liabilities in respect of Disqualified Stock of the Company
or any of its Subsidiaries), (b) Hedging Obligations, (c) obligations to pay
Earnouts, (d) Off-Balance Sheet Liabilities (including without limitation, the
D&E and Central Park-Chicago payment obligations identified on Schedule 11.1),
(e) Debt of the Company to Subsidiaries and Debt of Subsidiaries to the Company
or to other Subsidiaries, (f) the deferred compensation obligations identified
on Schedule 11.1, and (g) amounts recorded as "carrying value in excess of
principal due to recapitalization" with respect to the 9 1/4% Notes consistent
with historical financial statements.
Total Debt to EBITDA Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (a) Total Debt outstanding as of such day to (b) EBITDA
for the Computation Period ending on such day.
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Total Plan Liability means, at any time, the present value of all
vested and unvested accrued benefits under all Pension Plans, determined as of
the then most recent valuation date for each Pension Plan, using PBGC actuarial
assumptions for single employer plan terminations.
Tower Parking - see the definition of Guarantor.
Type means, with respect to any Loan, its character as a Base Rate Loan
or a LIBOR Loan.
UCC is defined in the Guaranty and Collateral Agreement.
Unfinanced Capital Expenditures means Capital Expenditures which are
incurred and not financed with Funded Debt (other than Obligations), and Capital
Expenditures which are incurred to complete a Permitted Acquisition.
Unfunded Liability means the amount (if any) by which the present value
of all vested and unvested accrued benefits under all Pension Plans exceeds the
fair market value of all assets allocable to those benefits, all determined as
of the then most recent valuation date for each Pension Plan, using PBGC
actuarial assumptions for single employer plan terminations.
Unmatured Event of Default means any event that, if it continues
uncured, will, with lapse of time or notice or both, constitute an Event of
Default.
Unreimbursed Amount - see Section 2.3.3(a).
Voting Stock means any class of Capital Securities, the holders of
which are at the time entitled, as such holders, to vote for the election of a
majority of the directors (or persons performing similar functions) of the
corporation, association, trust or other business entity involved, whether or
not the right so to vote exists by reasoning of the happening of a contingency.
Withholding Certificate - see Section 7.6(d).
Wholly-Owned Subsidiary means, as to any Person, a Subsidiary all of
the Capital Securities of which (except directors' qualifying Capital
Securities) are at the time directly or indirectly owned by such Person and/or
another Wholly-Owned Subsidiary of such Person.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) Section, Annex, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
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(c) The term "including" is not limiting and means "including without
limitation."
(d) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including."
(e) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement and the other Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, supplements and other modifications thereto, but only to the
extent such amendments, restatements, supplements and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and each
shall be performed in accordance with its terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Paying Agent, the
Collateral Agent, the Company, the Lenders and the other parties thereto and are
the products of all parties. Accordingly, they shall not be construed against
the Paying Agent, the Collateral Agent, the Issuing Lenders or the Lenders
merely because of the Paying Agent's, the Collateral Agent's or Lenders'
involvement in their preparation.
(h) Unless otherwise specified, all references herein to times of day
shall be references to Central time (daylight or standard, as applicable).
SECTION 2
COMMITMENTS OF THE LENDERS; BORROWING,
CONVERSION AND LETTER OF CREDIT PROCEDURES
2.1 Revolving Loans.
Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Company in Dollars from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at
any time outstanding the amount of such Lender's Commitment; provided,
however, that after giving effect to any Borrowing of Revolving Loans,
(i) the Revolving Outstandings shall not exceed the Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus such Lender's Pro Rata Share of
the Outstanding Amount of all L/C Obligations plus such Lender's Pro
Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender's Commitment. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.1, prepay under Section 6.2,
and reborrow under this Section 2.1. Revolving Loans may be Base Rate
Loans or LIBOR Loans, as further provided herein, provided, however,
all Borrowings made on the Closing Date shall be made as Base Rate
Loans.
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2.2 Borrowing Procedures.
(a) Each Borrowing, each conversion of Loans from one Type to
the other, and each continuation of LIBOR Loans shall be made upon the
Company's irrevocable notice to the Paying Agent, which may be given by
telephone. Each such notice must be received by the Paying Agent not
later than 12:00 p.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of, LIBOR Loans
or of any conversion of LIBOR Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic
notice by the Company pursuant to this Section 2.2(a) must be confirmed
promptly by delivery to the Paying Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Company. Each Borrowing of, conversion to or continuation of LIBOR Rate
Loans shall be in a principal amount of $2,000,000 or a whole multiple
of $500,000 in excess thereof. Except as provided in Sections 2.3.3 and
2.4.3, each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $250,000 or a whole multiple of $50,000 in excess
thereof. Each Loan Notice (whether telephonic or written) shall specify
(i) whether the Company is requesting a Borrowing, a conversion of
Loans from one Type to the other, or a continuation of LIBOR Loans,
(ii) the requested date of the Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect
thereto. If the Company fails to specify a Type of a Loan in a Loan
Notice or if the Company fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as,
or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable LIBOR Loans. If the
Company requests a Borrowing of, conversion to, or continuation of
LIBOR Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Loan Notice, the Paying Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the Paying Agent shall notify
each Lender of the details of any automatic conversion to Base Rate
Loans as described in the preceding subsection. In the case of a
Borrowing, each Lender shall make the amount of its Loan available to
the Paying Agent in immediately available funds at the Paying Agent's
Office not later than 2:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 12.2 (and, if such Borrowing is the initial Credit
Extension, Section 12.1), the Paying Agent shall make all funds so
received available to the Company in like funds as received by the
Paying Agent either by (i) crediting the account of the Company on the
books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Paying Agent by the
Company; provided, however, that if, on the date of a Borrowing of
Revolving Loans, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings and second, shall be made available to
the Company as provided above.
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(c) Except as otherwise provided herein, a LIBOR Loan may be
continued or converted only on the last day of the Interest Period for
such LIBOR Loan. During the existence of an Unmatured Event of Default
or Event of Default, no Loans may be requested as, converted to or
continued as LIBOR Loans without the consent of the Required Lenders.
(d) The Paying Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for
LIBOR Loans upon determination of such interest rate. At any time that
Base Rate Loans are outstanding, the Paying Agent shall notify the
Company and the Lenders of any change in Bank of America's prime rate
used in determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Borrowings, all conversions of
Loans from one Type to the other, and all continuations of Loans as
the same Type, there shall not be more than 5 Interest Periods in
effect with respect to Revolving Loans.
2.3 Letters of Credit.
2.3.1 Letter of Credit Commitment.
(a) Subject to the terms and conditions set forth herein, (i)
the Issuing Lenders agree, in reliance upon the agreements of the
Lenders set forth in this Section 2.3, (A) from time to time on any
Business Day during the period from the Closing Date until the Letter
of Credit Expiration Date, to issue Letters of Credit in Dollars for
the account of the Company or any of its Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (B) to honor drawings under the Letters of
Credit and Existing Letters of Credit; and (ii) the Lenders severally
agree to participate in Letters of Credit issued for the account of the
Company or its Subsidiaries and any Existing Letters of Credit and any
drawings thereunder, as applicable; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x)
the Revolving Outstandings shall not exceed the Revolving Commitment,
(y) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of
all L/C Obligations plus such Lender's Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Company that the
L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. Furthermore, each Lender with
a Commitment acknowledges and confirms that it has a participation
interest in the liability of LaSalle or Xxxxx, as applicable, under the
Existing Letters of Credit in a percentage equal to its Pro Rata Share
of the Revolving Loans. The Company's reimbursement obligations in
respect of the Existing Letters of Credit, and each Lender's
obligations in connection therewith, shall be governed by the terms of
this Agreement.
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(b) The Issuing Lenders shall not issue any Letter of Credit
if:
(i) subject to Section 2.3.2(c), the expiry date of
such requested Letter of Credit would occur after the Letter
of Credit Expiration Date, unless the Required Lenders have
approved such expiry date; or
(ii) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(c) The Issuing Lenders shall not be under any obligation to
issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the applicable Issuing Lender from issuing such
Letter of Credit, or any Law applicable to such Issuing Lender
or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over
the applicable Issuing Lender shall prohibit, or request that
the applicable Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the applicable Issuing Lender
with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the applicable Issuing
Lender is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the applicable
Issuing Lender any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the
applicable Issuing Lender in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would
violate one or more policies of the applicable Issuing Lender
applicable to borrowers generally;
(iii) except as otherwise agreed by the Paying Agent
and the applicable Issuing Lender, such Letter of Credit is in
an initial stated amount less than $100,000;
(iv) such Letter of Credit is to be denominated in a
currency other than Dollars; or
27
(v) a default of any Lender's obligations to fund
under Section 2.3.3 exists or any Lender is at such time a
Defaulting Lender hereunder, unless the applicable Issuing
Lender has entered into satisfactory arrangements with the
Company or such Lender to eliminate such Issuing Lender's risk
with respect to such Lender.
(d) The applicable Issuing Lender shall be under no obligation
to amend any Letter of Credit if (A) the Issuing Lender would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
2.3.2 Procedures.
(a) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Company delivered to the
applicable Issuing Lender (with a copy to the Paying Agent) in the form
of an L/C Application, appropriately completed and signed by a
Responsible Officer of the Company. Such L/C Application must be
received by the applicable Issuing Lender and the Paying Agent not
later than 12:00 p.m. at least three (3) Business Days (or such later
date and time as the Paying Agent and the applicable Issuing Lender may
agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
L/C Application shall specify in form and detail satisfactory to the
applicable Issuing Lender: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the applicable Issuing Lender
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such L/C Application shall specify in
form and detail reasonably satisfactory to the applicable Issuing
Lender (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the applicable
Issuing Lender may require. Additionally, the Company shall furnish to
the applicable Issuing Lender and the Paying Agent such other documents
and information pertaining to such requested Letter of Credit issuance
or amendment, including any Issuer Documents, as the applicable Issuing
Lender or the Paying Agent may require.
(b) Promptly after receipt of any L/C Application, the
applicable Issuing Lender will confirm with the Paying Agent (by
telephone or in writing) that the Paying Agent has received a copy of
such L/C Application from the Company and, if not, the applicable
Issuing Lender will provide the Paying Agent with a copy thereof.
Unless the applicable Issuing Lender has received written notice from
any Lender, the Paying Agent or any Loan Party, at least one Business
Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions
contained in Section 12 shall not be satisfied, then, subject to the
terms and conditions hereof, the applicable Issuing Lender shall, on
the requested date, issue a Letter of Credit for the account of the
Company or the applicable Subsidiary or enter into the applicable
amendment, as the case may be, in each case in accordance with the
applicable Issuing Lender's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the applicable Issuing Lender a risk participation in
such Letter of Credit in an amount equal to the product of such
Lender's Pro Rata Share times the amount of such Letter of Credit. Each
Lender hereby irrevocably and unconditionally agrees to purchase from
LaSalle and Xxxxx, as applicable, a risk participation in each Existing
Letter of Credit in an amount equal to the product of such Lender's Pro
Rata Share times the amount of such Existing Letter of Credit.
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(c) If the Company so requests in any applicable L/C
Application, the applicable Issuing Lender may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit must
permit the applicable Issuing Lender to prevent any such extension at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the
applicable Issuing Lender, the Company shall not be required to make a
specific request to the applicable Issuing Lender for any such
extension. Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the
applicable Issuing Lender to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the applicable Issuing
Lender shall not permit any such extension if (i) such Issuing Lender
has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised
form (as extended) under the terms hereof (by reason of the provisions
of clause (b) or (c) of Section 2.3.1 or otherwise), or (ii) it has
received notice (which may be by telephone or in writing) on or before
the day that is three Business Days before the Non-Extension Notice
Date (A) from the Paying Agent that the Required Lenders have elected
not to permit such extension or (B) from the Paying Agent, any Lender
or the Company that one or more of the applicable conditions specified
in Section 12.2 is not then satisfied, and in each case directing the
applicable Issuing Lender not to permit such extension.
(d) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the applicable Issuing Lender
will also deliver to the Company and the Paying Agent a true and
complete copy of such Letter of Credit or amendment.
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2.3.3 Drawings and Reimbursements; Funding of
Participations.
(a) Upon receipt from the beneficiary of any Letter of Credit
or Existing Letter of Credit of any notice of drawing under such Letter
of Credit or Existing Letter of Credit, the applicable Issuing Lender
(or LaSalle or Xxxxx with respect to any Existing Letter of Credit)
shall notify the Company and the Paying Agent thereof. Not later than
12:00 p.m. on the date of any payment by the applicable Issuing Lender
under a Letter of Credit (or LaSalle or Xxxxx with respect to any
Existing Letter of Credit) (or, if such payment by the applicable
Issuing Lender, LaSalle or Xxxxx is made after 12:00 p.m. not later
than 10:00 a.m. the next succeeding Business Day) (each such date, an
"Honor Date"), the Company shall reimburse the applicable Issuing
Lender (or LaSalle or Xxxxx as applicable) through the Paying Agent in
an amount equal to the amount of such drawing. If the Company fails to
so reimburse the applicable Issuing Lender (or LaSalle or Xxxxx as
applicable) by such time, the Paying Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Lender's Pro Rata Share
thereof. In such event, the Company shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.2(a) for the principal amount of
Base Rate Loans, but subject to the conditions set forth in Section
12.2 (other than the delivery of a Loan Notice) and provided that,
after giving effect to such Borrowing, the Revolving Outstandings shall
not exceed the Revolving Commitment. Any notice given by the applicable
Issuing Lender (or LaSalle or Xxxxx as applicable) or the Paying Agent
pursuant to this Section 2.3.3(a) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(b) Each Lender shall upon any notice pursuant to Section
2.3.3(a) make funds available to the Paying Agent for the account of
the applicable Issuing Lender (or LaSalle or Xxxxx with respect to any
Existing Letter of Credit, as applicable) at the Paying Agent's Office
in an amount equal to its Pro Rata Share of the Unreimbursed Amount not
later than 1:00 p.m. on the Business Day specified in such notice by
the Paying Agent, whereupon, subject to the provisions of Section
2.3.3(c), each Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Company in such amount. The Paying
Agent shall remit the funds so received to the applicable Issuing
Lender (or LaSalle or Xxxxx with respect to any Existing Letter of
Credit, as applicable).
(c) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 12.2 cannot be satisfied or for any other reason, the
Company shall be deemed to have incurred from the applicable Issuing
Lender (or LaSalle or Xxxxx with respect to any Existing Letter of
Credit, as applicable) an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Lender's payment
to the Paying Agent for the account of the applicable Issuing Lender
(or LaSalle or Xxxxx with respect to any Existing Letter of Credit, as
applicable) pursuant to Section 2.3.3(b) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.3.3.
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(d) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.3.3 to reimburse the applicable Issuing
Lender (or LaSalle or Xxxxx with respect to any Existing Letter of
Credit, as applicable) for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Pro Rata Share of such amount
shall be solely for the account of the applicable Issuing Lender (or
LaSalle or Xxxxx with respect to any Existing Letter of Credit, as
applicable).
(e) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the applicable Issuing Lender (or LaSalle or
Xxxxx with respect to any Existing Letter of Credit, as applicable) for
amounts drawn under Letters of Credit (or Existing Letters of Credit),
as contemplated by this Section 2.3.3, shall be absolute and
unconditional and shall not be affected by any circumstance, including
(i) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the applicable Issuing Lender (or LaSalle
or Xxxxx with respect to any Existing Letter of Credit, as applicable),
the Company or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Unmatured Event of Default or Event of
Default, or (iii) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Revolving Loans pursuant to this Section
2.3.3 is subject to the conditions set forth in Section 12.2 (other
than delivery by the Company of a Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the
Company to reimburse the applicable Issuing Lender (or LaSalle or Xxxxx
with respect to any Existing Letter of Credit, as applicable) for the
amount of any payment made by the applicable Issuing Lender under any
Letter of Credit (or LaSalle or Xxxxx under any Existing Letter of
Credit), together with interest as provided herein.
(f) If any Lender fails to make available to the Paying Agent
for the account of the applicable Issuing Lender (or LaSalle or Xxxxx
with respect to any Existing Letter of Credit, as applicable) any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.3.3 by the time specified in Section
2.3.3(b), the applicable Issuing Lender (or LaSalle or Xxxxx with
respect to any Existing Letter of Credit, as applicable) shall be
entitled to recover from such Lender (acting through the Paying Agent),
on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is
immediately available to the applicable Issuing Lender (or LaSalle or
Xxxxx with respect to any Existing Letter of Credit, as applicable) at
a rate per annum equal to the greater of the Federal Funds Rate and a
rate determined by the Paying Agent in accordance with banking industry
rules on interbank compensation. A certificate of the applicable
Issuing Lender (or LaSalle or Xxxxx with respect to any Existing Letter
of Credit, as applicable) submitted to any Lender (through the Paying
Agent) with respect to any amounts owing under this clause (f) shall be
conclusive absent manifest error.
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2.3.4 Repayment of Participations.
(a) At any time after the applicable Issuing Lender (or
LaSalle or Xxxxx with respect to any Existing Letter of Credit) has
made a payment under any Letter of Credit or Existing Letter of Credit
and has received from any Lender such Lender's L/C Advance in respect
of such payment in accordance with Section 2.3.3, if the Paying Agent
receives for the account of the applicable Issuing Lender (or LaSalle
or Xxxxx with respect to any Existing Letter of Credit, as applicable)
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Company or otherwise, including
proceeds of cash collateral applied thereto by the Paying Agent), the
Paying Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's L/C Advance was
outstanding) in the same funds as those received by the Paying Agent.
(b) If any payment received by the Paying Agent for the
account of an Issuing Lender (or LaSalle or Xxxxx with respect to any
Existing Letter of Credit) pursuant to Section 2.3.3(a) is required to
be returned under any of the circumstances described in Section 7.5
(including pursuant to any settlement entered into by such Issuing
Lender (or LaSalle or Xxxxx with respect to any Existing Letter of
Credit) in its discretion), each Lender shall pay to the Paying Agent
for the account of such Issuing Lender (or LaSalle or Xxxxx with
respect to any Existing Letter of Credit, as applicable) its Pro Rata
Share thereof on demand of the Paying Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time
to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
2.3.5 Obligations Absolute.
The obligation of the Company to reimburse the applicable Issuing
Lender (or LaSalle or Xxxxx with respect to any Existing Letter of Credit) for
each drawing under each Letter of Credit or Existing Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(a) any lack of validity or enforceability of such Letter of
Credit or Existing Letter of Credit, this Agreement or any other Loan
Document;
(b) the existence of any claim, counterclaim, setoff, defense
or other right that the Company or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit or
Existing Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the applicable Issuing Lender
(or LaSalle or Xxxxx with respect to any Existing Letter of Credit, as
applicable) or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of
Credit or Existing Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
32
(c) any draft, demand, certificate or other document presented
under such Letter of Credit or Existing Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document required
in order to make a drawing under such Letter of Credit or Existing
Letter of Credit;
(d) any payment by the applicable Issuing Lender under such
Letter of Credit (or LaSalle or Xxxxx under such Existing Letter of
Credit, as applicable) against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter of Credit
or Existing Letter of Credit, as applicable; or any payment made by
such Issuing Lender under such Letter of Credit (or LaSalle or Xxxxx
under such Existing Letter of Credit, as applicable) to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit or Existing Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
or
(e) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit or
Existing Letter of Credit and each amendment thereto that is delivered to
it and, in the event of any claim of noncompliance with the Company's
instructions or other irregularity, the Company will immediately notify the
applicable Issuing Lender (or LaSalle or Xxxxx with respect to any Existing
Letter of Credit, as applicable). The Company shall be conclusively deemed
to have waived any such claim against the applicable Issuing Lender (or
LaSalle or Xxxxx with respect to any Existing Letter of Credit, as
applicable) and its correspondents unless such notice is given as
aforesaid.
2.3.6 Role of Issuing Lender.
Each Lender and the Company agree that, in paying any drawing under a
Letter of Credit or Existing Letter of Credit, the applicable Issuing Lender (or
LaSalle or Xxxxx with respect to any Existing Letter of Credit) shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by such Letter of Credit or
Existing Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the applicable Issuing Lender (or LaSalle
or Xxxxx with respect to any Existing Letter of Credit), the Paying Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of such Issuing Lender (or LaSalle or Xxxxx with respect to any
33
Existing Letter of Credit) shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit, Existing Letter of Credit or Issuer
Document, as applicable. The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit or Existing Letter of Credit; provided, however, that this assumption
is not intended to, and shall not, preclude the Company's pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the applicable Issuing Lender (or LaSalle or
Xxxxx with respect to any Existing Letter of Credit), the Paying Agent, any of
their respective Related Parties nor any correspondent, participant or assignee
of the applicable Issuing Lender (or LaSalle or Xxxxx with respect to any
Existing Letter of Credit) shall be liable or responsible for any of the matters
described in clauses (a) through (e) of Section 2.3.5; provided, however, that
anything in such clauses to the contrary notwithstanding, the Company may have a
claim against the applicable Issuing Lender (or LaSalle or Xxxxx with respect to
any Existing Letter of Credit), and such Issuing Lender (or LaSalle or Xxxxx
with respect to any Existing Letter of Credit) may be liable to the Company, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Company which the Company proves were
caused by such Issuing Lender's (or LaSalle's or Xxxxx' with respect to any
Existing Letter of Credit) willful misconduct or gross negligence or such
Issuing Lender's (or LaSalle's or Xxxxx' with respect to any Existing Letter of
Credit) willful failure to pay under any Letter of Credit or Existing Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit or Existing Letter of Credit unless such Issuing Lender (or LaSalle or
Xxxxx with respect to any Existing Letter of Credit) is prevented or prohibited
from so paying as a result of any order or directive of any court or other
Governmental Authority. In furtherance and not in limitation of the foregoing,
the applicable Issuing Lender (or LaSalle or Xxxxx with respect to any Existing
Letter of Credit) may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and such Issuing Lender (or LaSalle or Xxxxx with
respect to any Existing Letter of Credit) shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or Existing Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
2.3.7 Cash Collateral.
Upon the request of the Paying Agent, (i) if any Issuing Lender (or
LaSalle or Xxxxx with respect to any Existing Letter of Credit) has honored any
full or partial drawing request under any Letter of Credit or Existing Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Company shall, in each case, immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations. The Company hereby grants to the
Collateral Agent, for the benefit of the Issuing Lenders (and LaSalle and Xxxxx
with respect to any Existing Letters of Credit) and the Lenders, a security
interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts with the Collateral Agent.
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2.3.8 Applicability of ISP.
Unless otherwise expressly agreed by the applicable Issuing Lender and
the Company when a Letter of Credit is issued, the rules of the ISP shall apply
to each Letter of Credit.
2.3.9 Conflict with Issuer Documents.
In the event of any conflict between the terms hereof and the terms of
any Issuer Document, the terms hereof shall control.
2.3.10 Letters of Credit Issued for Subsidiaries.
Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Subsidiary, the
Company shall be obligated to reimburse the applicable Issuing Lender hereunder
for any and all drawings under such Letter of Credit. The Company hereby
acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the Company, and that the Company's
business derives substantial benefits from the businesses of such Subsidiaries.
2.3.11 Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit or
Existing Letter of Credit at any time shall be deemed to be the stated amount of
such Letter of Credit or Existing Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit or Existing Letter
of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit or Existing Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit or Existing
Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.
2.4 Swing Line Facility.
2.4.1 Swing Line Facility.
Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.4, to make loans (each such loan, a "Swing Line Loan") to the
Company in Dollars from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Commitment Amount, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Swing Line Lender in its capacity as
a Lender of Revolving Loans, may exceed the amount of such Lender's Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
Revolving Outstandings shall not exceed the Revolving Commitment, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Commitment, and provided, further, that the
Company shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.4, prepay under Section 6.2, and reborrow under this Section 2.4. Each Swing
Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Swing Line Loan.
35
2.4.2 Borrowing Procedures.
Each Borrowing of Swing Line Loans shall be made upon the Company's
irrevocable notice to the Swing Line Lender and the Paying Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender
and the Paying Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum
principal amount of $250,000 and integral multiples of $100,000 in excess
thereof, and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Paying Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Paying Agent (by
telephone or in writing) that the Paying Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Paying Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Paying Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.4.1, or (B) that one or more of the
applicable conditions specified in Section 12 is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Company.
2.4.3 Refinancing of Swing Line Loans.
(a) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Company (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender's Pro Rata Share of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.2.1, without regard to
the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the conditions set forth in Section
12.2 (other than the delivery of a Loan Notice) and provided that,
after giving effect to such Borrowing, the Revolving Outstandings shall
not exceed the Revolving Commitment. The Swing Line Lender shall
furnish the Company with a copy of the applicable Loan Notice promptly
after delivering such notice to the Paying Agent. Each Lender shall
make an amount equal to its Pro Rata Share of the amount specified in
such Loan Notice available to the Paying Agent in immediately available
funds for the account of the Swing Line Lender at the Paying Agent's
Office not later than 1:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.4.3(b), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to
the Company in such amount. The Paying Agent shall remit the funds so
received to the Swing Line Lender.
36
(b) If for any reason any Swing Line Loan cannot be refinanced
by such a Borrowing of Revolving Loans in accordance with Section
2.4.3(a), the request for Base Rate Loans submitted by the Swing Line
Lender as set forth herein shall be deemed to be a request by the Swing
Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the Paying Agent
for the account of the Swing Line Lender pursuant to Section 2.4.3(a)
shall be deemed payment in respect of such participation.
(c) If any Lender fails to make available to the Paying Agent
for the account of the Swing Line Lender any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section
2.4.3 by the time specified in Section 2.4.3(a), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Paying Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking industry
rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Paying Agent) with respect to any
amounts owing under this clause (c) shall be conclusive absent manifest
error.
(d) Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.4.3 shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender may have against
the Swing Line Lender, the Company or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of an Unmatured Event of
Default or Event of Default or (ii) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Revolving Loans pursuant
to this Section 2.4.3 is subject to the conditions set forth in Section
12.2. No such purchase or funding of risk participations shall relieve
or otherwise impair the obligation of the Company to repay Swing Line
Loans, together with interest as provided herein.
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2.4.4 Repayment of Participations.
(a) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(b) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 7.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the
Paying Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Paying Agent will make such demand upon the request of
the Swing Line Lender. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
2.4.5. Interest for Account of Swing Line Lender.
The Swing Line Lender shall be responsible for invoicing the Company
for interest on the Swing Line Loans. Until each Lender funds its Revolving
Loans that are Base Rate Loans or risk participation pursuant to this Section
2.4 to refinance such Lender's Pro Rata Share of any Swing Line Loan, interest
in respect of such Pro Rata Share shall be solely for the account of the Swing
Line Lender.
2.4.6 Payments Directly to Swing Line Lender.
The Company shall make all payments of principal and interest in
respect of the Swing Line Loans directly to the Swing Line Lender.
2.5 Commitments Several.
The failure of any Lender to make a requested Loan on any date shall
not relieve any other Lender of its obligation (if any) to make a Loan on such
date, but no Lender shall be responsible for the failure of any other Lender to
make any Loan to be made by such other Lender.
2.6 Certain Conditions.
Except as otherwise provided in Sections 2.3.3(e) and 2.4.3 of this
Agreement, no Lender shall have an obligation to make any Loan, or to permit the
continuation of or any conversion into any LIBOR Loan, and the applicable
Issuing Lender shall not have any obligation to issue any Letter of Credit, if
an Event of Default or Unmatured Event of Default exists.
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SECTION 3
EVIDENCING OF LOANS
3.1 Notes.
The Loans of each Lender shall be evidenced by a Note, with
appropriate insertions, payable to the order of such Lender in a face principal
amount equal to the sum of such Lender's Revolving Commitment.
3.2 Recordkeeping.
The Paying Agent, on behalf of each Lender, shall record in its
records, the date and amount of each Loan made by each Lender, each repayment or
conversion thereof and, in the case of each LIBOR Loan, the dates on which each
Interest Period for such Loan shall begin and end. The aggregate unpaid
principal amount so recorded shall be rebuttably presumptive evidence of the
principal amount of the Loans owing and unpaid. The failure to so record any
such amount or any error in so recording any such amount shall not, however,
limit or otherwise affect the Obligations of the Company hereunder or under any
Note to repay the principal amount of the Loans hereunder, together with all
interest accruing thereon.
SECTION 4
INTEREST
4.1 Interest Rates.
The Company promises to pay interest on the unpaid principal amount
of each Loan for the period commencing on the date of such Loan until such Loan
is paid in full as follows:
(a) at all times while such Loan is a Base Rate Loan, at a rate per
annum equal to the sum of the Base Rate from time to time in effect plus the
Base Rate Margin from time to time in effect; and
(b) at all times while such Loan is a LIBOR Loan, at a rate per annum
equal to the sum of the LIBOR Rate applicable to each Interest Period for such
Loan plus the LIBOR Margin from time to time in effect;
provided that at any time an Event of Default exists, unless the Required
Lenders otherwise consent, the interest rate applicable to each Loan shall be
increased by 2% per annum (and, in the case of Obligations not bearing interest,
such Obligations shall bear interest at the Base Rate applicable to Revolving
Loans plus 2% per annum), provided further that such increase may thereafter be
rescinded by the Required Lenders, notwithstanding Section 15.1. Notwithstanding
the foregoing, upon the occurrence of an Event of Default under Section 13.1.1
or 13.1.4, such increase shall occur automatically.
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4.2 Interest Payment Dates.
Accrued interest on each Base Rate Loan shall be payable in arrears
on the last day of each calendar quarter and at maturity. Accrued interest on
each LIBOR Loan shall be payable on the last day of each Interest Period
relating to such Loan (and, in the case of a LIBOR Loan with an Interest Period
in excess of three months, on the three-month anniversary of the first day of
such Interest Period), upon a prepayment of such Loan, and at maturity. After
maturity, and at any time an Event of Default exists, accrued interest on all
Loans shall be payable on demand.
4.3 Setting and Notice of LIBOR Rates.
The applicable LIBOR Rate for each Interest Period shall be
determined by the Paying Agent, and notice thereof shall be given by the Paying
Agent promptly to the Company and each Lender. Each determination of the
applicable LIBOR Rate by the Paying Agent shall be conclusive and binding upon
the parties hereto, in the absence of demonstrable error. The Paying Agent
shall, upon written request of the Company or any Lender, deliver to the Company
or such Lender a statement showing the computations used by the Paying Agent in
determining any applicable LIBOR Rate hereunder.
4.4 Computation of Interest.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall bear interest for one day. Each determination by the Paying Agent of
an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 5
FEES
5.1 Non-Use Fee.
The Company agrees to pay to the Paying Agent for the account of each
Lender a non-use fee, for the period from the Closing Date to the Termination
Date, at the Non-Use Fee Rate in effect from time to time of such Lender's Pro
Rata Share (as adjusted from time to time) of the unused amount of the Revolving
Commitment. For purposes of calculating usage under this Section, the Revolving
Commitment shall be deemed used to the extent of aggregate Outstanding Amount of
all Revolving Loans and L/C Obligations. Such non-use fee shall be payable in
arrears on the last day of each calendar quarter and on the Termination Date for
any period then ending for which such non-use fee shall not have previously been
paid. The non-use fee shall be computed for the actual number of days elapsed on
the basis of a year of 360 days. For purposes of clarification, Swing Line Loans
shall not be considered outstanding for purposes of determining the non-use fee.
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5.2 Letter of Credit Fees.
(a) The Company agrees to pay to the Paying Agent for the account of
each Lender a letter of credit fee for each Letter of Credit and Existing Letter
of Credit equal to the L/C Fee Rate in effect from time to time of such Lender's
Pro Rata Share (as adjusted from time to time) of the undrawn amount of such
Letter of Credit or Existing Letter of Credit, as applicable (computed for the
actual number of days elapsed on the basis of a year of 360 days); provided
that, unless the Required Lenders otherwise consent, the rate applicable to each
Letter of Credit and each Existing Letter of Credit shall be increased by 2% per
annum at any time that an Event of Default exists. Such letter of credit fee
shall be payable in arrears on the last day of each calendar quarter and on the
Termination Date (or such later date on which such Letter of Credit or Existing
Letter of Credit expires or is terminated) for the period from the date of the
issuance of each Letter of Credit (other than any Existing Letter of Credit) (or
the last day on which the letter of credit fee was paid with respect thereto),
and from the Closing Date with respect to the Existing Letters of Credit, to the
date such payment is due or, if earlier, the date on which such Letter of Credit
or Existing Letter of Credit expired or was terminated.
(b) In addition, with respect to each Letter of Credit and Existing
Letter of Credit, the Company agrees to pay to the applicable Issuing Lender,
LaSalle or Xxxxx, as applicable, for its own account, (i) such fees and expenses
as such Issuing Lender, LaSalle or Xxxxx, as applicable, customarily requires in
connection with the issuance, negotiation, processing and/or administration of
letters of credit in similar situations and (ii) a letter of credit fronting fee
in the amount of 0.125% per annum of the maximum amount available to be drawn
under such Letter of Credit or Existing Letter of Credit, due and payable
quarterly in arrears on the Business Day immediately following the last day of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit (or with respect to any
Existing Letter of Credit, the first such date to occur after the Closing Date),
and on the Letter of Credit Expiration Date.
5.3 Paying Agent's Fees.
The Company agrees to pay to the Paying Agent such agent's fees as are
mutually agreed to from time to time by the Company and the Paying Agent
including the fees set forth in the Fee Letter.
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SECTION 6
INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS
6.1 Increase, Reduction or Termination of the Revolving
Commitment.
6.1.1 Increase of the Revolving Commitment.
From time to time after the Closing Date and prior to
the Termination Date, the Company may, at its option, with the
approval of the Paying Agent, and subject to the following
conditions, request to increase the aggregate Revolving
Commitment by up to an additional $40,000,000. In addition to
the approval of the Paying Agent, any such increase shall be
conditioned upon each of the following:
(a) no Event of Default or Unmatured Event of Default
shall have occurred and be continuing,
(b) The Company shall have obtained a commitment from
an existing Lender or a commitment to participate as an
additional Lender hereunder from a financial institution which
is reasonably acceptable to the Paying Agent, which commitment
shall be in writing and be in a minimum amount of $5,000,000
or an integral multiple thereof,
(c) Such Lender increasing its Commitment or such
proposed additional Lender shall have executed an amendment to
this Agreement in form and substance satisfactory to the
Paying Agent pursuant to which such Lender increases its
Commitment or such additional Lender shall become a Lender
hereunder with a Revolving Commitment; and
(d) The Loan Parties shall have executed and/or
delivered to the Paying Agent such additional instruments,
documents, certificates and agreements as the Paying Agent
shall reasonably request in connection with the foregoing and
to confirm that such increase in the Revolving Commitment
hereunder has been duly authorized and approved by each of the
Loan Parties.
Upon satisfaction of all such conditions precedent, the Commitments shall have
been increased as appropriate and such proposed additional Lender, if any, shall
become a Lender hereunder on and subject to the terms and conditions of this
Agreement.
6.1.2 Voluntary Reduction or Termination of the
Revolving Commitment.
The Company may from time to time on at least five
Business Days' prior written notice received by the Paying
Agent (which shall promptly advise each Lender thereof)
permanently reduce the Revolving Commitment to an amount not
less than the Revolving Outstandings. Any such reduction shall
be in an amount not less than $5,000,000 or a higher integral
multiple of $1,000,000. Concurrently with any reduction of the
Revolving Commitment to zero, the Company shall pay all
interest on the Revolving Loans, all non-use fees and all
letter of credit fees and shall Cash Collateralize in full all
obligations arising with respect to the Letters of Credit and
Existing Letters of Credit.
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6.1.3 All Reductions of the Revolving Commitment.
All reductions of the Revolving Commitment shall
reduce the Commitments ratably among the Lenders according to
their respective Pro Rata Shares.
6.2 Repayments.
6.2.1 Voluntary Repayments.
The Company may from time to time repay the Loans
(without any corresponding reduction in the Revolving
Commitment) in whole or in part; provided that the Company
shall give the Paying Agent (which shall promptly advise each
Lender) notice thereof not later than Noon, on the day of such
repayment (which shall be a Business Day), specifying the
Loans to be repaid and the date and amount of repayment. Any
such partial repayment shall be in an amount equal to $250,000
or a higher integral multiple of $50,000.
6.2.2 Mandatory Repayments.
(a) The Company shall make a repayment of the Loans
(without any corresponding reduction in the Revolving
Commitment) upon the occurrence of any of the following (each
a "Mandatory Repayment Event") at the following times and in
the following amounts (such applicable amounts being referred
to as "Designated Proceeds"):
(i) Concurrently with the receipt by any
Loan Party of any Net Cash Proceeds from any Asset
Disposition, in an amount equal to 100% of such Net
Cash Proceeds.
(ii) Concurrently with the receipt by any
Loan Party of any Net Cash Proceeds from any issuance
of Capital Securities of any Loan Party (excluding
(x) any issuance of Capital Securities pursuant to
any employee or director option program, benefit plan
or compensation program, and (y) any issuance by a
Subsidiary to the Company or another Subsidiary), in
an amount equal to 100% of such Net Cash Proceeds.
(iii) Concurrently with the receipt by any
Loan Party of any Net Cash Proceeds from any issuance
of any Debt of any Loan Party (excluding Debt
permitted by of Section 11.1), in an amount equal to
100% of such Net Cash Proceeds.
(b) If on any day on which the Revolving Outstandings
exceed the Revolving Commitment, the Company shall immediately
repay Revolving Loans or Cash Collateralize the outstanding
Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
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6.3 Manner of Repayments.
6.3.1 Partial Repayments.
Any repayment of a LIBOR Loan on a day other than the
last day of an Interest Period therefore shall include
interest on the principal amount being repaid and shall be
subject to Section 8.4. Except as otherwise provided by this
Agreement and the other Loan Documents, and unless otherwise
directed in writing by the Company, all principal payments in
respect of the Loans (other than the Swing Line Loans) shall
be applied first, to repay outstanding Base Rate Loans and
then to repay outstanding LIBOR Rate Loans in direct order of
Interest Period maturities.
6.4 Final Repayment.
6.4.1 Revolving Loans.
The Revolving Loans of each Lender shall be paid in
full and the Revolving Commitment shall terminate on the
Termination Date.
SECTION 7
MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments.
All payments of principal or interest on the Notes, and of all fees,
shall be made by the Company to the Paying Agent in immediately available funds
at the office specified by the Paying Agent not later than 1:00 P.M., on the
date due; and funds received after that hour shall be deemed to have been
received by the Paying Agent on the following Business Day. The Paying Agent
shall promptly remit to each Lender its share of all such payments received in
collected funds by the Paying Agent for the account of such Lender. All payments
under Section 8.1 shall be made by the Company directly to the Lender entitled
thereto without setoff, counterclaim or other defense.
7.2 Application of Certain Payments.
So long as no Event of Default has occurred and is continuing, (a)
payments matching specific scheduled payments then due shall be applied to those
scheduled payments and (b) voluntary and mandatory prepayments shall be applied
as set forth in Sections 6.2 and 6 3. After the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Paying Agent or any Lender as proceeds from the sale of, or other realization
upon, all or any part of the collateral shall be applied as the Paying Agent
shall determine in its discretion or, in the absence of a specific determination
by the Paying Agent, as set forth in the Guaranty and Collateral Agreement.
Concurrently with each remittance to any Lender of its share of any such
payment, the Paying Agent shall advise such Lender as to the application of such
payment.
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7.3 Due Date Extension.
If any payment of principal or interest with respect to any of the
Loans, or of any fees, falls due on a day which is not a Business Day, then such
due date shall be extended to the immediately following Business Day (unless, in
the case of a LIBOR Loan, such immediately following Business Day is the first
Business Day of a calendar month, in which case such due date shall be the
immediately preceding Business Day) and, in the case of principal, additional
interest shall accrue and be payable for the period of any such extension.
7.4 Setoff.
The Company agrees that the Collateral Agent and each Lender have all
rights of set-off and bankers' lien provided by applicable law, and in addition
thereto, the Company agrees that at any time any Event of Default exists, the
Paying Agent and each Lender may apply to the payment of any Obligations of the
Company hereunder, whether or not then due, any and all balances, credits,
deposits, accounts or moneys of the Company then or thereafter with the
Collateral Agent or such Lender.
7.5 Proration of Payments.
If any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise, on account of (a)
principal of or interest on any Loan, but excluding (i) any payment pursuant to
Section 8.7 or 15.6 and (ii) payments of interest on any Affected Loan) or (b)
its participation in any Letter of Credit or Existing Letter of Credit) in
excess of its applicable Pro Rata Share of payments and other recoveries
obtained by all Lenders on account of principal of and interest on the Loans (or
such participation) then held by them, then such Lender shall purchase from the
other Lenders such participations in the Loans (or sub-participations in Letters
of Credit or Existing Letters of Credit) held by them as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery.
7.6 Taxes.
(a) All payments made by the Company hereunder or under any Loan
Documents shall be made without setoff, counterclaim, or other defense. To the
extent permitted by applicable law, all payments hereunder or under the Loan
Documents (including any payment of principal, interest, or fees) to, or for the
benefit, of any person shall be made by the Company free and clear of and
without deduction or withholding for, or account of, any Taxes now or
hereinafter imposed by any taxing authority.
45
(b) If the Company makes any payment hereunder or under any Loan
Document in respect of which it is required by applicable law to deduct or
withhold any Taxes, the Company shall increase the payment hereunder or under
any such Loan Document such that after the reduction for the amount of Taxes
withheld (and any taxes withheld or imposed with respect to the additional
payments required under this Section 7.6(b)), the amount paid to the Lenders or
the Paying Agent equals the amount that was payable hereunder or under any such
Loan Document without regard to this Section 7.6(b). To the extent the Company
withholds any Taxes on payments hereunder or under any Loan Document, the
Company shall pay the full amount deducted to the relevant taxing authority
within the time allowed for payment under applicable law and shall deliver to
the Paying Agent within 30 days after it has made payment to such authority a
receipt issued by such authority (or other evidence satisfactory to the Paying
Agent) evidencing the payment of all amounts so required to be deducted or
withheld from such payment.
(c) If any Lender or the Paying Agent is required by law to make any
payments of any Taxes on or in relation to any amounts received or receivable
hereunder or under any other Loan Document, or any Tax is assessed against a
Lender or the Paying Agent with respect to amounts received or receivable
hereunder or under any other Loan Document, the Company will indemnify such
person against (i) such Tax (and any reasonable counsel fees and expenses
associated with such Tax) and (ii) any taxes imposed as a result of the receipt
of the payment under this Section 7.6(c). A certificate prepared in good faith
as to the amount of such payment by such Lender or the Paying Agent shall,
absent manifest error, be final, conclusive, and binding on all parties.
(d) (i) To the extent permitted by applicable law, each Lender
that is not a United States person within the meaning of Code section
7701(a)(30) (a "Non-U.S. Participant") shall deliver to the Company and the
Paying Agent on or prior to the Closing Date (or in the case of a Lender that is
an Assignee, on the date of such assignment to such Lender) two accurate and
complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any
successor or other applicable form prescribed by the IRS) certifying to such
Lender's entitlement to a complete exemption from, or a reduced rate in, United
States withholding tax on interest payments to be made hereunder or any Loan. If
a Lender that is a Non-U.S. Participant is claiming a complete exemption from
withholding on interest pursuant to Sections 87 1(h) or 881(c) of the Code, the
Lender shall deliver (along with two accurate and complete original signed
copies of IRS Form W-8BEN) a certificate in form and substance reasonably
acceptable to Paying Agent (any such certificate, a "Withholding Certificate").
In addition, each Lender that is a Non-U.S. Participant agrees that from time to
time after the Closing Date, (or in the case of a Lender that is an Assignee,
after the date of the assignment to such Lender), when a lapse in time (or
change in circumstances occurs) renders the prior certificates hereunder
obsolete or inaccurate in any material respect, such Lender shall, to the extent
permitted under applicable law, deliver to the Company and the Paying Agent two
new and accurate and complete original signed copies of an IRS Form W-8BEN,
W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the
IRS), and if applicable, a new Withholding Certificate, to confirm or establish
the entitlement of such Lender or the Paying Agent to an exemption from, or
reduction in, United States withholding tax on interest payments to be made
hereunder or any Loan.
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(ii) Each Lender that is not a Non-U.S. Participant (other
than any such Lender which is taxed as a corporation for U.S. federal
income tax purposes) shall provide two properly completed and duly
executed copies of IRS Form W-9 (or any successor or other applicable
form) to the Company and the Paying Agent certifying that such Lender
is exempt from United States backup withholding tax. To the extent
that a form provided pursuant to this Section 7.6(d)(ii) is rendered
obsolete or inaccurate in any material respect as result of change in
circumstances with respect to the status of a Lender, such Lender
shall, to the extent permitted by applicable law, deliver to the
Company and the Paying Agent revised forms necessary to confirm or
establish the entitlement to such Lender's or Agent's exemption from
United States backup withholding tax.
(iii) The Company shall not be required to pay additional
amounts to a Lender, or indemnify any Lender, under this Section 7.6
to the extent that such obligations would not have arisen but for the
failure of such Lender to comply with Section 7.6(d).
(iv) Each Lender agrees to indemnify the Paying Agent and
hold the Paying Agent harmless for the full amount of any and all
present or future Taxes and related liabilities (including penalties,
interest, additions to tax and expenses, and any Taxes imposed by any
jurisdiction on amounts payable to the Paying Agent under this
Section 7.6) which are imposed on or with respect to principal,
interest or fees payable to such Lender hereunder and which are not
paid by the Company pursuant to this Section 7.6, whether or not such
Taxes or related liabilities were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Paying
Agent makes written demand therefore.
SECTION 8
INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.
8.1 Increased Costs.
(a) If, after the date hereof, the adoption of, or any change in, any
applicable law, rule or regulation, or any change in the interpretation or
administration of any applicable law, rule or regulation by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency: (i) shall impose, modify or deem applicable
any reserve (including any reserve imposed by the FRB, but excluding any reserve
included in the determination of the LIBOR Rate pursuant to Section 4), special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by any Lender; or (ii) shall impose on any Lender
any other condition affecting its LIBOR Loans, its Note or its obligation to
make LIBOR Loans; and the result of anything described in clauses (i) and (ii)
above is to increase the cost to (or to impose a cost on) such Lender (or any
LIBOR Office of such Lender) of making or maintaining any LIBOR Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its LIBOR
Office) under this Agreement or under its Note with respect thereto, then upon
demand by such Lender (which demand shall be accompanied by a statement setting
forth the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Paying Agent), the
Company shall pay directly to such Lender such additional amount as will
compensate such Lender for such increased cost or such reduction, so long as
such amounts have accrued on or after the day which is 180 days prior to the
date on which such Lender first made demand therefor.
47
(b) If any Lender shall reasonably determine that any change in, or the
adoption or phase-in of, any applicable law, rule or regulation regarding
capital adequacy, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or the compliance by any Lender or
any Person controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's or such controlling Person's capital as a
consequence of such Lender's obligations hereunder or under any Letter of Credit
or Existing Letter of Credit to a level below that which such Lender or such
controlling Person could have achieved but for such change, adoption, phase-in
or compliance (taking into consideration such Lender's or such controlling
Person's policies with respect to capital adequacy) by an amount deemed by such
Lender or such controlling Person to be material, then from time to time, upon
demand by such Lender (which demand shall be accompanied by a statement setting
forth the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Paying Agent), the
Company shall pay to such Lender such additional amount as will compensate such
Lender or such controlling Person for such reduction so long as such amounts
have accrued on or after the day which is 180 days prior to the date on which
such Lender first made demand therefor.
8.2 Basis for Determining Interest Rate Inadequate or Unfair.
If
(a) the Paying Agent reasonably determines (which determination shall
be binding and conclusive on the Company) that by reason of circumstances
affecting the interbank LIBOR market adequate and reasonable means do not exist
for ascertaining the applicable LIBOR Rate; or
(b) the Required Lenders advise the Paying Agent that the LIBOR Rate as
determined by the Paying Agent for any Interest Period will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding LIBOR Loans
for such Interest Period (taking into account any amount to which such Lenders
may be entitled under Section 8.1) or that the making or funding of LIBOR Loans
has become impracticable as a result of an event occurring after the date of
this Agreement which in the opinion of such Lenders materially affects such
Loans;
then the Paying Agent shall promptly notify the other parties thereof and, so
long as such circumstances shall continue, (i) no Lender shall be under any
obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii) on
the last day of the current Interest Period for each LIBOR Loan, such Loan
shall, unless then repaid in full, automatically convert to a Base Rate Loan.
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8.3 Changes in Law Rendering LIBOR Loans Unlawful.
If any change in, or the adoption of any new, law or regulation, or any
change in the interpretation of any applicable law or regulation by any
governmental or other regulatory body charged with the administration thereof,
should make it (in the good faith judgment of any Lender) unlawful for any
Lender to make, maintain or fund LIBOR Loans, then such Lender shall promptly
notify each of the other parties hereto and, so long as such circumstances shall
continue, (a) such Lender shall have no obligation to make or convert any Base
Rate Loan into a LIBOR Loan (but shall make Base Rate Loans concurrently with
the making of or conversion of Base Rate Loans into LIBOR Loans by the Lenders
which are not so affected, in each case in an amount equal to the amount of
LIBOR Loans which would be made or converted into by such Lender at such time in
the absence of such circumstances) and (b) on the last day of the current
Interest Period for each LIBOR Loan of such Lender (or, in any event, on such
earlier date as may be required by the relevant law, regulation or
interpretation), such LIBOR Loan shall, unless then repaid in full,
automatically convert to a Base Rate Loan. Each Base Rate Loan made by a Lender
which, but for the circumstances described in the foregoing sentence, would be a
LIBOR Loan (an "Affected Loan") shall remain outstanding for the period
corresponding to the group of LIBOR Loans of which such Affected Loan would be a
part absent such circumstances.
8.4 Funding Losses.
The Company hereby agrees that upon written demand by any Lender (which
demand shall be accompanied by a statement setting forth in reasonable detail
the basis for the amount being claimed, a copy of which shall be furnished to
the Paying Agent), the Company will indemnify such Lender against any net loss
or expense which such Lender may sustain or incur (including any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain any LIBOR Loan), as
reasonably determined by such Lender, as a result of (a) any payment, prepayment
or conversion of any LIBOR Loan of such Lender on a date other than the last day
of an Interest Period for such Loan (including any conversion pursuant to
Section 8.3) or (b) any failure of the Company to borrow, convert or continue
any Loan on a date specified therefor in a Loan Notice pursuant to this
Agreement; provided that written notice of such loss is given to the Company
within 180 days of its incurrence. For this purpose, all notices to the Paying
Agent pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices.
Each Lender may, if it so elects, fulfill its commitment as to any
LIBOR Loan by causing a foreign branch or Affiliate of such Lender to make such
Loan; provided that in such event for the purposes of this Agreement such Loan
shall be deemed to have been made by such Lender and the obligation of the
Company to repay such Loan shall nevertheless be to such Lender and shall be
deemed held by it, to the extent of such Loan, for the account of such branch or
Affiliate.
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8.6 Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, except
with regard to the obligation to mitigate increased costs, each Lender shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if such Lender had
actually funded and maintained each LIBOR Loan during each Interest Period for
such Loan through the purchase of deposits having a maturity corresponding to
such Interest Period and bearing an interest rate equal to the LIBOR Rate for
such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Lenders.
(a) Each Lender shall promptly notify the Company and the Paying Agent
of any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Lender's
reasonable good faith judgment, otherwise disadvantageous to such Lender) to
mitigate or avoid, (i) any obligation by the Company to pay any amount pursuant
to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances described in
Section 8.2 or (and, if any Lender has given notice of any such event described
in clause (i) or (ii) above and thereafter such event ceases to exist, such
Lender shall promptly so notify the Company and the Paying Agent). Without
limiting the foregoing, each Lender will designate a different funding office if
such designation will avoid (or reduce the cost to the Company of) any event
described in clause (i) or (ii) above and such designation will not, in such
Lender's reasonable good faith judgment, be otherwise disadvantageous to such
Lender.
(b) If (i) the Company becomes obligated to pay additional amounts to
any Lender pursuant to Section 7.6 or 8.1, or (ii) any Lender gives notice of
the occurrence of any circumstances described in Section 8.2 or 8.3, or (iii)
any Lender becomes a Defaulting Lender, the Company may designate another bank
which is acceptable to the Paying Agent and the Issuing Lenders in their
reasonable discretion (such other bank being called a "Replacement Lender") to
purchase the Loans of such Lender and such Lender's rights hereunder, without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans and all accrued but unpaid
fees owed to such Lender and any other amounts payable to such Lender under this
Agreement, and to assume all the obligations of such Lender hereunder, and, upon
such purchase and assumption (pursuant to an Assignment Agreement), such Lender
shall no longer be a party hereto or have any rights hereunder (other than
rights with respect to indemnities and similar rights applicable to such Lender
prior to the date of such purchase and assumption) and shall be relieved from
all obligations to the Company hereunder, and the Replacement Lender shall
succeed to the rights and obligations of such Lender hereunder.
8.8 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 8.1,
8.2, 8.3 or 8.4 shall be conclusive absent demonstrable error. Lenders may use
reasonable averaging and attribution methods in determining compensation under
Sections 8.1 and, and the provisions of such Sections shall survive repayment of
the Obligations, cancellation of any Notes, expiration or termination of the
Letters of Credit and/or Existing Letters of Credit and termination of this
Agreement.
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SECTION 9
REPRESENTATIONS AND WARRANTIES.
To induce the Paying Agent, the Collateral Agent and the Lenders to
enter into this Agreement and to induce the Lenders to make Loans and issue and
participate in Letters of Credit and Existing Letters of Credit hereunder, the
Company represents and warrants to the Paying Agent, the Collateral Agent and
the Lenders that:
9.1 Organization.
Each Loan Party and each Guarantor is validly existing and in good
standing under the laws of its jurisdiction of organization; and each Loan Party
is duly qualified to do business in each jurisdiction where, because of the
nature of its activities or properties, such qualification is required, except
for such jurisdictions where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect.
9.2 Authorization; No Conflict.
Each Loan Party and each Guarantor is duly authorized to execute and
deliver each Loan Document to which it is a party, the Company is duly
authorized to borrow monies hereunder and each Loan Party and each Guarantor is
duly authorized to perform its Obligations under each Loan Document to which it
is a party. The execution, delivery and performance by each Loan Party and each
Guarantor of each Loan Document to which it is a party, and the borrowings by
the Company hereunder, do not and will not (a) require any consent or approval
of any governmental agency or authority (other than any consent or approval
which has been obtained and is in full force and effect), (b) conflict with (i)
any provision of law, (ii) the charter, by-laws or other organizational
documents of any Loan Party or Guarantor or (iii) any agreement, indenture,
instrument or other document, or any judgment, order or decree, which is binding
upon any Loan Party or Guarantor or any of their respective properties or (c)
require, or result in, the creation or imposition of any Lien on any asset of
any Loan Party or Guarantor (other than Liens in favor of the Collateral Agent
created pursuant to the Collateral Documents).
9.3 Validity and Binding Nature.
Each of this Agreement and each other Loan Document to which any Loan
Party is a party is the legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting the enforceability of
creditors' rights generally and to general principles of equity.
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9.4 Financial Condition.
The audited consolidated financial statements of the Company and its
Subsidiaries as at December 31, 2005 and the unaudited consolidated financial
statements of the Company and the Subsidiaries as at March 31, 2006, copies of
each of which have been delivered to each Lender, were prepared in accordance
with GAAP (subject, in the case of such unaudited statements, to the absence of
footnotes and to normal year-end adjustments) and present fairly in all material
respects the consolidated financial condition of the Company and its
Subsidiaries as at such dates and the results of their operations for the
periods then ended.
9.5 No Material Adverse Change.
Since December 31, 2005, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
9.6 Litigation and Contingent Liabilities.
No litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the Company's
knowledge, threatened, against any Loan Party or Guarantor which could
reasonably be expected to have a Material Adverse Effect, except as set forth in
Schedule 9.6. Other than any liability incident to such litigation or
proceedings, no Loan Party or Guarantor has any material contingent liabilities
not listed on Schedule 9.6 or permitted by Section 11.1 that could reasonably be
expected to result in a Material Adverse Effect.
9.7 Ownership of Properties; Liens.
Each Loan Party and each Guarantor owns good and, in the case of real
property, marketable title to all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges and claims (including infringement claims with respect to
patents, trademarks, service marks, copyrights and the like) except Permitted
Liens.
9.8 Equity Ownership; Subsidiaries.
Except as otherwise set forth on Schedule 9.8, all issued and
outstanding Capital Securities of each Subsidiary and Joint Venture are duly
authorized and validly issued, fully paid, non-assessable, and (in the case of
Subsidiaries and Joint Ventures) free and clear of all Liens other than those in
favor of the Collateral Agent, and such securities were issued in compliance
with all applicable state and federal laws concerning the issuance of
securities. Schedule 9.8 sets forth the authorized Capital Securities and
jurisdiction of organization of each Subsidiary and Joint Venture as of the
Closing Date. All of the issued and outstanding Capital Securities of each
Wholly-Owned Subsidiary are, directly or indirectly, owned by the Company. As of
the Closing Date, except as set forth on Schedule 9.8, there are no pre-emptive
or other outstanding rights, options, warrants, conversion rights or other
similar agreements or understandings for the purchase or acquisition of any
Capital Securities of any Subsidiary.
52
9.9 Pension Plans.
(a) The Unfunded Liability of all Pension Plans does not in the
aggregate exceed twenty percent of the Total Plan Liability for all such Pension
Plans. Each Pension Plan complies in all material respects with all applicable
requirements of law and regulations. No contribution failure under Section 412
of the Code, Section 302 of ERISA or the terms of any Pension Plan has occurred
with respect to any Pension Plan, sufficient to give rise to a Lien under
Section 3 02(f) of ERISA, or otherwise to have a Material Adverse Effect. There
are no pending or, to the knowledge of Company, threatened, claims, actions,
investigations or lawsuits against any Pension Plan, any fiduciary of any
Pension Plan, or Company or other any member of the Controlled Group with
respect to a Pension Plan or a Multiemployer Pension Plan which could reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any other
member of the Controlled Group has engaged in any prohibited transaction (as
defined in Section 4975 of the Code or Section 406 of ERISA) in connection with
any Pension Plan or Multiemployer Pension Plan which could reasonably be
expected to have a Material Adverse Effect. Within the past five years, neither
the Company nor any other member of the Controlled Group has engaged in a
transaction which resulted in a Pension Plan with an Unfunded Liability being
transferred out of the Controlled Group, which could reasonably be expected to
have a Material Adverse Effect. No Termination Event has occurred or is
reasonably expected to occur with respect to any Pension Plan, which could
reasonably be expected to have a Material Adverse Effect.
(b) All contributions (if any) have been made to any Multiemployer
Pension Plan that are required to be made by the Company or any other member of
the Controlled Group under the terms of the plan or of any collective bargaining
agreement or by applicable law; neither the Company nor any other member of the
Controlled Group has withdrawn or partially withdrawn from any Multiemployer
Pension Plan, incurred any withdrawal liability with respect to any such plan or
received notice of any claim or demand for withdrawal liability or partial
withdrawal liability from any such plan, and no condition has occurred which, if
continued, could result in a withdrawal or partial withdrawal from any such
plan, if any such withdrawal could reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any other member of the Controlled
Group has received any notice that any Multiemployer Pension Plan is in
reorganization, that increased contributions may be required to avoid a
reduction in plan benefits or the imposition of any excise tax if such increased
contributions could reasonably be expected to have a Material Adverse Effect,
that any such plan is or has been funded at a rate less than that required under
Section 412 of the Code, that any such plan is or may be terminated, or that any
such plan is or may become insolvent.
9.10 Investment Company Act.
No Loan Party is an "investment company" or a company "controlled" by
an "investment company" or a "subsidiary" of an "investment company," within the
meaning of the Investment Company Act of 1940.
53
9.11 Regulation U.
The Company is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
9.12 Taxes.
Each Loan Party has timely filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
due and payable with respect to such return, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books. The Loan Parties have made adequate reserves on their books
and records in accordance with GAAP for all taxes that have accrued but which
are not yet due and payable. No Loan Party has participated in any transaction
that relates to a year of the taxpayer (which is still open under the applicable
statute of limitations) which is a "reportable transaction" within the meaning
of Treasury Regulation Section 1.601 l-4(b)(2) (irrespective of the date when
the transaction was entered into).
9.13 Solvency, etc.
On the Closing Date, and immediately prior to and after giving effect
to the issuance of each Letter of Credit, participation in each Existing Letter
of Credit and each borrowing hereunder and the use of the proceeds thereof, with
respect to each Loan Party, individually, (a) the fair value of its assets is
greater than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities evaluated
on a going concern basis in accordance with GAAP, (b) the present fair saleable
value of its assets is not less than the amount that will be required to pay the
probable liability on its debts as they become absolute and matured, (c) it is
able to realize upon its assets and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature in
the normal course of business, (d) it does not intend to, and does not believe
that it will, incur debts or liabilities beyond its ability to pay as such debts
and liabilities mature and (e) it is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which its property
would constitute unreasonably small capital.
9.14 Environmental Matters.
The on-going operations of the Company, its Subsidiaries and the Joint
Ventures comply in all respects with all Environmental Laws, except such
non-compliance which could not (if enforced in accordance with applicable law)
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect. Each of the Company, its Subsidiaries and the Joint
Ventures has obtained, and maintained in good standing, all licenses, permits,
authorizations, registrations and other approvals required under any
Environmental Law and required for their respective ordinary course operations,
and for their reasonably anticipated future operations, and each of the Company,
its Subsidiaries and the Joint Ventures is in compliance with all terms and
conditions thereof, except where the failure to do so could not reasonably be
expected to result in material liability to any of the Company, its Subsidiaries
and the Joint Ventures and could not reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect. None of the
Company, its Subsidiaries or the Joint Ventures or any of its properties or
operations is subject to, or reasonably anticipates the issuance of, any written
order from or agreement with any Federal, state or local governmental authority,
nor subject to any judicial or docketed administrative or other proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous Substance.
There are no Hazardous Substances or other conditions or circumstances existing
with respect to any property, arising from operations prior to the Closing Date,
or relating to any waste disposal, of any of the Company, its Subsidiaries and
the Joint Ventures that would reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect. Except as listed
on Schedule 9.14, none of the Company, its Subsidiaries and the Joint Ventures
owns or operates any underground storage tanks that are not properly registered
or permitted under applicable Environmental Laws or that (i) at any time while
any of the Company, its Subsidiaries or the Joint Ventures has owned or operated
them, and (ii) at any time while any Person other than any of the Company, its
Subsidiaries and the Joint Ventures owned or operated them, to the Company's
best knowledge without independent investigation or inquiry, have released,
leaked, disposed of or otherwise discharged Hazardous Substances.
54
9.15 Insurance.
Set forth on Schedule 9.15 is a complete and accurate summary of the
property and casualty insurance program of the Loan Parties as of the Closing
Date (including the names of all insurers, policy numbers, expiration dates,
amounts and types of coverage, annual premiums, deductibles, self-insured
retention, and a description in reasonable detail of any self-insurance program,
retrospective rating plan, fronting arrangement or other risk assumption
arrangement involving any Loan Party). Each Loan Party and its properties are
insured with financially sound and reputable insurance companies which are not
Affiliates of the Loan Parties, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where such Loan Parties
operate.
9.16 Real Property; Facility Leases and Facility
Management Agreements.
Except as set forth on Schedule 9.16, the Company does not, and its
Subsidiaries do not, own any real property. Schedule 9.16 also sets forth a
listing of each Facility Lease and each Facility Management Agreement to which
the Company or any of its Subsidiaries or Joint Ventures is a party as lessee or
manager and specifies the city and state where the parking facility subject to
such lease or management agreement is located.
9.17 Information.
All information heretofore or contemporaneously herewith furnished in
writing by any Loan Party or Guarantor to the Paying Agent or any Lender for
purposes of or in connection with this Agreement and the transactions
contemplated hereby is, and all written information hereafter furnished by or on
behalf of any Loan Party or Guarantor to the Paying Agent or any Lender pursuant
hereto or in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified, and none
of such information is or will be incomplete by omitting to state any material
fact necessary to make such information not misleading in light of the
circumstances under which made (it being recognized by the Paying Agent and the
Lenders that any projections and forecasts provided by the Company are based on
good faith estimates and assumptions believed by the Company to be reasonable as
of the date of the applicable projections or assumptions and that actual results
during the period or periods covered by any such projections and forecasts may
differ from projected or forecasted results).
55
9.18 Intellectual Property.
Each Loan Party and each Guarantor owns and possesses or has a license
or other right to use all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service xxxx rights and
copyrights as are necessary for the conduct of the businesses of the Loan
Parties or Guarantors, as applicable, without any infringement upon rights of
others which could reasonably be expected to have a Material Adverse Effect.
9.19 Burdensome Obligations.
No Loan Party or Guarantor is a party to any agreement or contract or
subject to any restriction contained in its organizational documents which could
reasonably be expected to have a Material Adverse Effect.
9.20 Labor Matters.
Except as set forth on Schedule 9.20, no Loan Party is subject to any
labor or collective bargaining agreement. There are no existing or threatened
strikes, lockouts or other labor disputes involving any Loan Party that singly
or in the aggregate could reasonably be expected to have a Material Adverse
Effect. Hours worked by and payment made to employees of the Loan Parties are
not in violation in any material respect of the Fair Labor Standards Act or any
other applicable law, rule or regulation dealing with such matters.
9.21 No Default.
No Event of Default or Unmatured Event of Default exists or would
result from the incurrence by any Loan Party or Guarantor of any Debt hereunder
or under any other Loan Document.
9.22 Subordinated Debt.
The subordination provisions of the Subordinated Debt are enforceable
against the holders of the Subordinated Debt by the Paying Agent and the
Lenders. All Obligations constitute senior Debt entitled to the benefits of the
subordination provisions contained in the Subordinated Debt. The Company
acknowledges that the Paying Agent and each Lender are entering into this
Agreement and are extending the Commitments and making the Loans in reliance
upon the subordination provisions of the Subordinated Debt and this Section
9.22.
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SECTION 10
AFFIRMATIVE COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all Obligations hereunder and under the other Loan Documents are paid in
full and all Letters of Credit and Existing Letters of Credit have been
terminated, the Company agrees that, unless at any time the Required Lenders
shall otherwise expressly consent in writing, it will:
10.1 Reports, Certificates and Other Information.
Furnish to the Paying Agent and each Lender:
10.1.1 Annual Report.
Promptly when available and in any event within 90
days after the close of each Fiscal Year: a copy of the annual
audited financial statements of the Company and its
Subsidiaries for such Fiscal Year, including therein
consolidated balance sheets and statements of earnings and
cash flows of the Company and its Subsidiaries as at the end
of such Fiscal Year, accompanied by a report and opinion of
Ernst & Young, or any of the four largest independent
certified public accounting firms in the United States, which
report and opinion shall not be subject to any "going concern"
or like qualification or exception.
10.1.2 Interim Reports.
Upon filing with the SEC, and in any event within 45
days after the end of each Fiscal Quarter, consolidated
balance sheets of the Company and its Subsidiaries as of the
end of such Fiscal Quarter, together with consolidated
statements of earnings and cash flows for such Fiscal Quarter
and for the period beginning with the first day of such Fiscal
Year and ending on the last day of such Fiscal Quarter,
together with a comparison of such financial statements with
the corresponding period of the previous Fiscal Year,
certified by a Senior Officer of the Company as having been
prepared in accordance with GAAP (subject to the absence of
footnotes and year-end audit adjustments).
10.1.3 Compliance Certificates.
Contemporaneously with the furnishing of a copy of
each annual audit report pursuant to Section 10.1.1 and each
set of quarterly statements pursuant to Section 10.1.2, a duly
completed compliance certificate in the form of Exhibit B,
with appropriate insertions, dated the date of such annual
report or such quarterly statements and signed by a Senior
Officer of the Company, containing a computation of each of
the financial ratios and restrictions set forth in Section
11.13 and to the effect that such officer has not become aware
of any Event of Default or Unmatured Event of Default that has
occurred and is continuing or, if there is any such event,
describing it and the steps, if any, being taken to cure it.
57
10.1.4 Reports to the SEC and to Shareholders.
Promptly upon the filing or sending thereof (unless
such documents, reports or communications are publicly
available on the SEC's internet website), copies of all
regular, periodic or special reports of any Loan Party filed
with the SEC; copies of all registration statements of any
Loan Party filed with the SEC (other than on Form S-8); and
copies of all proxy statements, financial statements or other
communications made to security holders generally, or filed
with any securities exchange.
10.1.5 Notice of Default, Litigation and ERISA Matters.
Within 5 Business Days, after becoming aware of any
of the following, written notice describing the same and the
steps being taken by the Company or the Subsidiary affected
thereby with respect thereto:
(a) the occurrence of an Event of Default or an
Unmatured Event of Default;
(b) any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the
Company to the Lenders which has been instituted or, to the
knowledge of the Company, is threatened against any Loan Party
or to which any of the properties of any thereof is subject
which could reasonably be expected to have a Material Adverse
Effect;
(c) the institution of any steps by any member of the
Controlled Group or any other Person to terminate any Pension
Plan in other than a standard termination, as defined under
Title IV of ERISA, or the failure of any member of the
Controlled Group to make a required contribution to any
Pension Plan (if such failure is sufficient to give rise to a
Lien under Section 302(f) of ERISA) or to any Multiemployer
Pension Plan, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the
Company furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could
result in the incurrence by any member of the Controlled Group
of any liability, fine or penalty (including any claim or
demand for withdrawal liability or partial withdrawal from any
Multiemployer Pension Plan), or any material increase in the
contingent liability of the Company with respect to any
post-retirement welfare benefit plan or other employee benefit
plan of the Company or another member of the Controlled Group,
or any notice that any Multiemployer Pension Plan is in
reorganization, that increased contributions may be required
to avoid a reduction in plan benefits or the imposition of an
excise tax if such increased contributions could reasonably be
expected to have a Material Adverse Effect, that any such plan
is or has been funded at a rate less than that required under
Section 412 of the Code, that any such plan is or may be
terminated in other than a standard termination, as defined
under Title IV of ERISA, or that any such plan is or may
become insolvent, or the occurrence of a Reportable Event as
described in Section 4043(b) of ERISA including without
limitation those events as to which the thirty (30) day notice
period is waived under Part 2615 of the regulations
promulgated by the PBGC under ERISA;
58
(d) any cancellation or material change in any
insurance maintained by any Loan Party, or the entering into
any material contract or undertaking that is not entered into
in the ordinary course of business; or
(e) any other event (including (i) any violation of
any Environmental Law or the assertion of any Environmental
Claim or (ii) the enactment or effectiveness of any law, rule
or regulation) which might reasonably be expected to have a
Material Adverse Effect.
10.1.6 Management Reports.
Promptly and in any event within 10 Business Days of
receipt thereof, copies of all detailed financial and
management reports submitted to the Company by independent
auditors (other than any routine communications between the
independent auditors and the audit committee) in connection
with each annual or interim audit made by such auditors of the
books of the Company or any of its Subsidiaries.
10.1.7 Projections.
Not later than January 31 of each Fiscal Year,
financial projections for the Company and its Subsidiaries for
such Fiscal Year (including quarterly operating and cash flow
budgets) prepared in a manner consistent with the projections
delivered by the Company to the Lenders prior to the Closing
Date or otherwise in a manner reasonably satisfactory to the
Paying Agent, accompanied by a certificate of a Senior Officer
of the Company on behalf of the Company to the effect that (a)
such projections were prepared by the Company in good faith,
(b) the Company has a reasonable basis for the assumptions
contained in such projections and (c) such projections have
been prepared in accordance with such assumptions. All parties
hereto acknowledge that the Company cannot and does not make
any warranty or assurance that any such projections will be
attained.
10.1.8 Subordinated Debt Notices.
Promptly following receipt, copies of (a) any notice
of default or acceleration received from any holder or trustee
of, under or with respect to any Subordinated Debt and (b) any
amendment, waiver, consent of other modification of any
documentation governing any Subordinated Debt.
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10.1.9 Other Information.
Promptly from time to time, such other information
concerning the Loan Parties and the Guarantors as any Lender
or the Paying Agent may reasonably request.
The Company hereby acknowledges that (a) the Paying Agent and/or BAS
will make available to the Lenders and the Issuing Lenders materials and/or
information provided by or on behalf of the Company hereunder (collectively,
"Company Materials") by posting the Company Materials on IntraLinks or another
similar electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Company or its securities) (each, a
"Public Lender"). The Company hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Company Materials that may be
distributed to the Public Lenders and that (w) all such Company Materials shall
be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean
that the word "PUBLIC" shall appear prominently on the first page thereof; (x)
by marking Company Materials "PUBLIC," the Company shall be deemed to have
authorized the Paying Agent, BAS, the Issuing Lenders and the Lenders to treat
such Company Materials as not containing any material non-public information
(although it may be sensitive and proprietary) with respect to the Company or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Company Materials constitute
Information, they shall be treated as set forth in Section 15.9); (y) all
Company Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Paying Agent
and BAS shall be entitled to treat any Company Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor." Notwithstanding the foregoing, the Company shall
be under no obligation to xxxx any Company Materials "PUBLIC".
10.2 Books, Records and Inspections.
Keep, and cause each other Loan Party and Guarantor to keep, its books
and records in accordance with sound business practices sufficient to allow the
preparation of financial statements in accordance with GAAP; permit, and cause
each other Loan Party and Guarantor to permit, at any reasonable time and with
reasonable notice (or at any time without notice if an Event of Default exists),
any Lender (at such Lender's own expense) or the Paying Agent or any
representative thereof (at the Paying Agent's own expense) to inspect the
properties and operations of the Loan Parties and the Guarantors; and permit,
and cause each other Loan Party to permit, at any reasonable time and with
reasonable notice (or at any time without notice if an Event of Default exists),
any Lender (at such Lender's own expense) or the Paying Agent or any
representative thereof (at the Paying Agent's own expense) to visit any or all
of its offices, to discuss its financial matters with its officers and its
independent auditors (and the Company hereby authorizes such independent
auditors to discuss such financial matters with any Lender or the Paying Agent
or any representative thereof), and to examine (and, at the expense of the Loan
Parties and Guarantors, photocopy extracts from) any of its books or other
records; and permit, and cause each other Loan Party and Guarantor to permit,
the Paying Agent and its representatives to inspect the Inventory and other
tangible assets of the Loan Parties and Guarantors, to perform appraisals of the
equipment of the Loan Parties and Guarantors, and to inspect, audit, check and
make copies of and extracts from the books, records, computer data, computer
programs, journals, orders, receipts, correspondence and other data relating to
Inventory, Accounts and any other collateral. All such inspections or audits by
the Paying Agent shall be at the Paying Agent's expense, provided that so long
as an Event of Default exists, such inspections or audits shall be at the
Company's expense and the Paying Agent shall be able to perform as many
inspections or audits as it desires during any such Event of Default.
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10.3 Maintenance of Property; Insurance.
(a) Keep, and cause each other Loan Party and Guarantor to keep, all
property useful and necessary in the business of the Loan Parties and the
Guarantors in good working order and condition, ordinary wear and tear excepted,
and from time to time make, or cause to be made, all needful repairs, renewals,
additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly conducted at all
times in accordance with customary and prudent business practices for similar
businesses.
(b) Maintain, and cause each other Loan Party and Guarantor to
maintain, with responsible insurance companies, such insurance coverage as may
be required by any law or governmental regulation or court decree or order
applicable to it (including, without limitation, liability insurance for the
directors and officers of such Loan Party or Guarantor) and such other
insurance, to such extent and against such hazards and liabilities as is
customarily maintained by companies similarly situated, but which shall insure
against all risks and liabilities of the type identified on Schedule 9.15 and
shall have insured amounts no less than, and deductibles no higher than, those
set forth on such schedule (as such schedule may change upon the reasonable
consent of the Paying Agent); and, upon request of the Paying Agent or any
Lender, furnish to the Paying Agent or such Lender a certificate setting forth
in reasonable detail the nature and extent of all insurance maintained by the
Loan Parties and the Guarantors. The Company shall cause each issuer of an
insurance policy to provide the Collateral Agent with an endorsement (i) showing
the Collateral Agent as lender loss payee or mortgagee, as applicable, with
respect to each policy of property or casualty insurance or business
interruption insurance and naming the Collateral Agent, for the benefit of the
Lenders, as an additional insured with respect to each policy of liability
insurance, (ii) providing that 30 days' notice will be given to the Collateral
Agent prior to any cancellation of, material reduction or change in coverage
provided by or other material modification to such policy and (iii) reasonably
acceptable in all other respects to the Collateral Agent.
(c) UNLESS THE COMPANY PROVIDES THE PAYING AGENT WITH EVIDENCE OF THE
INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE PAYING AGENT MAY, FOLLOWING
PRIOR NOTICE TO THE COMPANY, PURCHASE INSURANCE AT THE COMPANY'S EXPENSE TO
PROTECT THE COLLATERAL AGENT'S AND THE LENDERS' INTERESTS IN THE COLLATERAL.
THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY LOAN PARTY'S OR GUARANTOR'S
INTERESTS. THE COVERAGE THAT THE PAYING AGENT PURCHASES MAY NOT PAY ANY CLAIM
THAT IS MADE AGAINST ANY LOAN PARTY OR GUARANTOR IN CONNECTION WITH THE
COLLATERAL. THE COMPANY MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE PAYING
AGENT, BUT ONLY AFTER PROVIDING THE PAYING AGENT WITH EVIDENCE THAT THE COMPANY
HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE PAYING AGENT
PURCHASES INSURANCE FOR THE COLLATERAL, THE COMPANY WILL BE RESPONSIBLE FOR THE
COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY BE
IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE THE LOAN PARTIES AND
GUARANTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
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10.4 Compliance with Laws; Payment of Taxes and Liabilities.
(a) Comply, and cause each other Loan Party and Guarantor to comply, in
all material respects with all applicable laws, rules, regulations, decrees,
orders, judgments, licenses and permits, except where failure to comply could
not reasonably be expected to have a Material Adverse Effect; (b) without
limiting clause (a) above, ensure, and cause each other Loan Party and Guarantor
to ensure, that no person who owns a controlling interest in or otherwise
controls a Loan Party or Guarantor is or shall be (i) listed on the Specially
Designated Nationals and Blocked Person List maintained by the Office of Foreign
Assets Control ("OFAC"), Department of the Treasury, and/or any other similar
lists maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation or (ii) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation
or any other similar Executive Orders, (c) without limiting clause (a) above,
comply, and cause each other Loan Party and Guarantor to comply, with all
applicable Bank Secrecy Act ("BSA") and anti-money laundering laws and
regulations and (d) pay, and cause each other Loan Party and Guarantor to pay,
prior to delinquency, all taxes and other governmental charges against it or any
collateral, as well as claims of any kind which, if unpaid, could become a Lien
(other than Permitted Liens) on any of its property; provided that the foregoing
shall not require any Loan Party to pay any such tax or charge so long as it
shall contest the validity thereof in good faith by appropriate proceedings and
shall set aside on its books adequate reserves with respect thereto in
accordance with GAAP and, in the case of a claim which could become a Lien
(other than a Permitted Lien) on any collateral, such contest proceedings shall
stay the foreclosure of such Lien (other than a Permitted Lien) or the sale of
any portion of the collateral to satisfy such claim.
10.5 Maintenance of Existence, etc.
(a) Maintain and preserve, and (subject to Section 11.5) cause each
other Loan Party and Guarantor to maintain and preserve, (i) its existence and
good standing in the jurisdiction of its organization, (ii) its qualification to
do business and good standing in each jurisdiction where the nature of its
business makes such qualification necessary (other than such jurisdictions in
which the failure to be qualified or in good standing could not reasonably be
expected to have a Material Adverse Effect, and other than in connection with
any merger permitted pursuant to Sections 11.4 or 11.6 other than any
dissolution or liquidations of any Subsidiary if the assets of such Subsidiary
are transferred to the Company or any Guarantor in connection with such
dissolution or liquidation) and (iii) the rights, licenses, permits (including
those required under applicable Environmental Laws), franchises, patents,
copyrights, trademarks and trade names material to the conduct of its
businesses; provided, however, that the Loan Parties and the Guarantors shall
not be required to preserve any such right, license or franchise, or its
corporate, partnership or other existence, if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries and Guarantors,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Paying Agent or the Lenders; and (b) defend all of the foregoing
against all claims, actions, demands, suits or proceedings at law or in equity
or by or before any governmental instrumentality or other agency or regulatory
authority.
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10.6 Use of Proceeds.
Use the proceeds of the Loans, and the Letters of Credit and Existing
Letters of Credit, solely to refinance existing indebtedness, for working
capital purposes, for Permitted Acquisitions, for Capital Expenditures, for
Special Payments, and for other general business purposes; and not use or permit
any proceeds of any Loan to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of "purchasing or carrying"
any Margin Stock in any manner that would constitute a violation of Regulation
U.
10.7 Employee Benefit Plans.
(a) Maintain, and use good faith efforts to cause each other member of
the Controlled Group to maintain, each Pension Plan in substantial compliance
with all applicable requirements of law and regulations.
(b) Make, and use good faith efforts to cause each other member of the
Controlled Group to make, on a timely basis, all required contributions to any
Multiemployer Pension Plan.
(c) Not, and use good faith efforts to not permit any other member of
the Controlled Group to (i) seek a waiver of the minimum funding standards of
ERISA, (ii) terminate or withdraw from any Pension Plan or Multiemployer Pension
Plan, (iii) take any other action with respect to any Pension Plan that would
reasonably be expected to entitle the PBGC to terminate, impose liability in
respect of, or cause a trustee to be appointed to administer, any Pension Plan,
or (iv) permit to occur a Reportable Event as described in Section 4043(b) of
ERISA including without limitation those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA, unless the actions or events described in clauses (i), (ii),
(iii) and (iv) individually or in the aggregate would not have a Material
Adverse Effect.
10.8 Environmental Matters.
If any release or threatened release or other disposal of Hazardous
Substances shall occur or shall have occurred on any real property or any other
assets of any Loan Party or Guarantor, the Company shall, or shall cause the
applicable Loan Party or Guarantor to, cause the prompt containment and removal
of such Hazardous Substances and the remediation of such real property or other
assets as necessary to comply with all Environmental Laws and to preserve the
value of such real property or other assets. Without limiting the generality of
the foregoing, the Company shall, and shall cause each other Loan Party and
Guarantor to, comply with any Federal or state judicial or administrative order
requiring the performance at any real property of any Loan Party or Guarantor of
activities in response to the release or threatened release of a Hazardous
Substance. To the extent that the transportation of Hazardous Substances is
permitted by this Agreement, the Company shall, and shall cause its Subsidiaries
to, dispose of such Hazardous Substances, or of any other wastes, only at
licensed disposal facilities operating in compliance with Environmental Laws.
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10.9 Further Assurances.
(a) Within 30 days from the request therefor by the Paying Agent, take,
and cause each other Loan Party and Guarantor to take, such actions as are
necessary or as the Paying Agent or the Required Lenders may reasonably request
from time to time to give effect to the intent of, and to aid in the exercise
and enforcement of the rights and remedies of the Paying Agent, the Collateral
Agent and the Lenders under the Loan Documents, and to ensure that the
Obligations of each Loan Party and Guarantor under the Loan Documents are
secured by substantially all of the assets of the Company, each Domestic
Subsidiary and each Joint Venture which meets the definition of a Guarantor (as
well as all Capital Securities of each Domestic Subsidiary and each such Joint
Venture and 65% of all Capital Securities of each direct Foreign Subsidiary) and
guaranteed by each Domestic Subsidiary and each Joint Venture which meets the
definition of a Guarantor (including, within 30 days after the acquisition or
creation thereof, any Domestic Subsidiary or Joint Venture acquired or created
after the Closing Date), in each case as the Paying Agent may determine,
including without limitation (i) the execution and delivery of guaranties,
security agreements, pledge agreements, Mortgages, financing statements and
other documents, and the filing or recording of any of the foregoing and (ii)
the delivery of certificated securities and other collateral with respect to
which perfection is obtained by possession. Notwithstanding the foregoing, the
Company shall not be required to pledge the Capital Stock of any future Domestic
Subsidiary so long as those entities do not have any assets or operations valued
in excess of $100,000.
(b) The Company shall notify the Lenders and the Paying Agent, within
ten (10) days after the occurrence thereof, of the acquisition of any material
property by the Company or any Guarantor that is not subject to the existing
Collateral Documents, any Person becoming a Subsidiary or the creation of any
Joint Venture and any other event or condition, other than the passage of time,
that may require additional action of any nature in order to create or preserve
the effectiveness and perfected status of the liens and security interests of
the Lenders and the Collateral Agent with respect to such property pursuant to
the Collateral Documents, including without limitation delivering the originals
of all promissory notes and other instruments payable to the Company or any
Guarantor to the Collateral Agent, delivering the originals of all stock
certificates or other certificates evidencing the Capital Securities owned by
the Company or any Guarantor at any time, which are required by the foregoing
Section 10.9(a) to be pledged to the Collateral Agent for the benefit of the
Lenders and cause any new Subsidiary to become a Guarantor pursuant to the
Guaranty and Collateral Agreement.
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(c) Within 120 days of the Closing Date, the Company shall (i) either
dissolve Hawaii Parking and/or Tower Parking or merge Hawaii Parking and/or
Tower Parking into a Guarantor and (ii) provide the Paying Agent with
satisfactory evidence of any such dissolution or merger, as appropriate.
SECTION 11
NEGATIVE COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all Obligations (other than contingent and unmatured indemnification
obligations) hereunder and under the other Loan Documents are paid in full and
all Letters of Credit and Existing Letters of Credit have been terminated, the
Company agrees that, unless at any time the Required Lenders shall otherwise
expressly consent in writing, it will:
11.1 Debt.
Not, and not permit any other Loan Party to, create, incur, assume or
suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt of any Guarantor owing to the Company or to any other
Guarantor; provided that to the extent such Debt shall be evidenced by any note
or instrument, such instrument shall be a demand note in form and substance
reasonably satisfactory to the Collateral Agent and pledged and delivered to the
Collateral Agent pursuant to the Collateral Documents as additional collateral
security for the Obligations, and the obligations under such demand note shall
be subordinated to the Obligations of the Company hereunder in a manner
reasonably satisfactory to the Paying Agent;
(c) Subordinated Debt, provided that (A) immediately before and after
(on a pro forma basis acceptable to the Paying Agent and supported by such
certificates required by the Paying Agent) the incurrence of any such
Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist
and the Company shall be in pro forma compliance with all financial and other
covenants contained herein as of the date of incurrence of such Subordinated
Debt and (B) all agreements, documents and instruments relating to such
Subordinated Debt shall have been delivered to and approved by the Paying Agent
and the Required Lenders prior to the incurrence of such Subordinated Debt (it
being understood and agreed however that the Indebtedness under the 9 1/4% Notes
shall only be permitted under this Section 11.1 until the date thirty five (35)
days after the Closing Date);
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(d) Hedging Obligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or
refinancing thereof so long as the principal amount thereof is not increased
(and as such amount is reduced from time to time) and no modifications of the
terms thereof which are less favorable to the Company or more restrictive on the
Company in any material manner shall be permitted;
(f) Contingent Liabilities arising with respect to customary
indemnification obligations in favor of sellers in connection with Permitted
Acquisitions and purchasers in connection with dispositions permitted under
Section 11.4;
(g) Earnouts with respect to Permitted Acquisitions made by the
Company;
(h) Trade accounts payable and accrued expenses arising in the
ordinary course which are current or past due only in an amount which is not
material in the aggregate for the Company and its Subsidiaries on a consolidated
basis, or which are being contested in good faith by appropriate proceedings and
for which adequate reserves are maintained on the books of the Company;
(i) Debt which is non-recourse to the Company or its Subsidiaries,
provided that the aggregate amount of such non-recourse Indebtedness does not
exceed $10,000,000 and such non-recourse terms and the other terms of such
financing are acceptable to the Paying Agent;
(j) Debt incurred to finance insurance premiums in the ordinary course
of business consistent with past practices of the Company;
(k) Debt of Subsidiaries and Joint Ventures which are not Guarantors
owing to the Company or a Guarantor not exceeding an aggregate amount equal to
the book value of five percent (5%) of Total Assets; provided, that any such
Debt shall reduce, dollar for dollar, the available transactions permitted by
Section 11.6(g);
(l) Debt represented by the subtraction of Adjusted Off-Balance Sheet
Liabilities from Off-Balance Sheet Liabilities;
(m) Debt (other than Debt to the Principals) other than as described
in clauses (a) through (l) above and (o) below not exceeding an aggregate amount
equal to the book value of five percent (5%) of Total Assets, provided that not
more than 50% of the Debt incurred or otherwise outstanding pursuant to this
clause (m) may be secured by Permitted Liens;
(n) Debt which may otherwise be permitted pursuant to Section 11.6; and
(o) Debt arising from Ordinary Course Capital Leases.
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11.2 Liens.
Not, and not permit any other Loan Party to, create or permit to exist
any Lien on any of its real or personal properties, assets or rights of
whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens arising under the Loan Documents;
(b) Liens imposed by law (other than liens imposed by ERISA or Section
412 of the Code), carriers', warehousemen's or mechanic's Liens, operators' or
drillers' Liens and Liens to secure claims for labor, material or supplies
arising in the ordinary course of business, but only to the extent that payment
thereof shall not at the time be due or shall be contested in good faith by
appropriate proceedings diligently conducted, with respect to which appropriate
reserves have been set aside and as to which there has been no seizure of or
foreclosure upon assets subject to such Liens;
(c) deposits or pledges to secure payment of worker's compensation,
unemployment insurance, old age pensions or other social security, or to secure
the performance of bids, tenders, contracts (other than those relating to
borrowed money) or leases or to secure statutory obligations or surety or appeal
bonds, or to secure indemnity, performance or other similar bonds in the
ordinary course of business, or in connection with contests, to the extent that
payment thereof shall not at the time be due or shall be contested in good faith
by appropriate proceedings diligently conducted and there have been set aside on
its books appropriate reserves with respect thereto;
(d) Liens securing taxes, assessments, levies or other governmental
charges which are not overdue or which, in an amount not exceeding $2,000,000 in
the aggregate, are being contested in good faith by appropriate proceedings
diligently conducted, with respect to which reasonable reserves have been set
aside and as to which there has been no seizure of or foreclosure upon assets
subject to the Liens;
(e) Liens consisting of encumbrances, easements or reservations of, or
rights of others for, rights-of-way, sewers, electric lines, telecommunications
lines and other similar purposes, zoning restrictions, restrictions on the use
of real property and minor defects and irregularities in the title thereto, and
other similar encumbrances, none of which in the reasonable opinion of the
Paying Agent interferes with the use of the property subject thereto by the
Company or such Subsidiary in the ordinary conduct of its business;
(f) Liens described on Schedule 11.2 as of the Closing Date, and any
extensions or renewals of the foregoing, provided that neither the Debt secured
by any such existing Liens nor the property subject thereto shall increase;
(g) Liens on the daily revenues in favor of Persons other than the
Company or its Affiliates who are parties to the Facility Leases and Facility
Management Agreements for the amounts due to them pursuant thereto;
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(h) purported Liens in the ordinary course of business on fixtures to
the extent applicable law permits a mortgagee to claim an interest therein,
provided that such purported Liens do not secure any Debt of the Company or any
of its Affiliates;
(i) any Lien created to secure payment of a portion of the purchase
price of, or existing at the time of acquisition of, any tangible fixed asset
(including Liens granted in connection with Ordinary Course Capital Leases)
acquired by the Company or any of its Subsidiaries, may be created or suffer to
exist upon such tangible fixed asset if the outstanding principal amount of the
Debt secured by such Lien does not exceed the purchase price paid by the Company
or such Subsidiary for such tangible fixed asset provided that (i) such Lien
does not encumber any other asset at any time owned by the Company or such
Subsidiary, (ii) not more than one such Lien shall encumber such tangible fixed
asset at any one time, and (iii) the aggregate amount of Debt secured by all
such Liens shall not exceed the amounts permitted by Sections 11.1(e) and (m)
(j) Liens on unearned insurance premiums to secure Debt referred to in
Section 11.1(k)
(k) Liens arising by applicable law in respect of employees' wages,
salaries or commissions not overdue; and
(1) Liens arising out of judgments or awards not exceeding $2,000,000
in the aggregate against the Company or its Subsidiaries with respect to which
the Company or such Subsidiary shall be in good faith prosecuting an appeal or a
proceeding or review and the enforcement of such Lien is stayed pending such
appeal or review.
11.3 Restricted Payments.
Not, and not permit any other Loan Party to, make, pay, declare, or
authorize any dividend, payment or other distribution in respect of any class of
its Capital Securities or any dividend, payment or distribution in connection
with the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of its Capital Securities, other than such dividends,
payments or other distributions made (i) to the extent payable solely in shares
of Capital Securities (other than Disqualified Stock) of the Company, (ii) as
permitted pursuant to Section 11.6, or (iii) to the extent that the same
constitute Special Payments made in compliance with the definition of such term.
The Company will not issue Disqualified Stock.
11.4 Mergers, Consolidations, Sales.
(a) Not, and not permit any other Loan Party to, make any Acquisition;
nor merge or consolidate or amalgamate with any other Person or take any other
action having a similar effect, nor enter into any joint venture or similar
arrangement with any other Person, except (i) any Acquisition by the Company or
any Guarantor where (collectively, "Permitted Acquisitions"):
(A) the business or division acquired are for use, or the
Person acquired is engaged, in businesses similar to those engaged in by the
Loan Parties on the Closing Date;
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(B) immediately before and after giving effect to such
Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(C) the aggregate consideration to be paid by the Loan
Parties (including any Debt assumed or issued in connection therewith, the
amount thereof to be calculated in accordance with GAAP) in connection with such
Acquisition (or any series of related Acquisitions) shall not exceed $5,000,000,
and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(D) immediately after giving effect to such Acquisition,
the Company is in pro forma compliance with all the financial ratios and
restrictions set forth in Section 11.13;
(E) in the case of the Acquisition of any Person,
the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after
giving effect to the working capital needs of the acquired business, the
Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior to such Acquisition, the Paying
Agent shall have received complete executed or conformed copies of each material
document, instrument and agreement to be executed in connection with such
Acquisition together with all lien search reports and lien release letters and
other documents as the Paying Agent may require to evidence the termination of
Liens on the assets or business to be acquired, provided that the Lien
termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such
Acquisition, the Paying Agent shall have received an acquisition summary with
respect to the Person and/or business or division to be acquired, such summary
to include a reasonably detailed description thereof (including financial
information) and operating results (including financial statements for the most
recent 12 month period for which they are available and as otherwise available),
the material terms and conditions, including economic terms, of the proposed
Acquisition, and the Company's calculation of pro forma EBITDA relating thereto;
(I) the Paying Agent and Required Lenders shall have
approved the Company's computation of pro forma EBITDA; and
(J) consents have been obtained in favor of the
Collateral Agent and the Lenders to the collateral assignment of rights and
indemnities under the related acquisition documents and opinions of counsel for
the Loan Parties and (if delivered to the Loan Party) the selling party in favor
of the Collateral Agent and the Lenders have been delivered;
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and (ii) as maybe otherwise permitted pursuant to Sections 11.6, 11.10(b)
and 11.10(1).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all
or any portion of its business, assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, whether in one or a series of
transactions, other than inventory sold in the ordinary course of business upon
customary credit terms and sales of material or equipment no longer useful in
the business, and shall not permit or suffer any Subsidiary to do any of the
foregoing (an "Asset Disposition") provided, however, that this Section 11.4(b)
shall not prohibit any sale, lease, license, transfer, assignment or other
disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate
book value (disregarding any write-downs of such book value other than ordinary
depreciation and amortization) of all of the business, assets, rights, revenues
and property disposed of after the Closing Date of this Agreement (other than in
reliance on clauses (ii) and (iii) below) shall be less than 2% of the Total
Assets at such time and if, immediately before and after such transaction, no
Unmatured Event of Default or Event of Default shall exist, (ii) sales of
equipment as to which proceeds are used within 180 days to purchase equipment of
at least equivalent value to those sold and if, immediately before and after
such transaction, no Unmatured Event of Default or Event of Default shall exist,
(iii) sales as to which proceeds are used to make optional repayments on the
Revolving Loans, provided that such prepayments on the Revolving Loans shall
also permanently reduce the Revolving Commitment by the amount of such payments,
(iv) investments which consist of transfers of assets instead of cash and which
are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or
advance permitted pursuant to Section 11.10; provided, however, in the case of
any of the foregoing permitted sales, leases, licenses, transfers, assignments
or other dispositions described in clauses (i), (ii) and (iii) the Company shall
not, and shall not permit any of its Subsidiaries to, consummate an Asset
Disposition unless (A) the Company (or the Subsidiary, as the case may be)
receives consideration at the time of such Asset Disposition at least equal to
the fair market value (as determined by the Board of Directors of such Person
and evidenced by a resolution of the Board of Directors of such Person set forth
in an officer's certificate delivered to the Paying Agent) of the assets and (B)
at least 75% of the consideration therefore received by the Company or such
Subsidiary is in the form of cash; provided that the amount of (x) any
liabilities (as shown on the Company's or such Subsidiary's most recent balance
sheet), of the Company or any Subsidiary that are assumed by the transferee of
any such assets such that the Company or such Subsidiary have no further
liability and (y) any securities, notes or other obligations received by the
Company or any such Subsidiary from such transferee that are converted by the
Company or such Subsidiary into cash (to the extent of the cash received), shall
be deemed to be cash for purposes of this provision and the definition of Net
Cash Proceeds, and (C) the Collateral Agent promptly shall obtain a first
priority security interest in any non-cash consideration for any Asset
Disposition.
11.5 Modification of Organizational Documents.
Not permit the charter, by-laws or other organizational documents of
any Loan Party to be amended or modified in any way which could reasonably be
expected to materially adversely affect the interests of the Lenders.
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11.6 Transactions with Affiliates.
Not, and not permit any other Loan Party to, take any actions, nor
enter into any transactions, of the types described in Sections 11.1, 11.2,
11.3, 11.4, 11.10, 11.14 or 11.15, directly or indirectly, with, or for the
benefit of, the Principals and any other Affiliates of the Company (each of the
foregoing, an "Affiliate Transaction") except as may otherwise be specifically
permitted by those sections, and except as follows:
(a) transactions between or among the Company and/or the Guarantors
shall be permitted;
(b) any Subsidiary may merge with or into another Subsidiary or into
the Company, provided that (i) there is no Unmatured Event of Default or Event
of Default either existing before, or which would arise from, such merger, (ii)
if any such merger involves a Guarantor, the Guarantor shall be the surviving
Person, (iii) if any such merger involves the Company, the Company shall be the
surviving Person and (iv) if any such merger involves the Company or any
Guarantor, the net worth of the Company or such Guarantor involved in such
merger immediately after the merger would be equal to or greater than its net
worth immediately preceding such merger;
(d) upon notice to and consent of the Paying Agent, any Subsidiary may
merge with or into a newly-created Subsidiary which is incorporated, formed or
otherwise organized pursuant to the laws of the State of Delaware, solely for
the purpose of re-organizing the previously existing Subsidiary under the laws
of the State of Delaware, provided that (i) there is no Unmatured Event of
Default or Event of Default either existing before, or which would arise from,
such merger, (ii) if any such merger involves a Guarantor, the surviving
Subsidiary shall become a Guarantor, and the net worth of such surviving
Subsidiary immediately after the merger shall be equal to or greater than the
Guarantor's net worth immediately preceding such merger, and (iii) all other
terms and conditions of such merger shall be acceptable to the Paying Agent in
its reasonable discretion;
(e) transfers of assets, including without limitation Capital
Securities, between Guarantors or between the Company and Guarantors shall be
permitted, provided that the Collateral Agent maintains its first priority
perfected Lien on any and all collateral security;
(f) Affiliate Transactions, Facility Management Agreements and Facility
Leases entered into in the ordinary course of business shall be permitted that
are on terms that are no less favorable to the Company or the relevant
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Subsidiary with an unrelated Person; and
(g) the Company or any Guarantor may purchase or otherwise acquire any
Capital Securities of or other ownership interest in, or debt securities of or
other evidences of Debt of, any Subsidiary or Joint Venture that is not a
Guarantor; or make any loan or advance of any of its funds or property or make
any other extension of credit to, or make any other investment or contribution
or acquire any interest whatsoever in, any Subsidiary or Joint Venture that is
not a Guarantor, not exceeding an aggregate amount equal to the book value of 3%
of Total Assets; provided, that any of the foregoing transactions shall reduce,
dollar for dollar, the available Debt permitted by Section 11.1(1).
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11.7 Unconditional Purchase Obligations.
Not, and not permit any other Loan Party to, enter into or be a party
to any contract for the purchase of materials, supplies or other property or
services if such contract requires that payment be made by it regardless of
whether delivery is ever made of such materials, supplies or other property or
services.
11.8 Inconsistent Agreements.
Not, and not permit any other Loan Party to, enter into any agreement,
including without limitation any amendments to existing agreements, containing
any provision which would (a) be violated or breached by any borrowing by the
Company hereunder or by the performance by any Loan Party of any of its
Obligations hereunder or under any other Loan Document, (b) prohibit any Loan
Party from granting to the Collateral Agent and the Lenders, a Lien on any of
its assets, now or hereafter acquired, or (c) (except with respect to the 9 1/4%
Note Documents) create or permit to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends or make other
distributions to the Company or any other Subsidiary, or pay any Debt owed to
the Company or any other Subsidiary, (ii) make loans or advances to any Loan
Party or (iii) transfer any of its assets or properties to any Loan Party; other
than (A) customary restrictions and conditions contained in agreements relating
to the sale of all or a substantial part of the assets of any Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the
Subsidiary to be sold and such sale is permitted hereunder (B) restrictions or
conditions imposed by any agreement relating to purchase money Debt, Capital
Leases and other secured Debt permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Debt and (C)
customary provisions in leases, Joint Venture agreements (created in the
ordinary course consistent with past practices) and other contracts restricting
the assignment thereof. The Company shall use its best efforts to avoid entering
into Joint Venture agreements which would violate the foregoing terms of this
Section 11.8.
11.9 Business Activities; Issuance of Equity.
Not, and not permit any other Loan Party to, engage in any line of
business other than the businesses engaged in on the date hereof and businesses
reasonably related thereto. Not, and not permit any other Loan Party to, issue
any Capital Securities other than (a) any issuance of shares of the Company's
Capital Securities (provided any such issued shares shall not be Disqualified
Stock), or (b) any issuance by a Subsidiary to the Company or another Subsidiary
in accordance with Section 11.3.
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11.10 Investments, Loans and Advances.
Not, and not permit any other Loan Party to, purchase or otherwise
acquire any Capital Securities of or other ownership interest in, or debt
securities of or other evidences of Debt of, any other Person; nor make any loan
or advance of any of its funds or property or make any other extension of credit
to, or make any other investment or contribution or acquire any interest
whatsoever in, any other Person; nor incur any Contingent Liability except to
the extent permitted under Section 11.1 nor permit any Subsidiary to do any of
the foregoing; other than:
(a) contributions by the Company to the capital of any Wholly-Owned
Subsidiary, or by any Subsidiary to the capital of any other domestic
Wholly-Owned Subsidiary, so long as the recipient of any such capital
contribution has guaranteed the Obligations and such guaranty is secured by a
pledge of all of its Capital Securities and substantially all of its real and
personal property, in each case in accordance with Section 10.8;
(b) contributions to non-Wholly-Owned Subsidiaries and Joint Ventures
in the ordinary course of business consistent with past practices not in excess
of $2,000,000 in the aggregate;
(c) investments constituting Debt permitted by Section 11.1
(d) Contingent Liabilities constituting Debt permitted by
Section 11.1 or Liens permitted by Section 11.2
(e) investments in Cash Equivalents;
(f) bank deposits in the ordinary course of business;
(g) investments in securities of Account Debtors received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such account debtors;
(h) investments to consummate Permitted Acquisitions;
(i) those investments, loans, advances and other transactions described
in Schedule 11.10 as of the Closing Date, but no extension or renewal thereof
shall be permitted;
(j) extensions of trade credit made in the ordinary course of business
on customary credit terms and commissions, relocation, travel and similar
advances made to officers and employees and to consultants for consulting
services and reimbursable expenses, all in the ordinary course of business,
provided that advances to officers, employees and to consultants for purposes
other than commission, relocation and travel shall not exceed $250,000 in
aggregate at any time outstanding;
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(k) acquire and own stock, obligations or securities received in
settlement of debts owing to the Company or its Subsidiaries or as consideration
for Asset Dispositions otherwise permitted under Section 11.4;
(l) advances made by the Company or its Subsidiaries or Joint Ventures
to clients in connection with Facility Leases and Facility Management Agreements
of the Company in the ordinary course of business consistent with past
practices;
(m) other loans, advances or investments (except to (i) the Principals,
or (ii) other Affiliates of the Company) in an aggregate amount not to exceed
three percent (3%) of Total Assets; and
(n) as otherwise permitted pursuant to Sections 11.6.
provided that (x) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; (y) no new Investment which would otherwise be permitted
by clause (c), (d), or (h) shall be permitted to be made if, immediately before
or after giving effect thereto, any Event of Default or Unmatured Event of
Default exists.
11.11 Restriction of Amendments to Certain Documents.
Not amend or otherwise modify, or waive any rights under, the
Subordinated Debt Documents if, in any case, such amendment, modification or
waiver could reasonably be expected to be material and adverse to the interests
of the Lenders.
11.12 Fiscal Year.
Not change its Fiscal Year.
11.13 Financial Covenants.
11.13.1 Fixed Charge Coverage Ratio.
Not permit the Fixed Charge Coverage Ratio to be less
than 1.75 to 1.0 as of the end of any Fiscal Quarter ending
prior to June 30, 2007, and not permit the Fixed Charge
Coverage Ratio as of the end of any Fiscal Quarter ending
thereafter to be less than 2.0 to 1.0.
11.13.2..Total Debt to EBITDA Ratio.
Not permit the Total Debt to EBITDA Ratio to exceed
(i) 4.5 to 1.0 as of the end of any Fiscal Quarter ending
prior to June 30, 2007, (ii) 4.25 to 1.0 as of the end of any
Fiscal Quarter ending between June 30, 2007 and June 29, 2008,
(iii) 4.0 to 1.0 as of the end of any Fiscal Quarter ending
between June 30, 2008 and June 29, 2009 and (iv) 3.75 to 1.0
as of the end of any Fiscal Quarter ending after June 29,
2009.
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11.14 Repayment or Redemption of Debt; Cancellation of Debt.
Not make, or permit any Subsidiary to make, any optional payment,
defeasance (whether a covenant defeasance, legal defeasance or other
defeasance), prepayment or redemption of any of its or any of its Subsidiaries'
Debt (except for (x) payments made in Capital Securities which could not create
an Event of Default, (y) except for Ordinary Course Lease Termination Payments
and (z) prepayments or any redemption of the Company's or any of its
Subsidiaries' Subordinated Debt); or amend or modify, or consent or agree to any
amendment or modification of, any instrument or agreement under which any of its
Subordinated Debt is issued or created or otherwise related thereto; or enter
into any agreement or arrangement providing for any defeasance of any kind of
any of its Subordinated Debt; except as may otherwise be permitted pursuant to
Sections 11.3 and 11.6. Not, and not permit any other Loan Party to, cancel any
claim or debt owing to it, except for reasonable consideration or in the
ordinary course of business.
11.15 Affiliate Amounts.
Except as set forth on Schedule 11.15, the Company will not pay, or
permit any Subsidiary to pay, directly or indirectly, any management,
consulting, investment banking, advisory or other fees or payments, fees or
payments under any leases, any expense reimbursement or similar payments, or any
other payments of any kind (including, without limitation, any amounts paid or
payable by the Company or any of its Subsidiaries to the Principals and/or to
any other Affiliates of the Company, in respect of overhead expense allocations
among members of the Affiliate corporate group) to the Principals and/or to any
other Affiliates of the Company, other than the Company or any Guarantor. The
foregoing sentence shall not restrict the Company from (i) paying salaries,
bonuses or other compensation to, or reimbursing travel or other business
expenses of, officers or employees (other than any such Person who is also a
Principal) in the ordinary course of business, or (ii) reimbursing travel or
other business expenses of any officer or director of the Company who is also a
Principal, to the extent such reimbursements or such expenses are customarily
paid or reimbursed for all officers and/or directors (as applicable) of the
Company in the ordinary course of the Company's business, consistent with past
practices, or (iii) making Special Payments in compliance with the definition of
such term.
SECTION 12
EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of each Lender to make its Loans and participate in the
Existing Letters of Credit, and of any Issuing Lender to issue Letters of
Credit, is subject to the following conditions precedent:
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12.1 Initial Credit Extension.
The obligation of the Lenders to make the initial Loans and to
participate in the Existing Letters of Credit, and the obligation of the
applicable Issuing Lender to issue its initial Letter of Credit (whichever first
occurs) is, in addition to the conditions precedent specified in Section 12.2,
subject to the conditions precedent that the Paying Agent shall received all of
the following, each duly executed and dated the Closing Date (or such earlier
date as shall be satisfactory to the Paying Agent), in form and substance
reasonably satisfactory to the Paying Agent (and the date on which all such
conditions precedent have been satisfied or waived in writing by the Paying
Agent and the Lenders is called the "Closing Date"):
12.1.1 Notes.
A Note for each Lender.
12.1.2 Authorization Documents.
For the Company and each Guarantor, such Person's (a)
charter (or similar formation document), certified by the
appropriate governmental authority; (b) good standing
certificates in its state of incorporation (or formation) and
in each other state requested by the Paying Agent; (c) bylaws
(or similar governing document); (d) resolutions of its board
of directors (or similar governing body) approving and
authorizing such Person's execution, delivery and performance
of the Loan Documents to which it is party and the
transactions contemplated thereby; and (e) signature and
incumbency certificates of its officers executing any of the
Loan Documents (it being understood that the Paying Agent and
each Lender may conclusively rely on each such certificate
until formally advised by a like certificate of any changes
therein), all certified by its secretary or an assistant
secretary (or similar officer) as being in full force and
effect without modification.
12.1.3 Consents, etc.
Certified copies of all documents evidencing any
necessary corporate or partnership action, consents and
governmental approvals (if any) required for the execution,
delivery and performance by the Company and each Guarantor of
the documents referred to in this Section 12.
12.1.4 Guaranty and Collateral Agreement.
A counterpart of the Guaranty and Collateral
Agreement executed by the Company and each Guarantor, together
with all instruments, transfer powers and other items required
to be delivered in connection therewith.
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12.1.5 Perfection Certificate.
A Perfection Certificate completed and executed by
the Company and each Guarantor.
12.1.6 Opinions of Counsel.
Opinions of counsel for the Company and each
Guarantor, including local counsel reasonably requested by the
Paying Agent.
12.1.7 Insurance.
Evidence of the existence of insurance required to be
maintained pursuant to Section 10.3(b), together with evidence
that the Collateral Agent has been named as a lender's loss
payee and an additional insured on all related insurance
policies.
12.1.8 Copies of Documents.
Copies of the documentation governing any
Subordinated Debt certified by the secretary or assistant
secretary (or similar officer) of the Company as being true,
accurate and complete.
12.1.9 Payment of Fees.
Evidence of payment by the Company of all accrued and
unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with all Attorney Costs
of the Paying Agent and the Joint Lead Arrangers to the extent
invoiced prior to the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute the Paying
Agent's reasonable estimate of Attorney Costs incurred or to
be incurred by the Paying Agent through the closing
proceedings (provided that such estimate shall not thereafter
preclude final settling of accounts between the Company and
the Paying Agent).
12.1.10 Solvency Certificate.
A Solvency Certificate executed by a Senior Officer
of the Company.
12.1.11 Pro Forma.
A consolidated pro forma balance sheet of the Company
as at June 30, 2006, adjusted to give effect to the
consummation of the financings contemplated hereby as if such
financing had occurred on such date, consistent in all
material respects with the sources and uses of cash as
previously described to the Lenders and the forecasts
previously provided to the Lenders.
12.1.12 Search Results; Lien Terminations.
Certified copies of Uniform Commercial Code search
reports dated a date reasonably near to the Closing Date,
listing all effective financing statements which name the
Company and each Guarantor (under their present names and any
previous names) as debtors, together with (a) copies of such
financing statements and, where feasible prior to the Closing
Date, together with Uniform Commercial Code or other
appropriate termination statements and documents effective to
evidence the foregoing (other than Liens permitted by Section
11.2) and such other Uniform Commercial Code termination
statements as the Paying Agent may reasonably request and (b)
assignments from LaSalle, as administrative agent under the
Existing Agreement to the Collateral Agent of all financing
statements filed in connection with the Existing Agreement.
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12.1.13 Filings, Registrations and Recordings.
The Collateral Agent shall have received each
document (including Uniform Commercial Code financing
statements) required by the Collateral Documents or under law
or reasonably requested by the Collateral Agent to be filed,
registered or recorded in order to create in favor of the
Collateral Agent, for the benefit of the Lenders, a perfected
Lien on the collateral described therein, prior to any other
Liens (subject only to Liens permitted pursuant to Section
11.2), in proper form for filing, registration or recording.
12.1.14 Closing Certificate, Consents and Permits.
A certificate executed by an officer of the Company
on behalf of the Company in such capacity but not individually
certifying the matters set forth in Section 12.2.1 as of the
Closing Date.
12.1.15 Obligations Senior.
The Paying Agent shall have received a certificate
from a Senior Officer of the Company (a) certifying, assuming
the Company has borrowed Loans and/or has Letters of Credit
issued on its behalf in an aggregate amount of $135,000,000 on
the Closing Date, that such Loans and/or Letters of Credit in
an aggregate amount of $135,000,000 would be permitted under
the 9 1/4% Note Indenture and would constitute "Senior Debt"
and "Designated Senior Debt" under and as defined in the 9
1/4% Note Indenture and (b) containing a calculation prepared
by a Senior Officer of the Company of the Fixed Charge
Coverage Ratio (as defined in the 9 1/4% Note Indenture)
satisfactory to the Paying Agent demonstrating that the Fixed
Charge Coverage Ratio, after giving effect to the incurrence
of Loans and/or the issuance of Letters of Credit in an
aggregate amount of $135,000,000 on the Closing Date, would be
at least 2.0 to 1.0 on a pro forma basis, as calculated in
accordance with the terms of the 9 1/4% Note Indenture.
12.1.16 Redemption Notice.
The Paying Agent shall received a copy of the notice
of redemption that the Company caused to be mailed to each
holder of the 9 1/4% Notes on the Closing Date.
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12.1.17 Other.
Such other documents as the Paying Agent or any
Lender may reasonably request.
12.2 Conditions.
The obligation (a) of each Lender to make each Loan and participate in
each Existing Letter of Credit, and (b) of any Issuing Lender to issue each
Letter of Credit is subject to the following further conditions precedent that:
12.2.1 Compliance with Warranties, No Default, etc.
Both before and after giving effect to any borrowing
and the issuance of any Letter of Credit, the following
statements shall be true and correct:
(a) the representations and warranties of each Loan
Party and each Guarantor set forth in this Agreement and the
other Loan Documents shall be true and correct in all material
respects with the same effect as if then made (except to the
extent stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and
correct as of such earlier date); and
(b) no Event of Default or Unmatured Event of Default
shall have then occurred and be continuing.
12.2.2 Confirmatory Certificate.
If requested by the Paying Agent or any Lender, the
Paying Agent shall have received (in sufficient counterparts
to provide one to each Lender) a certificate dated the date of
such requested Loan or Letter of Credit and signed by a duly
authorized representative of the Company in such capacity but
not individually as to the matters set out in Section 12.2.1
(it being understood that each request by the Company for the
making of a Loan or the issuance of a Letter of Credit shall
be deemed to constitute a representation and warranty by the
Company that the conditions precedent set forth in Section
12.2.1 will be satisfied at the time of the making of such
Loan or the issuance of such Letter of Credit), together with
such other documents as the Paying Agent or any Lender may
reasonably request in support thereof.
12.2.3 Real Estate Documents.
If requested by the Collateral Agent or any Lender,
with respect to each parcel of real property, at any time
owned by the Company or any Guarantor, a duly executed
Mortgage providing for a fully perfected Lien, in favor of the
Collateral Agent, in all right, title and interest of the
Company or such Guarantor in such real property, together
with:
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(a) an ALTA Loan Title Insurance Policy, issued by an
insurer acceptable to the Collateral Agent, insuring the
Collateral Agent's Lien on such real property and containing
such endorsements as the Collateral Agent may reasonably
require (it being understood that the amount of coverage,
exceptions to coverage and status of title set forth in such
policy shall be acceptable to the Collateral Agent);
(b) copies of all documents of record concerning such
real property as shown on the commitment for the ALTA Loan
Title Insurance Policy referred to above;
(c) original or certified copies of all insurance
policies required to be maintained with respect to such real
property by this Agreement, the applicable Mortgage or any
other Loan Document;
(d) a survey certified to the Collateral Agent
meeting such standards as the Collateral Agent may reasonably
establish and otherwise reasonably satisfactory to the
Collateral Agent;
(e) a flood insurance policy concerning such real
property, if required by the Flood Disaster Protection Act of
1973; and
(f) an appraisal, prepared by an independent
appraiser engaged directly by the Collateral Agent, of such
parcel of real property or interest in real property, which
appraisal shall satisfy the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act, if
applicable, and shall evidence compliance with the supervisory
loan-to-value limits set forth in the Federal Deposit
Insurance Corporation Improvement Act of 1991, if applicable.
Additionally, (i) in the case of any leased real
property (other than the Company's office located at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx) on which are
located any assets or improvements (having a value of
$1,000,000 or more with respect to each real property address)
owned by the Company and/or any of its Subsidiaries and/or
Joint Ventures, at any time upon the request of the Collateral
Agent or the Required Lenders, the Company and/or its
Subsidiary and/or Joint Venture, as applicable, shall use
their best efforts to provide a Collateral Access Agreement
from the landlord of such property waiving any landlord's Lien
in respect of personal property kept at the premises subject
to such lease, and (ii) in the case of any mortgaged real
property, a waiver from the mortgagee thereof waiving any Lien
in respect of personal property kept at the premises subject
to such Mortgage.
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SECTION 13
EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default.
Each of the following shall constitute an Event of Default under this
Agreement:
13.1.1 Non-Payment of the Loans, etc.
Default in the payment when due of the principal of
any Loan; or default, and continuance thereof for five days,
in the payment when due of any interest, fee, reimbursement
obligation with respect to any Letter of Credit or Existing
Letter of Credit or other amount payable by the Company or any
Guarantor hereunder or under any other Loan Document.
13.1.2 Non-Payment of Other Debt.
Any default shall occur under the terms applicable to
any Debt of any Loan Party or Guarantor (other than
non-recourse Debt of the Company or any of its Subsidiaries or
any Guarantor as the Paying Agent shall consent, such consent
not to be unreasonably withheld) in an aggregate amount (for
all such Debt so affected and including undrawn committed or
available amounts and amounts owing to all creditors under any
combined or syndicated credit arrangement) exceeding
$2,000,000 and such default shall (a) consist of the failure
to pay such Debt when due, whether by acceleration or
otherwise, or (b) accelerate the maturity of such Debt or
permit the holder or holders thereof, or any trustee or agent
for such holder or holders, to cause such Debt to become due
and payable (or require any Loan Party or Guarantor to
purchase or redeem such Debt or post cash collateral in
respect thereof) prior to its expressed maturity.
13.1.3 Other Material Obligations.
Default in the payment when due, or in the
performance or observance of, any material obligation of, or
condition agreed to by, any Loan Party or Guarantor with
respect to any material purchase or lease of goods or services
where such default, singly or in the aggregate with all other
such defaults, could reasonably be expected to have a Material
Adverse Effect.
13.1.4 Bankruptcy, Insolvency, etc.
Any Loan Party or Guarantor becomes insolvent or
generally fails to pay, or admits in writing its inability or
refusal to pay, debts as they become due; or any Loan Party or
Guarantor applies for, consents to, or acquiesces in the
appointment of a trustee, receiver or other custodian for such
Loan Party or Guarantor or any property thereof, or makes a
general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for any Loan
Party or Guarantor or for a substantial part of the property
of any thereof and is not discharged within 60 days; or any
bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is commenced in respect
of any Loan Party or Guarantor, and if such case or proceeding
is not commenced by such Loan Party or Guarantor, it is
consented to or acquiesced in by such Loan Party or Guarantor,
or remains for 60 days undismissed; or any Loan Party or
Guarantor takes any action to authorize, or in furtherance of,
any of the foregoing.
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13.1.5 Non-Compliance with Loan Documents.
(a) Failure by any Loan Party or Guarantor to comply
with or to perform any covenant set forth in Section 10.1.5,
10.3(b) or 10.5 or Section 11 or (b) failure by any Loan Party
or Guarantor to comply with or to perform any other provision
of this Agreement or any other Loan Document (and not
constituting an Event of Default under any other provision of
this Section 13) and continuance of such failure described in
this clause (b) for 30 days.
13.1.6 Representations; Warranties.
Any representation or warranty made by any Loan Party
or Guarantor herein or any other Loan Document is breached or
is false or misleading in any material respect, or any
schedule, certificate, financial statement, report, notice or
other writing furnished by any Loan Party or Guarantor to the
Paying Agent or any Lender in connection herewith is false or
misleading in any material respect on the date as of which the
facts therein set forth are stated or certified.
13.1.7 Pension Plans.
(a) Any Person institutes steps to terminate a
Pension Plan if as a result of such termination the Company or
any member of the Controlled Group could be required to make a
contribution to such Pension Plan, or could incur a liability
or obligation to such Pension Plan, which contribution or
liability could reasonably be expected to have a Material
Adverse Effect; (b) a contribution failure occurs with respect
to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA; (c) the Unfunded Liability exceeds
$1,000,000; or (d) there shall occur any withdrawal or partial
withdrawal from a Multiemployer Pension Plan and the
withdrawal liability (without unaccrued interest) to
Multiemployer Pension Plans as a result of such withdrawal
(including any outstanding withdrawal liability that the
Company or any member of the Controlled Group have incurred on
the date of such withdrawal) could reasonably be expected to
have a Material Adverse Effect.
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13.1.8 Judgments.
Final judgments which exceed an aggregate of
$2,000,000 shall be rendered against any Loan Party or
Guarantor and shall not have been paid, discharged or vacated
or had execution thereof stayed pending appeal within 30 days
after entry or filing of such judgments.
13.1.9 Invalidity of Collateral Documents, etc.
Any Collateral Document shall cease to be in full
force and effect other than pursuant to the terms thereof, or
any of the Company or the Guarantors (or any Person by,
through or on behalf of any of the Company or the Guarantors)
shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document.
13.1.10 Invalidity of Subordination Provisions, etc.
Any subordination provision in any document or
instrument governing Subordinated Debt, or any subordination
provision in any guaranty by any Subsidiary of any
Subordinated Debt, shall cease to be in full force and effect
other than pursuant to the terms thereof, or any Loan Party or
Guarantor or any other Person (including the holder of any
applicable Subordinated Debt) shall contest in any manner the
validity, binding nature or enforceability of any such
provision.
13.1.11 Change of Control.
A Change of Control shall occur.
13.1.12 Material Adverse Effect.
The occurrence of any event having a Material Adverse
Effect.
13.2 Effect of Event of Default.
If any Event of Default described in Section 13.1.4 shall occur in
respect of the Company, the Commitments shall immediately terminate and the
Loans and all other Obligations hereunder shall become immediately due and
payable and the Company shall become immediately obligated to Cash Collateralize
all Letters of Credit and Existing Letters of Credit, all without presentment,
demand, protest or notice of any kind; and, if any other Event of Default shall
occur and be continuing, the Paying Agent may (and, upon the written request of
the Required Lenders shall) declare the Commitments to be terminated in whole or
in part and/or declare all or any part of the Loans and all other Obligations
hereunder to be due and payable and/or demand that the Company immediately Cash
Collateralize all or any Letters of Credit and Existing Letters of Credit,
whereupon the Commitments shall immediately terminate (or be reduced, as
applicable) and/or the Loans and other Obligations hereunder shall become
immediately due and payable (in whole or in part, as applicable) and/or the
Company shall immediately become obligated to Cash Collateralize the Letters of
Credit and Existing Letters of Credit (all or any, as applicable), all without
presentment, demand, protest or notice of any kind. The Paying Agent shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. Any cash collateral delivered
hereunder shall be held by the Collateral Agent (without liability for interest
thereon) and applied to the Obligations arising in connection with any drawing
under a Letter of Credit or Existing Letter of Credit. After the expiration or
termination of all Letters of Credit and Existing Letters of Credit, such cash
collateral shall be applied by the Paying Agent to any remaining Obligations
hereunder and any excess shall be delivered to the Company or as a court of
competent jurisdiction may elect.
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SECTION 14
THE AGENT
14.1 Appointment and Authorization.
Each Lender hereby irrevocably (subject to Section 14.10) appoints,
designates and authorizes the Paying Agent and the Collateral Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to each of them by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Paying Agent and the Collateral
Agent shall not have any duty or responsibility except those expressly set forth
herein, nor shall the Paying Agent or the Collateral Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Paying Agent or the Collateral Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
other Loan Documents with reference to the Paying Agent or the Collateral Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
LaSalle, as Administrative Agent under and as defined in the Existing
Agreement, hereby assigns all of its rights and obligations in such capacity
under the Existing Agreement and the Loan Documents (as defined in the Existing
Agreement) to the Paying Agent and the Collateral Agent, as appropriate.
14.2 Issuing Lender, LaSalle and Xxxxx.
(a) Any Issuing Lenders shall act on behalf of the Lenders (according
to their Pro Rata Shares) with respect to any Letters of Credit issued by it and
the documents associated therewith. The Issuing Lenders shall have all of the
benefits and immunities (i) provided to the Paying Agent in this Section 14 with
respect to any acts taken or omissions suffered by any such Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued by it
and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term "Paying Agent", as used in this
Section 14, included such Issuing Lender with respect to such acts or omissions,
and (ii) as additionally provided in this Agreement with respect to such Issuing
Lender.
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(b) LaSalle and Xxxxx, each in its capacity as the issuer of the
Existing Letters of Credit, shall act on behalf of the Lenders (according to
their Pro Rata Shares) with respect to any Existing Letters of Credit issued by
it and the documents associated therewith. LaSalle and Xxxxx, each in such
capacity, shall have all of the benefits and immunities (i) provided to the
Paying Agent in this Section 14 with respect to any acts taken or omissions
suffered by any of LaSalle or Xxxxx in connection with Existing Letters of
Credit issued by it and the agreements for letters of credit pertaining to such
Existing Letters of Credit as fully as if the term "Paying Agent", as used in
this Section 14, included LaSalle and Xxxxx, each in such capacity with respect
to such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to LaSalle and Xxxxx, each in such capacity.
14.3 Delegation of Duties.
The Paying Agent and the Collateral Agent may execute any of their
respective duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Paying Agent and the Collateral Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that either
one selects in the absence of gross negligence or willful misconduct.
14.4 Exculpation of Agents.
None of the Paying Agent, the Collateral Agent, nor any of their
respective directors, officers, employees or agents shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated
hereby (except to the extent resulting from its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein as
determined by a final, nonappealable judgment by a court of competent
jurisdiction), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan Party,
any Guarantor or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Paying Agent or the Collateral Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document (or
the creation, perfection or priority of any Lien or security interest therein),
or for any failure of the Company or any other party to any Loan Document to
perform its Obligations hereunder or thereunder. Neither the Paying Agent nor
the Collateral Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates or the Guarantors.
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14.5 Reliance by Agents.
The Paying Agent and the Collateral Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, electronic
mail message, affidavit, letter, telegram, facsimile, telex or telephone
message, statement 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 counsel
to the Company), independent accountants and other experts selected by the
Paying Agent or the Collateral Agent, as applicable. The Paying Agent and the
Collateral Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, confirmation from the Lenders of their
obligation to indemnify the Paying Agent or the Collateral Agent, as applicable,
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 Paying Agent and the
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act pursuant thereto shall be binding upon
each Lender. For purposes of determining compliance with the conditions
specified in Section 12, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Paying Agent shall have
received written notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
14.6 Notice of Default.
The Paying Agent and the Collateral Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default or Unmatured Event
of Default except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Paying Agent for the account of the Lenders,
unless the Paying Agent or the Collateral Agent, as applicable, shall have
received written notice from a Lender or the Company referring to this
Agreement, describing such Event of Default or Unmatured Event of Default and
stating that such notice is a "notice of default". The Paying Agent will notify
the Lenders of its receipt of any such notice. The Paying Agent and the
Collateral Agent shall take such action with respect to such Event of Default or
Unmatured Event of Default as may be requested by the Required Lenders in
accordance with Section 13; provided that unless and until the Paying Agent or
the Collateral Agent, as applicable, has received any such request, the Paying
Agent and the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event of
Default or Unmatured Event of Default as it shall deem advisable or in the best
interest of the Lenders.
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14.7 Credit Decision.
Each Lender acknowledges that the Paying Agent and the Collateral Agent
have not made any representation or warranty to it, and that no act by the
Paying Agent or the Collateral Agent hereafter taken, including any consent and
acceptance of any assignment or review of the affairs of the Loan Parties, shall
be deemed to constitute any representation or warranty by the Paying Agent or
the Collateral Agent to any Lender as to any matter, including whether the
Paying Agent or the Collateral Agent has disclosed material information in its
possession. Each Lender represents to the Paying Agent and the Collateral Agent
that it has, independently and without reliance upon the Paying Agent or the
Collateral Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties or the Guarantors, and made its own
decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Lender also represents that it will, independently and without
reliance upon the Paying Agent or the Collateral Agent 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 Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Paying Agent or
the Collateral Agent, as applicable, the Paying Agent and the Collateral Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial or other condition or creditworthiness of the Company which may come
into the possession of the Paying Agent or the Collateral Agent, as applicable.
14.8 Indemnification.
Whether or not the transactions contemplated hereby are consummated,
each Lender shall indemnify upon demand the Paying Agent and the Collateral
Agent and their respective directors, officers, employees and agents (to the
extent not reimbursed by or on behalf of the Company and without limiting the
obligation of the Company to do so), according to its applicable Pro Rata Share,
from and against any and all Indemnified Liabilities (as hereinafter defined);
provided that no Lender shall be liable for any payment to any such Person of
any portion of the Indemnified Liabilities to the extent determined by a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from the applicable Person's own gross negligence or willful misconduct. No
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Paying Agent and the Collateral Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs and Taxes) incurred by
the Paying Agent or the Collateral Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Paying Agent or the Collateral Agent is not reimbursed for such
expenses by or on behalf of the Company. The undertaking in this Section shall
survive repayment of the Loans, cancellation of the Notes, expiration or
termination of the Letters of Credit and/or the Existing Letters of Credit, any
foreclosure under, or modification, release or discharge of, any or all of the
Collateral Documents, termination of this Agreement and the resignation or
replacement of the Paying Agent and/or the Collateral Agent.
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14.9 Agent in Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Loan Parties or the Guarantors and their respective
Affiliates as though Bank of America were not the Paying Agent or the Collateral
Agent hereunder and without notice to or consent of any Lender. Each Lender
acknowledges that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Affiliate) and acknowledge that neither the Paying
Agent nor the Collateral Agent shall be under any obligation to provide such
information to them. With respect to their Loans (if any), Bank of America and
its Affiliates shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though Bank of America were not the
Paying Agent or the Collateral Agent, and the terms "Lender" and "Lenders"
include Bank of America and its Affiliates, to the extent applicable, in their
individual capacities.
14.10 Successor Agent.
(a) The Paying Agent may resign as Paying Agent upon 30 days' notice to
the Lenders. If the Paying Agent resigns under this Agreement, the Required
Lenders shall, with (so long as no Event of Default exists) the consent of the
Company (which shall not be unreasonably withheld or delayed), appoint from
among the Lenders a successor agent for the Lenders. If no successor agent is
appointed prior to the effective date of the resignation of the Paying Agent,
the Paying Agent may appoint, after consulting with the Lenders and the Company,
a successor agent from among the Lenders. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Paying Agent and the term "Paying
Agent" shall mean such successor agent, and the retiring Paying Agent's
appointment, powers and duties as Paying Agent shall be terminated. After any
retiring Paying Agent's resignation hereunder as Paying Agent, the provisions of
this Section 14 and Sections 15.5 and 15.16 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Paying Agent under this
Agreement. If no successor agent has accepted appointment as Paying Agent by the
date which is 30 days following a retiring Paying Agent's notice of resignation,
the retiring Paying Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Paying Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
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(b) The Collateral Agent may resign as Collateral Agent upon 30 days'
notice to the Lenders. If the Collateral Agent resigns under the Loan Documents,
the Required Lenders shall, with (so long as no Event of Default exists) the
consent of the Company (which shall not be unreasonably withheld or delayed),
appoint from among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the resignation of
the Collateral Agent, the Collateral Agent may appoint, after consulting with
the Lenders and the Company, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Collateral
Agent and the term "Collateral Agent" shall mean such successor agent, and the
retiring Collateral Agent's appointment, powers and duties as Collateral Agent
shall be terminated. After any retiring Collateral Agent's resignation under the
Loan Documents as Collateral Agent, the provisions of this Section 14 and
Sections 15.5 and 15.16 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Collateral Agent under this Agreement. If
no successor agent has accepted appointment as Collateral Agent by the date
which is 30 days following a retiring Collateral Agent's notice of resignation,
the retiring Collateral Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Collateral
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above
14.11 Collateral Matters.
The Lenders irrevocably authorize the Collateral Agent, at its option
and in its discretion, (a) to release any Lien granted to or held by the
Collateral Agent under any Collateral Document (i) upon termination of the
Commitments and payment in full of all Loans and all other obligations of the
Company hereunder and the expiration or termination of all Letters of Credit and
Existing Letters of Credit; (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; or (iii) subject to Section 15.1, if approved, authorized or ratified
in writing by the Required Lenders; or (b) to subordinate its interest in any
collateral to any holder of a Lien on such collateral which is permitted by
Section 11.2(i) (it being understood that the Collateral Agent may conclusively
rely on a certificate from the Company in determining whether the Debt secured
by any such Lien is permitted by Section 11.1(b) or (m)). Upon request by the
Collateral Agent at any time, the Lenders will confirm in writing the Collateral
Agent's authority to release, or subordinate its interest in, particular types
or items of collateral pursuant to this Section 14.11. Each Lender hereby
authorizes the Paying Agent to give blockage notices in connection with any
Subordinated Debt at the direction of Required Lenders and agrees that it will
not act unilaterally to deliver such notices.
14.12 Paying Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party or Guarantor, the Paying Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Paying Agent shall have made any demand on the Company) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Paying Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Paying Agent and their respective agents and
counsel and all other amounts due the Lenders and the Paying Agent under
Sections 5, 15.5 and 15.16) allowed in such judicial proceedings; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Paying Agent and, in the event that the
Paying Agent shall consent to the making of such payments directly to the
Lenders, to pay to the Paying Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Paying Agent and its
agents and counsel, and any other amounts due the Paying Agent under Sections 5,
15.5 and 15.16.
Nothing contained herein shall be deemed to authorize the Paying Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Paying Agent to vote
in respect of the claim of any Lender in any such proceeding.
14.13 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger", if any, shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
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SECTION 15
GENERAL
15.1 Waiver; Amendments.
No delay on the part of the Paying Agent, the Collateral Agent or any
Lender in the exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them of any right,
power or remedy preclude other or further exercise thereof, or the exercise of
any other right, power or remedy. No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement or the other Loan
Documents shall in any event be effective unless the same shall be in writing
and acknowledged by the Company and the Lenders having aggregate Pro Rata Shares
of not less than the aggregate Pro Rata Shares expressly designated herein with
respect to such amendment, modification, waiver or consent or, in the absence of
such designation as to any provision of this Agreement, by the Required Lenders,
and then any such amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall (a) extend or increase the
Commitment of any Lender without the written consent of such Lender, (b) extend
the date scheduled for payment of any principal (excluding mandatory
prepayments) of or interest on the Loans or any fees payable hereunder without
the written consent of each Lender directly affected thereby, (c) reduce the
principal amount of any Loan, the rate of interest thereon (excluding waivers of
any increases due to existence of an Event of Default) or any fees payable
hereunder, without the consent of each Lender directly affected thereby; or (d)
release all or substantially all of the Guarantors or all or substantially of
the collateral granted under the Collateral Documents, change the definition of
Required Lenders, any provision of this Section 15.1or reduce the aggregate Pro
Rata Share required to effect an amendment, modification, waiver or consent,
without, in each case, the written consent of all Lenders. No provision of
Sections 6.2.2 or 6.3 with respect to the timing or application of mandatory
prepayments of the Loans shall be amended, modified or waived without the
consent of Lenders having a majority of the aggregate Pro Rata Shares of the
Loans affected thereby. No provision of Section 14 or other provision of this
Agreement affecting the Paying Agent or the Collateral in their respective
capacities as such shall be amended, modified or waived without the consent of
the Paying Agent or the Collateral Agent, as applicable. No provision of this
Agreement relating to the rights or duties of any Issuing Lender in its capacity
as such shall be amended, modified or waived without the consent of such Issuing
Lender. No provision of this Agreement relating to the rights or duties of the
Swing Line Lender in its capacity as such shall be amended, modified or waived
without the consent of the Swing Line Lender.
15.2 Confirmations.
The Company and each holder of a Note agree from time to time, upon
written request received by it from the other, to confirm to the other in
writing (with a copy of each such confirmation to the Paying Agent) the
aggregate unpaid principal amount of the Loans then outstanding under such Note.
15.3 Notices.
Except as otherwise provided in Sections 2.2.2 and 2.2.3, all notices
hereunder shall be in writing (including facsimile transmission) and shall be
sent to the applicable party at its address shown on Annex B or at such other
address as such party may, by written notice received by the other parties, have
designated as its address for such purpose. Notices sent by facsimile
transmission shall be deemed to have been given when sent; notices sent by mail
shall be deemed to have been given three Business Days after the date when sent
by registered or certified mail, postage prepaid; and notices sent by hand
delivery or overnight courier service shall be deemed to have been given when
received. For purposes of Sections 2.2.2 and 2.2.3, the Paying Agent shall be
entitled to rely on telephonic instructions from any person that the Paying
Agent in good faith believes is an authorized officer or employee of the
Company, and the Company shall hold the Paying Agent and each other Lender
harmless from any loss, cost or expense resulting from any such reliance.
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15.4 Computations.
Where the character or amount of any asset or liability or item of
income or expense is required to be determined, or any consolidation or other
accounting computation is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in accordance with
GAAP, consistently applied; provided that if the Company notifies the Paying
Agent that the Company wishes to amend any covenant in Section 11.3 (or any
related definition) to eliminate or to take into account the effect of any
change in GAAP on the operation of such covenant (or if the Paying Agent
notifies the Company that the Required Lenders wish to amend Section 11.3 (or
any related definition) for such purpose), then the Company's compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant (or related definition) is amended in a manner
satisfactory to the Company and the Required Lenders.
15.5 Costs, Expenses and Taxes.
The Company agrees to pay on demand all reasonable out-of-pocket costs
and expenses of the Paying Agent, the Collateral Agent and the Issuing Lenders
(including Attorney Costs and any Taxes) in connection with the preparation,
execution, syndication, delivery and administration (including perfection and
protection of any collateral and the costs of Intralinks (or other similar
service), if applicable) of this Agreement, the other Loan Documents and all
other documents provided for herein or delivered or to be delivered hereunder or
in connection herewith (including any amendment, supplement or waiver to any
Loan Document), whether or not the transactions contemplated hereby or thereby
shall be consummated, and all reasonable out-of-pocket costs and expenses
(including Attorney Costs and any Taxes) incurred by the Paying Agent, the
Collateral Agent and each Lender after an Event of Default in connection with
the collection of the Obligations or the enforcement of this Agreement the other
Loan Documents or any such other documents or during any workout, restructuring
or negotiations in respect thereof. In addition, the Company agrees to pay, and
to save the Paying Agent, the Collateral Agent and the Lenders harmless from all
liability for, any fees of the Company's auditors in connection with any
reasonable exercise by the Paying Agent, the Collateral Agent and the Lenders of
their rights pursuant to Section 10.2. All Obligations provided for in this
Section 15.5 shall survive repayment of the Loans, cancellation of the Notes,
expiration or termination of the Letters of Credit and/or the Existing Letters
of Credit and termination of this Agreement.
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15.6 Assignments; Participations.
15.6.1 Assignments.
(a) Any Lender may at any time assign to one or more
Persons (any such Person, an "Assignee") all or any portion of
such Lender's Loans and Commitments, with the prior written
consent of the Paying Agent, the Issuing Lenders and, so long
as no Event of Default exists, the Company (which consent
shall not be unreasonably withheld or delayed and shall not be
required for an assignment by a Lender to a Lender or an
Affiliate of a Lender). Except as the Paying Agent may
otherwise agree, any such assignment shall be in a minimum
aggregate amount equal to $5,000,000 or, if less, the
remaining Commitment and Loans held by the assigning Lender.
The Company and the Paying Agent shall be entitled to continue
to deal solely and directly with such Lender in connection
with the interests so assigned to an Assignee until the Paying
Agent shall have received and accepted an effective assignment
agreement in substantially the form of Exhibit C hereto (an
"Assignment Agreement") executed, delivered and fully
completed by' the applicable parties thereto and a processing
fee of $2,500. No assignment may be made to any Person if at
the time of such assignment the Company would be obligated to
pay any greater amount under Section 7.6 or 8 to the Assignee
than the Company is then obligated to pay to the assigning
Lender under such Sections (and if any assignment is made in
violation of the foregoing, the Company will not be required
to pay such greater amounts). Any attempted assignment not
made in accordance with this Section 15.6.1 shall be treated
as the sale of a participation under Section 15.6.2. The
Company shall be deemed to have granted its consent to any
assignment requiring its consent hereunder unless the Company
has expressly objected to such assignment within three
Business Days after notice thereof.
(b) From and after the date on which the conditions
described above have been met, (i) such Assignee shall be
deemed automatically to have become a party hereto and, to the
extent that rights and obligations hereunder have been
assigned to such Assignee pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender
hereunder and (ii) the assigning Lender, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, shall be released from
its rights (other than its indemnification rights) and
obligations hereunder. Upon the request of the Assignee (and,
as applicable, the assigning Lender) pursuant to an effective
Assignment Agreement, the Company shall execute and deliver to
the Paying Agent for delivery to the Assignee (and, as
applicable, the assigning Lender) a Note in the principal
amount of the Assignee's Pro Rata Share of the Revolving
Commitment (and, as applicable, a Note in the principal amount
of the Pro Rata Share of the Revolving Commitment retained by
the assigning Lender. Each such Note shall be dated the
effective date of such assignment. Upon receipt by the
assigning Lender of such Note, the assigning Lender shall
return to the Company any prior Note held by it.
(c) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party
hereto.
93
15.6.2 Participations.
Any Lender may at any time sell to one or more
Persons participating interests in its Loans, Commitments or
other interests hereunder (any such Person, a "Participant").
In the event of a sale by a Lender of a participating interest
to a Participant, (a) such Lender's obligations hereunder
shall remain unchanged for all purposes, (b) the Company and
the Paying Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations hereunder and (c) all amounts payable by the
Company shall be determined as if such Lender had not sold
such participation and shall be paid directly to such Lender.
No Participant shall have any direct or indirect voting rights
hereunder except with respect to any event described in
Section 15.1 expressly requiring the unanimous vote of all
Lenders or, as applicable, all affected Lenders. Each Lender
agrees to incorporate the requirements of the preceding
sentence into each participation agreement which such Lender
enters into with any Participant. The Company agrees that if
amounts outstanding under this Agreement are due and payable
(as a result of acceleration or otherwise), each Participant
shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement
and with respect to any Letter of Credit or Existing Letter of
Credit to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement; provided that such right of set-off
shall be subject to the obligation of each Participant to
share with the Lenders, and the Lenders agree to share with
each Participant, as provided in Section 7.5. The Company also
agrees that each Participant shall be entitled to the benefits
of Section 7.6 or 8 as if it were a Lender (provided that on
the date of the participation no Participant shall be entitled
to any greater compensation pursuant to Section 7.6 or 8 than
would have been paid to the participating Lender on such date
if no participation had been sold and that each Participant
complies with Section 7.6(d) as if it were an Assignee).
15.7 Register.
The Paying Agent shall maintain a copy of each Assignment Agreement
delivered and accepted by it and register (the "Register") for the recordation
of names and addresses of the Lenders and the Commitment of each Lender from
time to time and whether such Lender is the original Lender or the Assignee. No
assignment shall be effective unless and until the Assignment Agreement is
accepted and registered in the Register. All records of transfer of a Lender's
interest in the Register shall be conclusive, absent manifest error, as to the
ownership of the interests in the Loans. The Paying Agent shall not incur any
liability of any kind with respect to any Lender with respect to the maintenance
of the Register.
94
15.8 GOVERNING LAW.
THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES.
15.9 Confidentiality.
As required by federal law and the Paying Agent's policies and
practices, the Paying Agent may need to obtain, verify, and record certain
customer identification information and documentation in connection with opening
or maintaining accounts, or establishing or continuing to provide services. The
Paying Agent, the Collateral Agent and each Lender agree to use commercially
reasonable efforts (equivalent to the efforts the Paying Agent, the Collateral
Agent or such Lender applies to maintain the confidentiality of its own
confidential information) to maintain as confidential all information provided
to them by any Loan Party or Guarantor and designated as confidential, except
that the Paying Agent, the Collateral Agent and each Lender may disclose such
information (a) to Persons employed or engaged by the Paying Agent, the
Collateral Agent or such Lender in evaluating, approving, structuring or
administering the Loans and the Commitments; (b) to any assignee or participant
or potential assignee or participant that has agreed to comply with the covenant
contained in this Section 15.9 (and any such assignee or participant or
potential assignee or participant may disclose such information to Persons
employed or engaged by them as described in clause (a) above); (c) as required
or requested by any federal or state regulatory authority or examiner, or any
insurance industry association, or as reasonably believed by the Paying Agent,
the Collateral Agent or such Lender to be compelled by any court decree,
subpoena or legal or administrative order or process; (d) as, on the advice of
the Paying Agent's, the Collateral Agent's or such Lender's counsel, is required
by law; (e) in connection with the exercise of any right or remedy under the
Loan Documents or in connection with any litigation to which the Paying Agent,
the Collateral Agent or such Lender is a party; (f) to any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender; (g) to
any Affiliate of the Paying Agent, the Collateral Agent, any Issuing Lender or
any other Lender who may provide Bank Products to the Loan Parties or
Guarantors; or (h) that ceases to be confidential through no fault of the Paying
Agent, the Collateral Agent or any Lender. Notwithstanding the foregoing, the
Company consents to the publication by the Paying Agent or any Lender of a
tombstone or similar advertising material relating to the financing transactions
contemplated by this Agreement, and the Paying Agent reserves the right to
provide to industry trade organizations information necessary and customary for
inclusion in league table measurements.
15.10 Severability.
Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement. All obligations of the Company
and rights of the Paying Agent and the Lenders expressed herein or in any other
Loan Document shall be in addition to and not in limitation of those provided by
applicable law.
95
15.11 Nature of Remedies.
All Obligations of the Company and rights of the Paying Agent, the
Collateral Agent and the Lenders expressed herein or in any other Loan
Document shall be in addition to and not in limitation of those provided by
applicable law. No failure to exercise and no delay in exercising, on the
part of the Paying Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
15.12 Entire Agreement.
This Agreement, together with the other Loan Documents, embodies
the entire agreement and understanding among the parties hereto and
supersedes all prior or contemporaneous agreements and understandings of
such Persons, verbal or written, relating to the subject matter hereof and
thereof (except as relates to the fees described in Section 5.3) and any
prior arrangements made with respect to the payment by the Company of (or
any indemnification for) any fees, costs or expenses payable to or incurred
(or to be incurred) by or on behalf of the Paying Agent, the Collateral
Agent or the Lenders.
15.13 Counterparts.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement. Receipt of an executed signature page
to this Agreement by facsimile or other electronic transmission shall constitute
effective delivery thereof. Electronic records of executed Loan Documents
maintained by the Lenders shall deemed to be originals.
15.14 Successors and Assigns.
This Agreement shall be binding upon the Company, the Lenders, the
Paying Agent, the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders, the Paying Agent and
the Collateral Agent and the successors and assigns of the Lenders, the Paying
Agent and the Collateral Agent. No other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents. The Company
may not assign or transfer any of its rights or Obligations under this Agreement
without the prior written consent of the Paying Agent and each Lender.
96
15.15 Captions.
Section captions used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
15.16 Patriot Act Notice.
As required by federal law and Bank of America's or any other Lender's
policies and practices, Bank of America or any other Lender may need to collect
certain customer identification information and documentation in connection with
opening or maintaining accounts or establishing or continuing to provide
services.
15.17 INDEMNIFICATION BY THE COMPANY.
IN CONSIDERATION OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
PAYING AGENT, THE COLLATERAL AGENT, THE IS SUING LENDERS AND THE LENDERS AND THE
AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE COMPANY HEREBY
AGREES TO INDEMNIFY, EXONERATE AND HOLD THE PAYING AGENT, THE COLLATERAL AGENT,
THE ISSUING LENDERS, EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES AND AGENTS OF THE PAYING AGENT, THE COLLATERAL AGENT, THE IS SUING
LENDERS AND EACH LENDER (EACH A "LENDER PARTY") FREE AND HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES,
DAMAGES AND EXPENSES, INCLUDING ATTORNEY COSTS (COLLECTIVELY, THE "INDEMNIFIED
LIABILITIES"), INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR
ARISING OUT OF, OR RELATING TO (A) ANY TENDER OFFER, MERGER, PURCHASE OF CAPITAL
SECURITIES, PURCHASE OF ASSETS (INCLUDING THE RELATED TRANSACTIONS) OR OTHER
SIMILAR TRANSACTION FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE USE,
HANDLING, RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT OR
DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN
PARTY, (C) ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT
ANY PROPERTY OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS CONDUCTED
THEREON, (D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT
WHICH ANY LOAN PARTY OR THEIR RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE
DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (E) THE EXECUTION,
DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION. IF AND TO THE EXTENT THAT THE FOREGOING
UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE COMPANY HEREBY AGREES TO
MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE
INDEMNIFIED LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE LAW. ALL
OBLIGATIONS PROVIDED FOR IN THIS SECTION 15.17 SHALL SURVIVE REPAYMENT OF THE
LOANS, CANCELLATION OF THE NOTES, EXPIRATION OR TERMINATION OF THE LETTERS OF
CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR DISCHARGE OF, ANY
OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT.
97
15.18 Nonliability of Lenders.
The relationship between the Company on the one hand and the Lenders
and the Paying Agent, the Collateral Agent and the Issuing Lenders on the other
hand shall be solely that of borrower and lender. Neither the Paying Agent , the
Collateral Agent, the Issuing Lenders, LaSalle as the issuer of the Existing
Letters of Credit, Xxxxx, as the issuer of the Existing Letters of Credit nor
any Lender has any fiduciary relationship with or duty to any Loan Party or
Guarantor arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Loan Parties and the
Guarantors, on the one hand, and the Paying Agent, the Collateral Agent, the
Issuing Lenders, LaSalle as the issuer of the Existing Letters of Credit, Xxxxx
as the issuer of the Existing Letters of Credit and the Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor.
Neither the Paying Agent, the Collateral Agent, the Issuing Lenders, LaSalle as
the issuer of the Existing Letters of Credit, Xxxxx as the issuer of Existing
Letters of Credit nor any Lender undertakes any responsibility to any Loan Party
or Guarantor to review or inform any Loan Party or Guarantor of any matter in
connection with any phase of any Loan Party's or Guarantor's business or
operations. The Company agrees, on behalf of itself and each other Loan Party
and Guarantor, that neither the Paying Agent, the Collateral Agent, any Issuing
Lender, LaSalle as the issuer of the Existing Letters of Credit, Xxxxx as the
issuer of the Existing Letters of Credit nor any Lender shall have liability to
any Loan Party or Guarantor (whether sounding in tort, contract or otherwise)
for losses suffered by any Loan Party or Guarantor in connection with, arising
out of or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. NO LENDER PARTY OR LOAN PARTY OR GUARANTOR SHALL BE LIABLE
FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER
MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION
SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER PARTY OR LOAN
PARTY OR GUARANTOR HAVE ANY LIABILITY WITH RESPECT THERETO, EXCEPT AS A RESULT
OF ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The Company acknowledges that
it has been advised by counsel in the negotiation, execution and delivery of
this Agreement and the other Loan Documents to which it is a party. No joint
venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the
Loan Parties, Guarantors and the Lenders.
98
15.19 FORUM SELECTION AND CONSENT TO JURISDICTION.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PAYING AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF ILLINOIS. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15.20 WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE PAYING AGENT, THE COLLATERAL AGENT, ANY
ISSUING LENDER, LASALLE AS THE ISSUER OF THE EXISTING LETTERS OF CREDIT, XXXXX
AS THE ISSUER OF THE EXISTING LETTERS OF CREDIT AND EACH LENDER HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
15.21 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction
contemplated hereby, the Company acknowledges and agrees, and acknowledges its
Affiliates' understanding, that: (i) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm's-length commercial transaction between the
Company and its Affiliates, on the one hand, and the Paying Agent and BAS, on
the other hand, and the Company is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the
process leading to such transaction, the Paying Agent and BAS each is and has
been acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Company or any of Affiliates, stockholders, creditors or
employees or any other Person; (iii) neither the Paying Agent nor BAS has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Company with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of any other Loan Document (irrespective of whether
the Paying Agent or BAS has advised or is currently advising the Company or any
of its Affiliates on other matters) and neither the Paying Agent nor BAS has any
obligation to the Company or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Paying Agent and BAS and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and its Affiliates, and
neither the Paying Agent nor BAS has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Paying Agent and BAS have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Paying Agent or BAS
with respect to any breach or alleged breach of agency or fiduciary duty.
99
15.22 USA PATRIOT Act Notice
Each Lender that is subject to the Act (as hereinafter
defined) and the Paying Agent (for itself and not on behalf of any Lender)
hereby notifies the Company that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"Act"), it is required to obtain, verify and record information that identifies
each Loan Party, which information includes the name and address of each Loan
Party and other information that will allow such Lender or the Paying Agent, as
applicable, to identify each Loan Party in accordance with the Act.
15.23 Waiver of Notice of Termination.
Those Lenders party hereto which are also party to the Existing Credit
Agreement hereby waive any prior notice requirement under the Existing Credit
Agreement with respect to the termination of commitments thereunder and the
making of any prepayments thereunder.
[signature pages follow]
100
The parties hereto have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the date first set forth
above.
STANDARD PARKING CORPORATION,
By: /s/ G. Xxxx Xxxxxxx
-----------------------------------
Name: G. Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A.,
as Issuing Lender and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK N.A.,
as Syndication Agent and as a Lender
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
r LASALLE BANK NATIONAL ASSOCIATION,
as Co-Administrative Agent and as a Xxxxx
By: /s/ Xxxx P Silver
--------------------------
Name: Xxxx X. Silver
Title: Senior Vice President
US BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
101
FIFTH THIRD BANK,
a Michigan Banking Corporation,
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
XXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx Business
Financial Services Inc.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
FIRST HAWAIIAN BANK,
as a Lender
By: /s/ Xxxxx X.X. Xxxxx
-----------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Vice President
102
ANNEX A
LENDERS AND PRO RATA SHARES
------------------------------------------------------ --------------------------------- -----------------------------
Lender Revolving Commitment Amount Pro Rata Share
------------------------------------------------------ --------------------------------- -----------------------------
Bank of America, N.A. $30,000,000 22.222222222%
------------------------------------------------------ --------------------------------- -----------------------------
LaSalle Bank National Association $30,000,000 22.222222222%
------------------------------------------------------ --------------------------------- -----------------------------
Xxxxx Fargo Bank N.A. $30,000,000 22.222222222%
------------------------------------------------------ --------------------------------- -----------------------------
US Bank National Association $18,000,000 13.333333333%
------------------------------------------------------ --------------------------------- -----------------------------
Fifth Third Bank $9,000,000 6.666666667%
------------------------------------------------------ --------------------------------- -----------------------------
Xxxxxxx Xxxxx Capital $9,000,000 6.666666667%
------------------------------------------------------ --------------------------------- -----------------------------
First Hawaiian Bank $9,000,000 6.666666667%
------------------------------------------------------ --------------------------------- -----------------------------
------------------------------------------------------ --------------------------------- -----------------------------
TOTAL $135,000,000 100.000000000%
------------------------------------------------------ --------------------------------- -----------------------------
103
CHAR1\889050v6
ANNEX B
ADDRESSES FOR NOTICES
Address for All Loan Parties:
If to Borrower:
Standard Parking Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: G. Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxxxxx@xxxxxxxxxxxxxxx.xxx
With a Copy to:
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxxx@xxxxxxxx.xxx
Address for Paying Agent:
For Payments and Requests for Credit Extensions:
Bank of America, N.A.
Bank of America Plaza
000 Xxxx Xxxxxx
Mail Code: TX1-492-14-14
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Credit Services Officer
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxxx.x.xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Wire Instructions:
ABA #: 000000000
Account #: 1292000883
Attention: Credit Services
Ref: Standard Parking Corp.
Other Notices as Paying Agent:
Bank of America, N.A.
Agency Management
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-08-30
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Assistant Vice President
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
Address for Issuing Lender:
Bank of America, X.X.
Xxxxx Xxxxxxxxxx - Xxx Xxxxxxx #00000
0000 X. Xxxxxx Xxxxxx, 0xx Xxxxx
Mail Code: CA9-705-07-05
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx, Assistant Vice President
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxx.x.xxxx@xxxxxxxxxxxxx.xxx
EXHIBIT A
FORM OF
NOTE
----,---------
The undersigned, for value received, promises to pay to the order of
_____________________ or registered assigns (the "Lender"), in accordance with
the provisions of the Credit Agreement (as hereinafter defined), the aggregate
unpaid amount of all Loans made to the undersigned by the Lender pursuant to the
Credit Agreement referred to below (as shown on the schedule attached hereto
(and any continuation thereof) or in the records of the Lender), such principal
amount to be payable on the dates set forth in the Credit Agreement.
The undersigned further promises to pay interest on the unpaid
principal amount of each Loan from the date of such Loan until such Loan is paid
in full, payable at the rate(s) and at the time(s) set forth in the Credit
Agreement. Payments of both principal and interest are to be made in lawful
money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Amended and Restated Credit Agreement, dated as of
June 29, 2006 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement" terms not otherwise defined herein are used
herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender) and the Paying Agent and
Collateral Agent, to which Credit Agreement reference is hereby made for a
statement of the terms and provisions under which this Note may or must be paid
prior to its due date or its due date accelerated.
This Note is one of the Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Credit
Agreement.
This Note is made under and governed by the laws of the State of
Illinois applicable to contracts made and to be performed entirely within such
State.
STANDARD PARKING CORPORATION
By:
--------------------------------------------------
Title:
-----------------------------------------------
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: Bank of America, N.A., as Paying Agent
Please refer to the Amended and Restated Credit Agreement dated as of
June 29, 2006 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") among Standard Parking Corporation (the
"Company"), various financial institutions and Bank of America, N.A., as Paying
Agent and Collateral Agent. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement.
XVI. Reports. Enclosed herewith is a copy of the [annual audited/quarterly]
report of the Company as at _____, _________ (the "Computation Date"),
which report fairly presents in all material respects the financial
condition and results of operations [(subject to the absence of
footnotes and to normal year-end adjustments)] of the Company as of the
Computation Date and has been prepared in accordance with GAAP
consistently applied.
XVII. Financial Tests. The Company hereby certifies and warrants to you that
the following is a true and correct computation as at the Computation
Date of the following ratios and/or financial restrictions contained in
the Credit Agreement:
[REVISE AS APPROPRIATE]
A. Section 11.13.1 - Minimum Fixed Charge Coverage Ratio
1. EBITDA $________
2. Income taxes paid $________
3. Unfinanced Capital Expenditures $________
4. Sum of (2) and (3) $________
5. Remainder of (1) minus (4) $________
6. cash Interest Expense
(net of cash interest income) $________
7. Required payments of principal of Funded Debt (including Term
Loans but
excluding Revolving Loans) $________
8. Sum of (6) and (7) $________
9. Ratio of (5) to (8) ______ to 1
10. Minimum Required ______ to 1
B. Section 11.13.2 - Maximum Total Debt to EBITDA Ratio
1. Total Debt $________
2. EBITDA $________
(from Item A(1) above)
3. Ratio of (1) to (2) ________to 1
4. Maximum allowed ________to 1
The Company further certifies to you that no Event of Default or
Unmatured Event of Default has occurred and is continuing.
The Company has caused this Certificate to be executed and delivered by
its duly authorized officer on ________,20__.
STANDARD PARKING CORPORATION
By:
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Title:
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EXHIBIT C
FORM OF
ASSIGNMENT AGREEMENT
Date:___________________
To: Standard Parking Corporation
and
Bank of America, as Paying Agent
Re: Assignment under the Credit Agreement referred to below
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Gentlemen and Ladies:
Please refer to Section 15.6.1 of the Amended and Restated Credit
Agreement dated as of June 29, 2006 (as amended or otherwise modified from time
to time, the "Credit Agreement") among Standard Parking Corporation (the
"Company"), various financial institutions and Bank of America, N.A., as paying
agent and collateral agent (in each such capacity, the "Paying Agent" or the
"Collateral Agent"). Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
__________________ (the "Assignor") hereby sells and assigns, without
recourse, to (the "Assignee"), and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to the Assignor's rights and obligations
under the Credit Agreement as of the date hereof equal to ______% of all of the
Loans, of the participation interests in the Letters of Credit, Existing Letters
of Credit and of the Commitments, such sale, purchase, assignment and assumption
to be effective as of_____, ___________, or such later date on which the Company
and the Paying Agent shall have consented hereto (the "Effective Date"). After
giving effect to such sale, purchase, assignment and assumption, the Assignee's
and the Assignor's respective Percentages for purposes of the Credit Agreement
will be as set forth opposite their names on the signature pages hereof.
The Assignor hereby instructs the Paying Agent to make all payments
from and after the Effective Date in respect of the interest assigned hereby
directly to the Assignee. The Assignor and the Assignee agree that all interest
and fees accrued up to, but not including, the Effective Date are the property
of the Assignor, and not the Assignee. The Assignee agrees that, upon receipt of
any such interest or fees, the Assignee will promptly remit the same to the
Assignor.
The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim.
The Assignee represents and warrants to the Company and the Paying
Agent that, as of the date hereof; the Company will not be obligated to pay any
greater amount under Section 7.6 or 8 of the Credit Agreement than the Company
is obligated to pay to the Assignor under such Section. [The Assignee has
delivered, or is delivering concurrently herewith, to the Company and the Paying
Agent the forms required by Section 7.6 of the Credit Agreement.] [INSERT IF
ASSIGNEE IS ORGANIZED UNDER THE LAWS OF A JURISDICTION OTHER THAN THE UNITED
STATES OF AMERICA OR A STATE THEREOF.] The [Assignee/Assignor] [Borrower] shall
pay the fee payable to the Paying Agent pursuant to Section 15.6.1.
The Assignee hereby confirms that it has received a copy of the Credit
Agreement. Except as otherwise provided in the Credit Agreement, effective as of
the Effective Date:
(a) the Assignee (i) shall be deemed automatically to have become a
party to the Credit Agreement and to have all the rights and obligations of a
"Lender" under the Credit Agreement as if it were an original signatory thereto
to the extent specified in the second paragraph hereof; and (ii) agrees to be
bound by the terms and conditions set forth in the Credit Agreement as if it
were an original signatory thereto; and
(b) the Assignor shall be released from its obligations under the
Credit Agreement to the extent specified in the second paragraph hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitment:
(A) Institution Name:
Address:
Attention:
Telephone:
Facsimile:
(B) Payment Instructions:
This Assignment shall be governed by and construed in accordance with
the laws of the State of Illinois.
Please evidence your receipt hereof and your consent to the sale,
assignment, purchase and assumption set forth herein by signing and returning
counterparts hereof to the Assignor and the Assignee.
Percentage =____% [ASSIGNEE]
By:
Title:
Adjusted Percentage =____% [ASSIGNOR]
By:
Title:
ACKNOWLEDGED AND CONSENTED TO
this ___________ day of_______
BANK OF AMERICA, N.A., as Paying Agent
By:
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Title:
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ACKNOWLEDGED AND CONSENTED TO
this ___________ day of_______
STANDARD PARKING CORPORATION
By:
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Title:
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EXHIBIT D
FORM OF LOAN NOTICE
Date: __________, 20___
To: Bank of America, N.A., as Paying Agent
Re: Amended and Restated Credit Agreement dated as of June 29, 2006 (as
amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") among Standard Parking Corporation (the
"Company"), various financial institutions and Bank of America, N.A.,
as Paying Agent and Collateral Agent. Capitalized terms used but not
otherwise defined herein have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby requests (select one):
A Borrowing of Revolving Loans
A conversion or continuation of Revolving Loans
1. On _______________, 20___ (which is a Business Day).
2. In the amount of $__________.
3. Comprised of ______________ (Type of Loan requested).
4. For LIBOR Loans: with an Interest Period of __________ months.
The Borrower hereby represents and warrants that (a) after giving effect to any
Borrowing of Revolving Loans, (i) the Revolving Outstandings shall not exceed
the Revolving Commitment, and (ii) the aggregate Outstanding Amount of the
Revolving Loans of any Lender plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitments and (b) all of the conditions contained in Section 12.2 of
the Credit Agreement have been satisfied on and as of the date hereof, and will
continue to be satisfied on and as of the date of the Borrowing, conversion or
continuation requested hereby, before and after giving effect thereto.
STANDARD PARKING CORPORATION
By:
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Title:
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