Exhibit 10.58
CREDIT AGREEMENT
Dated as of October 8, 1998
among
NATIONAL VISION ASSOCIATES, LTD.,
BANK OF AMERICA, FSB
as Documentation Agent,
FIRST UNION NATIONAL BANK,
as Administrative Agent and Issuing Bank,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ................................................... 1
1.01 Certain Defined Terms............................................ 1
1.02 Other Interpretive Provisions.................................... 29
1.03 Accounting Principles............................................ 30
ARTICLE II THE CREDITS................................................... 30
2.01 The Revolving Credit............................................. 30
2.02 Loan Accounts.................................................... 31
2.03 Procedure for Borrowing.......................................... 31
2.04 Conversion and Continuation Elections............................ 32
2.05 Voluntary Termination or Reduction of Commitments................ 33
2.06 Optional Prepayments............................................. 34
2.07 Mandatory Prepayments of Loans................................... 34
2.08 Interest......................................................... 35
2.09 Fees............................................................. 36
2.10 Computation of Fees and Interest................................. 37
2.11 Payments by the Company.......................................... 38
2.12 Payments by the Banks to the Administrative Agent................ 39
2.13 Sharing of Payments, Etc......................................... 39
2.14 Security......................................................... 40
2.15 Swingline Loans.................................................. 40
ARTICLE III THE LETTERS OF CREDIT........................................ 43
3.01 The Letter of Credit Subfacility................................. 43
3.02 Issuance, Amendment and Renewal of Letters of Credit............. 44
3.03 Risk Participations, Drawings and Reimbursements................. 46
3.04 Repayment of Participations...................................... 47
3.05 Role of the Issuing Bank......................................... 48
3.06 Obligations Absolute............................................. 49
3.07 Cash Collateral Pledge........................................... 50
3.08 Letter of Credit Fees............................................ 50
3.09 Uniform Customs and Practice..................................... 50
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY........................ 51
4.01 Taxes............................................................ 51
4.02 Illegality....................................................... 52
4.03 Increased Costs and Reduction of Return.......................... 52
4.04 Funding Losses................................................... 53
4.05 Inability to Determine Rates..................................... 54
4.06 Certificates of Banks............................................ 54
4.07 Substitution of Banks............................................ 54
4.08 Survival......................................................... 55
ARTICLE V CONDITIONS PRECEDENT.......................................... 55
5.01 Conditions of Closing Loans...................................... 55
5.02 Conditions to Initial Loans...................................... 57
5.03 Conditions to All Borrowings..................................... 59
5.04 Conditions Subsequent............................................ 60
ARTICLE VI REPRESENTATIONS AND WARRANTIES................................. 61
6.01 Corporate Existence and Power.................................... 61
6.02 Corporate Authorization; No Contravention........................ 62
6.03 Governmental Authorization....................................... 62
6.04 Binding Effect................................................... 62
6.05 Litigation....................................................... 63
6.06 No Default ...................................................... 63
6.07 ERISA Compliance................................................. 63
6.08 Use of Proceeds; Margin Regulations.............................. 64
6.09 Title to Properties.............................................. 64
6.10 Taxes............................................................ 64
6.11 Financial Condition ............................................. 65
6.12 Environmental Matters............................................ 65
6.13 Collateral Documents............................................. 66
6.14 Regulated Entities............................................... 67
6.15 No Burdensome Restrictions....................................... 67
6.16 Copyrights, Patents, Trademarks and Licenses, Etc................ 67
6.17 Subsidiaries..................................................... 68
6.18 Insurance........................................................ 68
6.19 Solvency......................................................... 68
6.20 Swap Obligations................................................. 68
6.21 Full Disclosure.................................................. 68
6.22 Accounts and Inventory........................................... 69
6.23 Leases........................................................... 69
6.24 Compliance With Laws............................................. 70
6.25 Year 2000 Compatibility.......................................... 70
6.26 Material Contracts............................................... 70
ARTICLE VII AFFIRMATIVE COVENANTS........................................ 71
7.01 Financial Statements............................................. 71
7.02 Certificates; Other Information.................................. 72
7.03 Notices.......................................................... 73
7.04 Preservation of Corporate Existence, Etc......................... 75
7.05 Maintenance of Property.......................................... 75
7.06 Insurance........................................................ 76
7.07 Payment of Obligations........................................... 76
7.08 Compliance with Laws............................................. 77
7.09 Compliance with ERISA............................................ 77
7.10 Inspection of Property and Books and Records..................... 77
7.11 Environmental Laws............................................... 77
7.12 Use of Proceeds.................................................. 78
7.13 Further Assurances............................................... 78
7.14 Bank Accounts.................................................... 78
7.15 Inventory in Transit............................................. 79
7.16 Year 2000 Compatibility.......................................... 79
7.17 Covenants Regarding Formation of Subsidiaries.................... 79
ARTICLE VIII NEGATIVE COVENANTS.......................................... 80
8.01 Limitation on Liens.............................................. 80
8.02 Disposition of Assets............................................ 82
8.03 Consolidations and Mergers....................................... 83
8.04 Loans and Investments............................................ 83
8.05 Limitation on Indebtedness....................................... 84
8.06 Transactions with Affiliates..................................... 85
8.07 Use of Proceeds.................................................. 85
8.08 Contingent Obligations........................................... 85
8.09 Joint Ventures................................................... 86
8.10 Restricted Payments.............................................. 86
8.11 ERISA............................................................ 86
8.12 Change in Business............................................... 87
8.13 Accounting Changes............................................... 87
8.14. Financial Covenants.............................................. 87
8.15. Amendments....................................................... 88
8.16. Managed Care Contracts........................................... 88
8.17 No Other Negative Pledges........................................ 89
ARTICLE IX EVENTS OF DEFAULT.............................................. 89
9.01 Event of Default................................................. 89
9.02 Remedies......................................................... 92
9.03 Specified Swap Contract Remedies................................. 92
9.04 Rights Not Exclusive............................................. 92
9.05 Application of Payments.......................................... 93
ARTICLE X THE AGENTS..................................................... 93
10.01 Appointment and Authorization: Agents........................... 93
10.02 Delegation of Duties............................................ 94
10.03 Liability of Agents ............................................ 94
10.04 Reliance by Agents ............................................. 94
10.05 Notice of Default............................................... 95
10.06 Credit Decision ................................................ 95
10.07 Indemnification of Agent ....................................... 96
10.08 Agents in Individual Capacity .................................. 96
10.09 Successor Agents................................................ 97
10.10 Withholding Tax................................................. 97
10.11 Collateral Matters.............................................. 99
ARTICLE XI MISCELLANEOUS ................................................ 100
11.01 Amendments and Waivers.......................................... 100
11.02 Notices ........................................................ 101
11.03 No Waiver; Cumulative Remedies.................................. 101
11.04 Costs and Expenses.............................................. 101
11.05 Company Indemnification......................................... 102
11.06 Marshaling; Payments Set Aside.................................. 103
11.07 Successors and Assigns.......................................... 104
11.08 Assignments, Participations, Etc................................ 104
11.09 Confidentiality ................................................ 106
11.10 Set-off......................................................... 106
11.11 Automatic Debits of Fees........................................ 107
11.12 Notification of Addresses, Lending Offices, Etc................. 107
11.13 Counterparts ................................................... 107
11.14 Severability.................................................... 107
11.15 No Third Parties Benefitted .................................... 107
11.16 Governing Law and Jurisdiction.................................. 107
11.17 Waiver of Jury Trial ........................................... 108
11.18 Entire Agreement ............................................... 108
SCHEDULES
Schedule C-1 Commitments
Schedule 6.05 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.17 Subsidiaries and Minority Interests
Schedule 6.18 Insurance Matters
Schedule 6.26 Material Contracts
Schedule 7.14 Deposit and Investment Accounts
Schedule 8.01 Permitted Liens
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Assignment of Notes
Exhibit B Form of Borrowing Base Certificate
Exhibit C Form of Compliance Certificate
Exhibit D Form of Promissory Note
Exhibit E Form of Notice of Borrowing
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Subsidiary Guaranty
Exhibit J Form of Subsidiary Pledge Agreement
Exhibit K Form of Subsidiary Security Agreement
Exhibit L Form of Landlord's Consent
Exhibit M Form of Credit Card Agreement
Exhibit N Form of Wal-Mart Lease
Exhibit O Form of Sam's Wholesale Club Lease
Exhibit P Form of Lease Agreement with Xxxx Xxxxx, Inc.
Exhibit Q Form of Assignment and Acceptance
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 8, 1998,
among National Vision Associates, Ltd., a Georgia corporation (the
"Company"), the several financial institutions from time to time party
to this Agreement (collectively, the "Banks"; individually, a "Bank"),
First Union National Bank, as issuing bank (the "Issuing Bank"), Bank
of America, FSB, as documentation agent for the Banks (the
"Documentation Agent") and First Union National Bank, as
administrative agent for the Banks (the "Administrative Agent").
WHEREAS, the Banks have agreed to make available to the Company
a secured revolving credit facility upon the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms.
The following terms have the following meanings:
"Account" means, with respect any Person, any account of
such Person and any other right of such Person to payment for
goods sold or leased or for services rendered, whether or not
evidenced by an instrument or chattel paper and whether or not
yet earned by performance.
"Account Debtor" shall mean any Person who is obligated
under an Account.
"Account Designation Letter" means a letter from the Company
to the Administrative Agent, duly completed and signed by a
Responsible Officer and in form and substance satisfactory to the
Administrative Agent, listing any one or more accounts to which
the Company may from time to time request the Administrative
Agent to forward the proceeds of any Loans made hereunder.
"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 any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of
any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or the Subsidiary is the
surviving entity. The term "Acquisition" shall not include the
formation by the Company of a new Subsidiary provided that its
Investment therein does not violate Section 8.04 hereof.
"Adjusted EBITDA" means, with respect to the Company on a
consolidated basis with its Subsidiaries for any period, the sum
of, without duplication, (a) EBITDA of the Company on a
consolidated basis with its Subsidiaries, (b) with respect to
any Person or substantially all of the assets of a Person
(including New West and Frame-n-Lens) that became a Subsidiary
of, or was merged with or consolidated into, the Company during
such period, the EBITDA of such Person or the EBITDA attributable
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to such assets for such period, (c) at the option of the Banks,
any non-recurring financing charges that were deducted from Net
Income in determining EBITDA for such period, and (d) the non-
realized synergies (not otherwise included in the calculation of
EBITDA) for such period. For purposes of this definition, non-
realized synergies shall be deemed to be (i) $5,000,000 with
respect to the calculation of Adjusted EBITDA for the four fiscal
quarters ending closest to September 30, 1998, (ii) $5,000,000
with respect to the calculation of Adjusted EBITDA for the four
fiscal quarters ending closest to December 31, 1998, (iii)
$3,750,000 with respect to the calculation of Adjusted EBITDA for
the four fiscal quarter ending closest to March 31, 1999, (iv)
$2,500,000 with respect to the calculation of Adjusted EBITDA for
the four fiscal quarters ending closest to June 30, 1999, and (v)
$1,250,000 with respect to the calculation of Adjusted EBITDA for
the four fiscal quarters ending closest to September 30, 1999.
"Administrative Agent" means First Union in its capacity as
administrative agent for the Banks hereunder, and any successor
administrative agent arising under Section 10.09.
"Administrative Agent-Related Persons" means First Union and
any successor administrative agent arising under Section 10.09,
together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Administrative Agent's Payment Office" means the address
for payments set forth on Schedule 11.02 or such other address as
the Administrative Agent may from time to time specify.
"Affected Bank" has the meaning set forth in Section 4.07.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership
interests, by contract, or otherwise.
"Agents" means the Administrative Agent and the
Documentation Agent.
"Aggregate Revolving Credit Obligations" shall mean, as of
any particular time, the sum of (a) the Effective Amount of all
Loans then outstanding, plus (b) the Effective Amount of all L/C
Obligations then outstanding.
"Aggregate Specified Swap Amount" means, at any time, the
sum of all Specified Swap Amounts owing to all Swap Providers.
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"Agreement" means this Credit Agreement, as modified,
amended, restated or supplemented from time to time.
"Applicable Margin" means as of the Closing Date one and
three quarters of one percent (1.75%) with respect to Base Rate
Loans and three percent (3.00%) with respect to Offshore Rate
Loans, to be adjusted based upon the ratio of the Company's and
its Subsidiaries (on a consolidated basis) Indebtedness to
Adjusted EBITDA for the most recently ended four fiscal quarter
period as set forth in the table below:
If the ratio of Indebtedness The Applicable Margin with The Applicable Margin with
to Adjusted EBITDA is: respect to Base Rate Loans is: respect to Offshore Rate Loans is:
-------------------------------------------------------------------------------------------------------
greater than 4.5 to 1.0 2.00% 3.25%
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less than or equal to 4.5 to 1.75% 3.00%
1.0 and greater than 4.0 to
1.0
-------------------------------------------------------------------------------------------------------
less than or equal to 4.0 to 1.50% 2.75%
1.0 and greater than 3.5 to
1.0
-------------------------------------------------------------------------------------------------------
less than or equal to 3.5 to 1.25% 2.50%
1.0 and greater than 3.0 to
1.0
-------------------------------------------------------------------------------------------------------
less than or equal to 3.0 to 1.00% 2.25%
1.0 and greater than 2.5 to
1.0
-------------------------------------------------------------------------------------------------------
less than or equal to 2.5 to 0.75% 2.00%
1.0 and greater than 2.0 to
1.0
-------------------------------------------------------------------------------------------------------
less than or equal to 2.0 to 0.50% 1.75%
1.0
-------------------------------------------------------------------------------------------------------
The Applicable Margin adjustment provided for in the table set
forth above shall be effective (a) with respect to an increase of
the Applicable Margin, as of the tenth (10th) Business Day after
the day on which financial statements are required to be
delivered to the Administrative Agent pursuant to Section 7.01
hereof, and (b) with respect to a decrease in the Applicable
Margin, as of the later of (1) the tenth (10th) Business Day
after which such financial statements are required to be
delivered to the Administrative Agent pursuant to Section 7.01,
and (2) the date on which such financial statements are actually
delivered to the Administrative Agent; provided, however, that,
notwithstanding the foregoing or anything else herein to the
contrary, if at any time the Company shall have failed to deliver
the financial statements and a Compliance Certificate as required
by Section 7.01(a) or Section 7.01(b), as the case may be, and
Section 7.02(b), or if at any time an Event of Default shall have
occurred and be continuing, then at the election of the Majority
Lenders, at all times from and including the date on which such
statements and Compliance Certificate are required to have been
delivered (or the date of the occurrence of such Event of
Default, as the case may be) to the date on which the same shall
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have been delivered (or such Event of Default cured or waived, as
the case may be), each Applicable Margin shall be determined in
accordance with the above matrix as if the ratio of the Company's
Indebtedness to Adjusted EBITDA for the most recently ended four
fiscal quarter period were greater than or equal to 4.5 to 1.0
(notwithstanding the actual ratio).
"Appraisal" means a real estate appraisal conducted in
accordance with the Uniform Standards of Professional Appraisal
Practice (as promulgated by the Appraisal Standards Board of the
Appraisal Foundation) and all Requirements of Law applicable to
the Banks, and applicable internal policies of the Administrative
Agent, undertaken by an independent appraisal firm satisfactory
to the Administrative Agent and the Majority Banks, and providing
an assessment of fair market value of a parcel or property, and
taking into account any and all Estimated Remediation Costs.
"Arizona Property" means the real property of New West at
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assignment of Notes" means that certain Assignment of Notes
between the Company and the Administrative Agent, and
acknowledged by Mexican Vision Associates Operadora S. de X.X. de
C.V., substantially in the form of Exhibit A.
"Attorney Costs" means and includes all actual and
reasonable fees and disbursements of any law firm or other
external counsel, the allocated actual and reasonable cost of
internal legal services and all reasonable disbursements of
internal counsel.
"Available Loan Commitment" shall mean, as of any particular
time, (a) the amount of the Commitment minus (b) the Aggregate
Revolving Credit Obligations then outstanding.
"Bank" means the institutions specified as such in the
introductory clause hereto. Unless the context otherwise clearly
requires, "Bank" includes any such institution in its capacity as
Swap Provider, Issuing Bank or Swingline Bank, as applicable.
Unless the context otherwise clearly requires, references to any
such institution as a "Bank" shall also include any of such
institution's Affiliates that may at any time of determination be
Swap Providers.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means the higher of (i) the per annum interest
rate publicly announced from time to time by First Union in
Charlotte, North Carolina, to be its prime rate (which may not
necessarily be its best lending rate), as adjusted to conform to
changes as of the opening of business on the date of any such
change in such prime rate, and (ii) the Federal Funds Rate plus
one half of one percent (0.5%) per annum, as adjusted to conform
to changes as of the opening of business on the date of any such
change in the Federal Funds Rate.
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"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"Blocked Account Agreement" means that certain Blocked
Account Agreement of even date herewith among the Company, First
Union and the Administrative Agent, in form and substance
satisfactory to the Banks.
"BofA" means Bank of America, FSB.
"Borrowing" means a borrowing hereunder consisting of Loans
of the same Type made to the Company on the same day by the Banks
under Article II, and, other than in the case of Base Rate Loans,
having the same Interest Period.
"Borrowing Base" shall mean, at any particular time, the
remainder of --
(I) the lesser of:
(a) Seventy-Five Percent (75%) of Adjusted
EBITDA for the most recent twelve months for which financial
statements have been provided to the Banks pursuant to Section
7.01; and
(b) the sum of --
(i) eighty percent (80%) of the Eligible
Accounts; plus
(ii) fifty percent (50%) of the Value of
Eligible Inventory; minus,
(II) such reserves that the Majority Banks may
reasonably deem necessary or appropriate from time to time.
The Borrowing Base will be determined from time to time
within three Business Days after the Administrative Agent's
receipt of the documents referred to in Section 7.02(e), (f) and
(g) hereof. The Company acknowledges and agrees that unless and
until a Landlord Consent has been delivered to the Administrative
Agent for any laboratory site the value of Inventory located at
such site shall be excluded from the Borrowing Base or, at the
discretion of the Banks, a reserve shall be deducted from the
Borrowing Base in an amount reasonably determined by the
Administrative Agent as appropriate to cover any landlord Liens
which may be assessed against such Inventory.
"Borrowing Base Certificate" means a document substantially
in the form of Exhibit B hereto, with appropriate insertions, or
such other form as shall be acceptable to the Agents, as it may
be amended or modified from time to time.
"Borrowing Base Deficiency" shall mean any condition wherein
the Aggregate Revolving Credit Obligations exceed the Borrowing
Base as set forth on the most recent Borrowing Base Certificate
delivered to the Administrative Agent or as otherwise determined
by the Administrative Agent.
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"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks in Xxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxx or Charlotte, North Carolina are authorized or required
by law to close and, if the applicable Business Day relates to
any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request
or directive of any central bank or other Governmental Authority,
or any other law, rule or regulation, whether or not having the
force of law, in each case, regarding capital adequacy of any
bank or of any corporation controlling a bank.
"Capitalized Lease Obligations" shall mean, with respect to
any Person, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease
obligations under GAAP, and for purposes of this definition, the
amount of such obligations at any date shall be the capitalized
amount of such obligations at such date as determined in
accordance with GAAP.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Documentation Agent, the Issuing Bank
and the Banks, as additional collateral for the Obligations, cash
or deposit account balances pursuant to documentation in form and
substance satisfactory to the Agents and the Issuing Bank (which
documents are hereby consented to by the Banks). Derivatives of
such term shall have corresponding meaning. The Company hereby
grants the Administrative Agent, for the benefit of the
Administrative Agent, the Documentation Agent, the Issuing Bank
and the Banks, a security interest in all such cash and deposit
account balances. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at First Union.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Change of Control" means (a) any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934), directly or
indirectly, of more than thirty-five percent (35%) of the total
voting power of all classes of stock then outstanding of the
Company entitled to vote in the election of directors or (b)
during any period of twenty-four consecutive months, individuals
who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the
stockholders of the Company was approved by a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of such Board of Directors then in office.
6
"Clean-Up Date" has the meaning set forth in Section 2.15(d)
"Closing Date" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived by
all Banks (or, in the case of subsection 5.01(e), waived by the
Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Collateral" means all property and interests in property
and proceeds thereof now owned or hereafter acquired by the
Company or any Restricted Subsidiary in or upon which a Lien to
secure any or all of the Obligations now or hereafter exists in
favor of the Banks, or the Administrative Agent on behalf of the
Banks, pursuant to the Collateral Documents.
"Collateral Documents" means, collectively, (i) the Security
Agreement, any Mortgages, the Pledge Agreement, the Assignment of
Notes, the Subsidiary Guaranty, the Subsidiary Security
Agreement, they Blocked Account Agreement, the Credit Card
Agreements, and all other security agreements, mortgages, deeds
of trust, patent and trademark assignments, lease assignments,
guarantees and other similar agreements between the Company or
any Restricted Subsidiary and the Banks or the Administrative
Agents for the benefit of the Banks now or hereafter delivered to
the Banks or the Administrative Agent pursuant to or in
connection with the transactions contemplated hereby, and all
financing statements (or comparable documents now or hereafter
filed in accordance with the Uniform Commercial Code or
comparable law) against the Company or any Restricted Subsidiary
as debtor in favor of the Banks or the Administrative Agent for
the benefit of the Banks as secured party, and (ii) any
amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the
foregoing.
"Collections" means all cash, checks, notes, instruments,
and other items of payment (including but not limited to
insurance proceeds, proceeds of cash sales, rental proceeds, and
tax refunds).
"Commitment" shall mean the several obligations of the Banks
to advance the aggregate amount of up to $25,000,000 to the
Company on or after the Agreement Date, in accordance with their
respective Pro Rata Shares, pursuant to the terms hereof, and as
such amount may be reduced from time to time, pursuant to the
terms hereof. As of the Closing Date, each Bank's several
Commitment is set forth on Schedule C-1.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit C.
"Concentration Account" means the account of the Company
maintained at First Union covered by the Blocked Account
Agreement.
"Contingent Obligation" means, as to any Person, any direct
or indirect liability of that Person, whether or not contingent,
with or without recourse, (a) with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
7
including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the
payment or discharge of any such primary obligation, or to
maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (iv) otherwise to assure
or hold harmless the holder of any such primary obligation
against loss in respect thereof (each, a "Guaranty Obligation");
(b) with respect to any Surety Instrument (other than any Letter
of Credit) issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is
ever made or tendered, or such services are ever performed or
tendered, or (d) in respect of any Swap Contract.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but
with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Credit Card Agreement" means each letter agreement between
the Company and a credit card processor, substantially in the
form of Exhibit M.
"Credit Extension" means and includes (a) the making of any
Revolving Loans hereunder, and (b) the Issuance of any Letters of
Credit hereunder.
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"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of
Default.
"Disposition" means (i) the sale, lease, conveyance or other
disposition of property, other than sales or other dispositions
expressly permitted under subsection 8.02(a) or 8.02(b),
operating leases or subleases entered into in the ordinary course
of business or Investments permitted under Section 8.04 or Liens
permitted under Section 8.01, and (ii) the sale or transfer to
any Person (other than the Company or any Restricted Subsidiary)
by the Company or any Subsidiary of the Company of any equity
securities issued by any Subsidiary of the Company and held by
such transferor Person.
"Documentation Agent" means BofA in its capacity as document
ation agent for the Banks hereunder, and any successor
documentation agent arising under Section 10.09.
"Documentation Agent-Related Persons" means BofA and any
successor documentation agent arising under Section 10.09,
together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Dormant Subsidiaries" means International Vision Associates
of Ontario, Ltd., a Georgia corporation, and International Vision
Associates of Canada Ltd., a Georgia corporation.
"EBIRTDA" means, with respect to any Person on a
consolidated basis for any period, Adjusted EBITDA of such
Person, plus, to the extent deducted in computing Net Income for
such period, rent and other occupancy expenses paid on account of
all operating leases of any type (including equipment and real
estate) and license agreements. Unless the context clearly
provides otherwise, any reference to EBIRTDA in this Agreement
shall be to the EBIRTDA of the Company and its Subsidiaries on a
consolidated basis.
"EBITDA" means, with respect to the Company on a
consolidated basis with its Subsidiaries for any period, the Net
Income of such Person for such period, (a) plus, without
duplication and to the extent deducted in computing Net Income
for such period, the sum of (i) income taxes, (ii) Interest
Expense, (iii) depreciation and amortization expense, and (iv)
other non-cash charges reasonably acceptable to the Majority
Banks, (b) minus, to the extent included in Net Income for such
period, extraordinary gains; provided, however, that the EBITDA
with respect to any Person or substantially all of the assets of
a Person (including New West and Frame-n-Lens) that became a
Subsidiary of, or was merged with or consolidated into, the
Company during such period shall include the EBITDA of such
Person or the EBITDA attributable to such assets for such period.
"Effective 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 Loans occurring on such date; and (ii) with respect
to any outstanding L/C Obligations on any date, the amount of
9
such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit 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 of
outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
"Eligible Account" means an Account owing to the Company or
a Restricted Subsidiary which meets the following requirements:
(a) (i) with respect to any Account owed by an
Account Debtor under a managed care contract,
such Account must not be unpaid on the date
that is one hundred twenty (120) days after its
due date, and with respect to any account owed
by any other Account Debtor, such Account must
not be unpaid on the date that is ninety (90)
days after its due date;
(b) it is not a credit card Account;
(c) it is genuine and in all respects what it
purports to be;
(d) it arises from the sale of goods or rendition
of services by the Company or a Restricted
Subsidiary; and (i) such goods or services
comply with such Account Debtor's specifi-
cations (if any) and have been shipped to, or
delivered to and accepted by, such Account
Debtor and (ii) the Company or the Restricted
Subsidiary, as applicable, has possession of,
or if requested by the Administrative Agent or
the Majority Banks, has delivered to the
Administrative Agent, shipping and delivery
receipts evidencing such shipment, delivery and
acceptance;
(e) it is payable in the United States and in
United States currency;
(f) it (a) is evidenced by an invoice rendered to
the Account Debtor with respect thereto which
(i) is dated not earlier than the date of
shipment or performance and (ii) has payment
terms which are acceptable to the Majority
Banks, which payment terms existing on and
disclosed to the Banks prior to the Agreement
Date are acceptable to the Majority Banks, and
(b) does not constitute service charges,
chargebacks, memo xxxxxxxx or ineligible credit
column balances;
(g) it is not subject to any assignment, claim or
Lien, other than a Lien in favor of the
Administrative Agent and any Permitted Liens
junior to the Liens in favor of the
Administrative Agent;
(h) it is a valid, legally enforceable and
unconditional obligation of the Account Debtor
with respect thereto, and is not subject to
setoff, counterclaim, credit or allowance or
adjustment by the Account Debtor with respect
10
thereto, or to any claim by such Account Debtor
denying liability thereunder in whole or in
part, and such Account Debtor has not refused
to accept any of the goods or services which
are the subject of such Account or offered or
attempted to return any of such goods (but only
to the extent of such setoff, counterclaim,
credit, allowance, adjustment, claim, refusal
or return);
(i) there are no proceedings or actions which are
then threatened or pending against the Account
Debtor with respect thereto or to which such
Account Debtor is a party which might result in
any material adverse change in such Account
Debtor's financial condition, or in its ability
to pay any Account in full when due;
(j) the Account Debtor with respect thereto is not
the Company or a Subsidiary of the Company or
an Affiliate or an employee or agent of any of
the foregoing;
(k) the Account Debtor with respect thereto is
located within the United States of America,
unless the sale of goods giving rise to the
Account is on letter of credit, banker's
acceptance or other credit support terms
satisfactory to the Majority Banks;
(l) it is not an Account arising from a "sale on
approval," "sale or return" or "consignment,"
or subject to any other repurchase or return
agreement;
(m) it is not an Account with respect to which
possession and/or control of the goods sold
giving rise thereto is held, maintained or
retained by the Company, any Subsidiary of the
Company, or any Affiliate of any of the fore-
going (or by any agent or custodian of any of
the foregoing) for the account of or subject to
further and/or future direction from the
Account Debtor thereof;
(n) it is not an Account which in any way fails to
meet or violates any warranty, representation
or covenant contained in this Agreement or any
Loan Document relating directly or indirectly
to the Company's and its Subsidiaries'
Accounts;
(o) the Account Debtor thereunder is not located in
West Virginia, New Jersey or Minnesota;
provided, however, that such restriction shall
not apply to an Account if at the time the
Account was created and at all times thereafter
(a) the Company or Restricted Subsidiary, as
applicable, had filed and has maintained
effective a current Notice of Business
Activities Report with the appropriate
office or agency of the State of West Virginia,
New Jersey or Minnesota, as applicable, or (b)
the Company or Restricted Subsidiary, as
applicable, was and has continued to be exempt
from the filing of such report and has provided
the Administrative Agent with satisfactory
evidence thereof;
(p) it arises in the ordinary course of Company's or a
Restricted Subsidiary's (as applicable) business;
(q) if the Account Debtor is the United States of
America or any department, agency or instru-
mentality thereof, the Company or Restricted
Subsidiary, as applicable, has assigned its
right to payment of such Account to the Adminis-
trative Agent pursuant to the Assignment of
Claims Act of 1940, as amended;
11
(r) such Account, together with all other Accounts
for which the Account Debtor is a state or local
government, or a department, agency or
instrumentality thereof unless (a) the Account
is subject to assignment under and pursuant to
a state or local law which is analogous to the
Federal Assignment of Claims Act of 1940, as
amended, and (b) Company has assigned its right
to payment of such Account pursuant to such
state or local law;
(s) it is not owed by an Account Debtor whose invoices
representing 50% or more of the unpaid net dollar
amount of all Accounts from such Account Debtor
are unpaid more than the number of days after the
date of such invoices set forth in subsection (a)
above for such Accounts;
(t) if the Majority Banks in their reasonable
discretion have established a credit limit for an
Account Debtor, the aggregate dollar amount of
Accounts due from such Account Debtor,including
such Account, does not exceed such credit limit;
and
(u) it is not evidenced by chattel paper or an
instrument.
An Account which is at any time an Eligible Account but which
subsequently fails to meet any of the foregoing requirements,
shall forthwith cease to be an Eligible Account. Further, with
respect to any Account, if the Majority Banks at any time
hereafter determine in their reasonable discretion that the
prospect of payment or performance by the Account Debtor with
respect thereto is or will be impaired for any reason whatsoever,
notwithstanding anything to the contrary contained above, such
Account shall forthwith cease to be an Eligible Account.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000;
(b) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is
acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the
OECD; and (c) a Person that is primarily engaged in the business
of commercial banking and that is (i) a Subsidiary of a Bank,
(ii) a Subsidiary of a Person of which a Bank is a Subsidiary, or
(iii) a Person of which a Bank is a Subsidiary.
"Eligible Inventory" means Inventory owned by the Company or
a Restricted Subsidiary which meets the following requirements:
(a) it is not subject to any assignment, claim or Lien,
other than a Lien in favor of the Administrative Agent
and any other Permitted Lien junior to the Liens in
favor of the Administrative Agent;
(b) it is (a) raw materials or finished goods Inventory
which is held for sale, (b) new and unused and (c) not
Inventory classified by the Company or a Restricted
Subsidiary, as applicable, on its general ledger,
prepared in a manner consistent with the Company's and
its Restrictive Subsidiaries' general ledgers disclosed
to the Administrative Agent and the Banks prior to the
Closing Date, as either "close out" or "discontinued"
12
Inventory and which "close out" or "discontinued"
Inventory has been owned by the Company or its
Restricted Subsidiary for an aggregate of more than 6
months after being so classified;
(c) it is in the possession and control of the Company, a
Restricted Subsidiary or any of their respective
agents, as applicable; provided, however, that if it is
stored on premises leased to the Company or a
Restricted Subsidiary, the Documentation Agent is in
possession of a Landlord's Consent duly executed by the
owner of such premises;
(d) if it is in the possession or control of a bailee,
warehouseman, consignee, processor or other Person
other than the Company or a Restricted Subsidiary, the
Documentation Agent is in possession of such
agreements, instruments and documents as the Agents may
require (each in form and content acceptable to the
Agents and duly executed, as appropriate, by the
bailee, warehouseman, consignee, processor or other
Person in possession or control of such
Inventory, as applicable) including but not limited to
warehouse receipts in the Administrative Agent's name
covering such Inventory and a Landlord's Consent or
other similar consent, as applicable;
(e) it is not Inventory which is dedicated to or,
identifiable with, or is otherwise specifically to be
used in the manufacture of, goods which are to be sold
to the United States of America or any department,
agency or instrumentality thereof and in respect of
which Inventory, Company shall have received any
progress or other advance payment which is or may be
credited or set off against any Account generated upon
the sale or lease of any such goods;
(f) it is not Inventory produced in violation of the Fair
Labor Standards Act and subject to the "hot goods"
provisions contained in Title 29 U.S.C. Section 215 or
any successor statute or section;
(g) it is not Inventory bearing a servicemark, trademark or
name of any Person other than the Company or a
Restricted Subsidiary, unless it is Inventory which is
sold to the Company or a Restricted Subsidiary in the
ordinary course of the Company's or a Restricted
Subsidiary's, as the case may be, business for
distribution and is not subject to any licensing,
patent, royalty, trademark, tradename or copyright
agreement between the Company or a Restricted
Subsidiary, as the case may be, and any other Person
which prohibits the Administrative Agent's sale or
other disposition of such Inventory pursuant to Loan
Documents;
(h) it is not (i) packaging, packing or shipping materials,
(ii) goods used in connection with maintenance or
repair of the Company's or a Restricted Subsidiary's
business, properties or assets, (iii) general supplies,
(iv) raw materials in the possession or control of a
processor or finisher or (v) work in process;
13
(i) it is not Inventory which in any way fails to meet or
violates any warranty, representation or covenant
contained in this Agreement or any Loan Document
relating directly or indirectly to the Company's or a
Restricted Subsidiary's Inventory;
(j) it is not excessively slow moving or otherwise
unacceptable due to age, type, category, quality and/or
quantity, as determined by the Majority Banks in their
reasonable discretion; and
(k) if it is Inventory purchased from a vendor outside of
the United States of America and the Company or a
Restricted Subsidiary has title to such Inventory, (a)
it is in transit from the vendor thereof ("In Transit
Inventory"), and not from another location outside of
the United States of any Inventory of the Company or a
Restricted Subsidiary, (b) it is properly insured (as
determined by the Administrative Agent in its
reasonable discretion) and covered by appropriate
shipping documents or other documents of title which
have been delivered to the Administrative Agent, and
(c) all of the requirements set forth in Section 7.15
with respect thereto have been satisfied.
Inventory which is at any time Eligible Inventory but which
subsequently fails to meet any of the foregoing requirements
shall forthwith cease to be Eligible Inventory.
"Eligible Letters of Credit" shall mean any outstanding
Letter of Credit issued by the Issuing Bank on behalf of the
Company in connection with Inventory purchased from a vendor
outside of the United States of America by the Company in the
ordinary course of business.
"Environmental Claims" means all claims, however asserted,
by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental
Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon the presence,
placement, discharge, emission or release (including intentional
and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills,
leaks, discharges, emissions or releases) of any Hazardous
Material at, in, or from Property, whether or not owned by the
Company or any Subsidiary.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements
14
with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters; including the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal Act, the
Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community
Right-to-Know Act, the California Hazardous Waste Control Law,
the California Solid Waste Management, Resource, Recovery and
Recycling Act, the California Water Code and the California
Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
"Estimated Remediation Costs" means all costs associated
with performing work to remediate contamination of real property
or groundwater, including engineering and other professional fees
and expenses, costs to remove, transport and dispose of
contaminated soil, costs to "cap" or otherwise contain
contaminated soil, and costs to pump and treat water and monitor
water quality.
"Eurodollar Reserve Percentage" has the meaning specified in
the definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Event of Loss" means, with respect to any property, any of
the following: (a) any loss, destruction or damage of such
property; (b) any pending or threatened institution of any
proceedings for the condemnation or seizure of such property or
for the exercise of any right of eminent domain with respect to
such property; or (c) any actual condemnation, seizure or taking,
15
by exercise of the power of eminent domain or otherwise, of such
property, or confiscation of such property or the requisition of
the use of such property.
"Exchange Act" means the Securities Exchange Act of 1934,
and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any period, a fluctuating
per annum interest rate (rounded upwards, if necessary, to the
nearest 1/100 of one percentage point) equal for each day during
such period to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York,
or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the
Administrative Agent.
"Fee Letters" has the meaning specified in subsection
2.09(a).
"First Union" means First Union National Bank.
"Foreign Subsidiary" means any Subsidiary of the Company
which is organized or incorporated under the laws of a
jurisdiction other than the United States or any state or
territory thereof.
"Frame-n-Lens" means Frame-n-Lens Optical, Inc., a
California corporation.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges (including, without limitation,
net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 4.01.
"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), which are applicable to the
circumstances as of the Closing Date.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
16
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Hazardous Materials" means all those substances that are
regulated by, or which may form the basis of liability under, any
Environmental Law, including any substance identified under any
Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, special waste, hazardous substance,
hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"In Transit Inventory" has the meaning ascribed to such term
in clause (k) of the definition of Eligible Inventory.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property
or services(other than trade payables entered into and other
accrued liabilities arising in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations with respect to Surety Instruments (other than a
letter of credit relating to a trade payable that is not
considered Indebtedness hereunder); (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in
either case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or
sale of such property); (f) all Capitalized Lease Obligations;
(g) all indebtedness referred to in clauses (a) through (f) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien upon or in property (including accounts and contracts
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness;
and (h) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a)
through (g) above. For all purposes of this Agreement, the
Indebtedness of any Person shall include (i) all recourse
Indebtedness of any partnership or joint venture or limited
liability company in which such Person is a general partner or a
joint venturer or a member; and (ii) to the extent not otherwise
included, all obligations of any Person under any Swap Contract.
"Indemnified Liabilities" has the meaning specified in
Section 11.05.
"Indemnified Person" has the meaning specified in Section
11.05.
"Indenture" means that certain Indenture dated as of October
8, 1998 among the Company, as issuer, the guarantors named
therein and State Street Bank and Trust company, as trustee, in
form and substance satisfactory to the Agents.
"Independent Auditor" has the meaning specified in
subsection 7.01(a).
"Insolvency Proceeding" means, with respect to any Person,
(a) any case, action or proceeding with respect to such Person
17
before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Expense" means, with respect to any Person on a
consolidated basis for any period, interest expense and loan fees
determined in accordance with GAAP, and including capitalized and
non-capitalized interest and the interest component of
Capitalized Lease Obligations. Unless the context clearly
provides otherwise, any reference to Interest Expense in this
Agreement shall be to the Interest Expense of the Company and its
Restricted Subsidiaries on a consolidated basis.
"Interest Payment Date" means (a) as to any Loan other than
a Base Rate Loan, the last day of each Interest Period applicable
to such Loan, and (b) as to any Base Rate Loan, the last Business
Day of each calendar quarter and each date such Loan is converted
into another Type of Loan; provided, however, that if any
Interest Period for a Offshore Rate Loan exceeds three months,
the date that falls three months after the beginning of such
Interest Period and after each Interest Payment Date thereafter
is also an Interest Payment Date.
"Interest Period" means the period commencing on the
Borrowing Date of such Loan or on the Conversion / Continuation
Date on which the Loan is converted into or continued as an
Offshore Rate Loan, and ending on the date one, two, three or six
months thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion / Continuation;
provided that:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, that 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;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or 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
(iii) no Interest Period for any Loan shall extend beyond the
Revolving Termination Date.
"Inventory" means, with respect to any Person, any and all
such Person's goods (including, without limitation, goods in
transit), wheresoever located which are or may at any time be in
transit to such Person, leased by such Person to a lessee, held
for sale or lease, furnished under any contract of service, or
held as raw materials, work in process, or supplies or materials
used or consumed in such Person's business, or which are held for
use in connection with the manufacture, packaging, packing,
18
shipping, advertising, selling or finishing of such goods, and
all goods of such Person the sale or other disposition of which
has given rise to an Account, contract right, general intangible,
instrument or chattel paper which are returned to and/or
repossessed and/or stopped in transit by such Person or the
Administrative Agent or any Bank or any agent or bailee of any of
them, and all documents of title or other documents representing
the same.
"Investments" has the meaning specified in Section 8.04.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Issuance Date" has the meaning specified in subsection
3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
"Issuing Bank" means First Union in its capacity as issuer of
one or more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under subsection 10.01(b) or Section
10.09.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a
separate legal entity) now or hereafter formed by the Company or any of
its Subsidiaries with another Person (other than the Company or one of
its Restricted Subsidiaries) in order to conduct a common venture or
enterprise with such Person.
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for
amendment of outstanding letters of credit as shall at any time be in
use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of
letters of credit as shall at any time be in use at the Issuing Bank,
as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Loans under
subsection 3.03(c).
"L/C Commitment" means the commitment of the Issuing Bank to
issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III, in an aggregate amount not to exceed on any date the amount of
$10,000,000, as the same shall be reduced as a result of a reduction in
the L/C Commitment pursuant to Section 2.05; provided that the L/C
Commitment is apart of the combined Commitments of the Banks, rather
than a separate,independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
19
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's
standard form documents for letter of credit issuances.
"Landlord's Consent" means a Landlord's Waiver and Consent
substantially in the form of Exhibit L, with appropriate insertions, or
such other form as shall be acceptable to the Agents, as it may be
amended or modified from time to time, pursuant to which any owner
or a premises at which Inventory is located acknowledges the existence
and priority of the Administrative Agent's Lien thereon.
"Lending Office" means, as to any Bank, the office or offices of
such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
11.02, or such other office or offices as the Bank may from time to
time notify the Company and the Administrative Agent.
"Letters of Credit" means any letters of credit (whether
standby letters of credit) Issued by the Issuing Bank pursuant to
Article III.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease or a
consignor under a true consignment agreement.
"Loan" means an extension of credit by a Bank to the Company
under Article II or Article III in the form of any Revolving Loan,
Swingline Loan or L/C Advance, and may be a Base Rate Loan or an
Offshore Rate Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, any Notes, the Collateral
Documents, the Fee Letters, any documents evidencing or relating to
Specified Swap Contracts, and all other documents delivered to the
Administrative Agent or any Bank in connection with the transactions
contemplated by this Agreement.
"Majority Banks" means at any time Banks then holding at least
66-2/3% of the then aggregate unpaid principal amount of the Loans, or,
if no such principal amount is then outstanding, Banks then having at
least 66-2/3% of the Commitments, or, if the Commitments have been
terminated and no Loans are then outstanding, Banks then owed a
Specified Swap Amount at least 66-2/3% of the Aggregate Specified Swap
Amount.
"Managed Care Subsidiary" shall mean (a) NVAL VisionCare Systems
of California, Inc., ProCare Eye Exam, Inc. and NVAL VisionCare
20
Systems of North Carolina, Inc. and (b) any other Subsidiary of the
Company formed or acquired after the Closing Date whose financial
condition or activities are regulated under the laws of any state in
connection with its provision of health or vision care products or
services (or related administrative services) and shall include, and
without limitation, a health maintenance organization (whether single
or multi service), third party administrator or any entity similar to
any of the foregoing.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company or the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company or any Restricted
Subsidiary to perform under any Loan Document and to avoid any Event of
Default; or (c) a material adverse effect upon (i) the legality,
validity, binding effect or enforceability against the Company or any
Restricted Subsidiary of any Loan Document, or (ii) the perfection or
priority of any Lien granted under any of the Collateral Documents.
"Mortgage" means any deed of trust, mortgage, leasehold mortgage,
assignment of rents or other document executed and delivered after the
Closing Date creating a Lien on real property or any interest in real
property of the Company or any Restricted Subsidiary of the Company in
favor of the Administrative Agent.
"Mortgaged Property" means all property subject to a Lien
pursuant to a Mortgage.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"Net Income" means, with respect to any Person on a consolidated
basis for any period, its net income (or deficit) determined in
accordance with GAAP. Unless the context clearly provides otherwise,
any reference to Net Income in this Agreement shall be to the Net
Income of the Company and its Restricted Subsidiaries on a consolidated
basis.
"Net Proceeds" means, as to any Disposition by a Person, proceeds
in cash, checks or other cash equivalent financial instruments as and
when received by such Person, net of: (a) the direct costs relating to
such Disposition excluding amounts payable to such Person or any
Affiliate of such Person, (b) income, sale, use or other transaction
taxes paid or payable by such Person as a direct result thereof, and
(c) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on
the asset which is the subject of such Disposition and (d) appropriate
amounts to be set aside by the Company or any Restricted Subsidiary, as
the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such
21
Disposition and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Disposition, including
without limitation pension and other post-employment benefit
liabilities, liabilities related to environment matters and
liabilities under any indemnification obligations associated with
such Disposition. " Net Proceeds" shall also include proceeds
paid on account of any Event of Loss, net of (i) all money
actually applied to repair or reconstruct the damaged property or
property affected by the condemnation or taking, (ii) all of the
costs and expenses reasonably incurred in connection with the
collection of such proceeds, award or other payments, (iii) any
amounts retained by or paid to parties having superior rights to
such proceeds, awards or other payments and (iv) income taxes or
other taxes paid or payable as a direct result thereof.
"New West" means New West Eyeworks, Inc., a Delaware corporation.
"New West Purchase Agreement" means that certain Agreement and
Plan of Merger dated as of July 13 ,1998, as amended as of October 5,
1998, among New West, the Company and NW Acquisition Corp., a Delaware
corporation evidencing a purchase price by the Company in an amount not
more than $69,000,000, in form and substance satisfactory to the
Agents.
"New West Purchase Documents" means those certain documents
executed in connection with the transaction contemplated by the New
West Purchase Agreement, in form and substance satisfactory to the
Agents.
"Note" means a promissory note executed by the Company in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit D.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit E.
"Notice of Conversion / Continuation" means a notice in
substantially the form of Exhibit F.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the
Company to any Bank, the Administrative Agent, the Documentation Agent
or any Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"Offshore Rate" means, with respect to each Offshore Rate Loan
comprising part of the same Borrowing for any Interest Period, an
interest rate per annum obtained by dividing (i) (y) the rate of
interest (rounded upward, if necessary, to the nearest 1/16 of one
percentage point) appearing on Telerate Page 3750 (or any successor
page) or (z) if no such rate is available, the rate of interest
determined by the Administrative Agent to be the rate or the arithmetic
mean of rates (rounded upward, if necessary, to the nearest 1/16 of one
percentage point) at which Dollar deposits in immediately available
funds are offered by First Union to first-tier banks in the London
interbank Eurodollar market, in each case under (y) and (z) above at
approximately 11:00 a.m., London time, two (2) Business Days prior to
the first day of such Interest Period for a period substantially equal
to
22
such Interest Period and in an amount substantially equal to the amount of
First Union's Offshore Rate Loan comprising part of such Borrowing, by (ii)
the amount equal to 1.00 minus the Reserve Requirement (expressed as a
decimal) for such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection
11.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Swap Obligations" means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising under
Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such Person
in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person in conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a
"market view;" (b) such Swap Contracts do not contain (i) any provision
("walk-away" provision) exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party, or (ii) with respect to any Swap Contract that is not a Specified
Swap Contract, any provision creating or permitting the declaration of an
event of default, termination event or similar event upon the occurrence of
an Event of Default hereunder (other than an Event of Default under
subsection 9.01(a)), and (c) a perfected security interest in such Person's
rights and interests to and in such Swap Contracts has been granted, and
exists, in favor of the Administrative Agent, for the benefit of the Banks,
as collateral for the Obligations.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
23
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"Pledge Agreement" means that certain Pledge Agreement of even
date herewith between the Company and the Administrative Agent,
together with any other pledge agreement executed and delivered after
the date hereof between the Company and the Administrative Agent, all
of such documents substantially in the form of Exhibit G.
"Pledged Collateral" has the meaning specified in the Pledge
Agreement.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place)
at such time of such Bank's Commitment (or Loans if the Commitment is
no longer in effect) divided by the combined Commitments (or Loans if
the Commitment is no longer in effect) of all Banks.
"Purchase Money Indebtedness " means any Indebtedness of the
Company or its Restricted Subsidiaries incurred for the purpose of
financing all or any part of the purchase price or the cost of
installation, construction or improvement of any property.
"Qualified Proceeds " means any of the following or any
combination of the following: (i) cash, (ii) cash equivalents, (iii)
assets that are used or usable in the business of the Company and its
Restricted Subsidiary as existing on the Closing Date or a business
reasonably related or complimentary thereto and (iv) capital stock of
any Person engaged primarily in the business of the Company and its
Restricted Subsidiaries as existing on the Closing Date or a business
reasonably related or complimentary thereto if, in connection with the
receipt by the Company or any Restricted Subsidiary of the Company of
such Stock: (A) such Person becomes a Restricted Subsidiary or (B) such
Person is merged with or into or transfers or conveys substantially all
or all of its assets to, or is liquidated into, the Company or any
Restricted Subsidiary of the Company.
"Reference Bank" means First Union.
"Replacement Bank" has the meaning specified in Section 4.07.
"Reportable Event" means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Reserve Requirement" means, with respect to any Interest Period,
the reserve percentage (expressed as a decimal) in effect from time to
time during such Interest Period, as provided by the Federal Reserve
Board, applied for determining the maximum reserve requirements
(including, without limitation, basic, supplemental, marginal and
emergency reserves) applicable to First Union under Regulation D with
respect to "Eurocurrency liabilities" within the meaning of Regulation
D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding.
24
"Responsible Officer" means the chief executive officer, the
chief financial officer or the president of the Company, or any other
officer having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the chief financial
officer, the controller or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility.
"Restricted Subsidiary" means any direct or indirect Subsidiary
of the Company other than an Unrestricted Subsidiary.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Termination Date" means the earlier to occur of:
(a) September 30, 2001; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Security Agreement" means that certain Security Agreement of
even date herewith between the Company and the Administrative Agent,
substantially in the form of Exhibit H.
"Senior Notes" means those certain senior unsecured notes due
2005 issued by the Company pursuant to the Indenture, which notes, among
other things, (i) may not accrue interest at a rate in excess of twelve
and three quarters of one percent (12.75%) per annum (ii) may not yield
to the holders thereof upon issuance a rate of return in excess of
thirteen percent (13%) per annum, (iii) must generate at least
$123,000,000 of proceeds to the Company (after deducting original issue
discount from the gross proceeds thereof) and (iv) must at all times be
unsecured obligations of the Company, in form and substance
satisfactory to the Agents.
"Solvent" means, as to any Person at any time, that (a) the fair
value of the property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(31) of the Bankruptcy Code; (b)
the present fair saleable value of the property of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay
its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of
business; (d) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
as such debts and liabilities mature; and (e) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute unreasonably small capital.
25
"Specified Swap Amount" means, at any time, in respect of
Specified Swap Contracts to which any Swap Provider is party, the Swap
Termination Value relating thereto; provided that for purposes of this
definition, any Swap Termination Value that is negative as to (i.e.,
owing by) any Swap Provider shall be deemed equal to zero (0).
"Specified Swap Contract" means any Swap Contract made or entered
into at any time, or in effect at any time (whether heretofore or
hereafter), whether directly or indirectly, and whether as a result
of assignment or transfer or otherwise, between the Company and any Swap
Provider which Swap Contract is or was intended by the Company to have
been entered into, in part or entirely, for purposes of mitigating
interest rate or currency exchange risk relating to any Loan (which
intent shall conclusively be deemed to exist if the Company so
represents to the Swap Provider in writing), and as to which the final
scheduled payment by the Company is not later than the Revolving
Termination Date.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty of
even date herewith executed and delivered by the Restricted
Subsidiaries in favor of the Administrative Agent, together with any
other subsidiary guaranty executed or delivered after the date hereof,
all of such documents substantially in the form of Exhibit I.
"Subsidiary Pledge Agreement" means that certain Subsidiary
Pledge Agreement of even date herewith between Frame-n-Lens and the
Administrative Agent, together with any other subsidiary pledge
agreement executed and delivered after the date hereof, all of such
documents substantially in the form of Exhibit J.
"Subsidiary Security Agreement" means that certain Subsidiary
Security Agreement of even date herewith among the Restricted
Subsidiaries and the Administrative Agent, together with any other
subsidiary security agreement executed and delivered after the date
hereof, all of such documents substantially in the form of Exhibit K.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement now existing or hereafter
entered into, whether or not in writing, relating to any transaction
that is a rate swap, basis swap, forward rate transaction, commodity
26
swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
"Swap Provider" means any Bank, or any Affiliate of any Bank,
that is at the time of determination party to a Swap Contract with the
Company.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank.)
"Swingline Bank" means First Union.
"Swingline Commitment" has the meaning specified in Section
2.15(a).
"Swingline Loan" has the meaning specified in Section 2.15(a).
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Bank and the Administrative Agent, respectively, taxes
imposed on or measured by its net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Administrative Agent, as the case may be, is organized or maintains a
Lending Office.
"Tender Offer" means the cash tender offer commenced by the
Company on July 20, 1998 for all of the shares of common stock of New
West at a cash purchase price of $11.50 per share.
"Type" has the meaning specified in the definition of "Loan."
"UCC" means the Uniform Commercial Code as in effect in the
State of Georgia.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412 of
the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Unrestricted Subsidiaries" means the Foreign Subsidiaries, the
Managed Care Subsidiaries and each other direct or indirect Subsidiary
of the Company designated as an "Unrestricted Subsidiary" by the
Company and such designation is consented to by the Majority Banks;
provided, however, that each Managed Care Subsidiary existing on the
Closing Date shall use its reasonable efforts to obtain the approval of
27
the requisite regulatory entity for it to become a Restricted Subsidiary
as promptly as practicable after the Closing Date and each Person which
becomes a Managed Care Subsidiary after the Closing Date shall use its
reasonable efforts to obtain the requisite regulatory approval for it
to become a Restricted Subsidiary as promptly as applicable after it
becomes a Managed Care Subsidiary; provided further that with regard to
any domestic Subsidiary of the Company formed after the Closing Date
which is or seeks to become a Managed Care Subsidiary such Subsidiary's
obligations as a Restricted Subsidiary under a Subsidiary Guaranty,
Subsidiary Security Agreement and Subsidiary Pledge Agreement (if
applicable) to be issued pursuant to Section 7.17 of this Agreement
shall only become effective if (a) the approval of the requisite
regulatory entity is obtained (if such approval is required) and (b)
the granting of the Subsidiary Guaranty, Subsidiary Security Agreement
and Subsidiary Pledge Agreement (if applicable) by such Subsidiary
shall not have a material adverse effect upon the business, operations,
assets, condition (financial or otherwise) or prospects of such
Subsidiary (a "material adverse effect"); provided that if a Subsidiary
Guaranty, Subsidiary Security Agreement and Subsidiary Pledge Agreement
(if applicable) is not issued by such Subsidiary in reliance on the
provisions of this clause (b), the Company shall deliver an officers'
certificate to the Administrative Agent stating that the granting of
such Subsidiary Guaranty, Subsidiary Security Agreement and Subsidiary
Pledge Agreement (if applicable) would have a material adverse effect,
and provided, further that such obligation under the Subsidiary
Guaranty shall be limited to the maximum amount which such Subsidiary
would be permitted to declare or pay as a dividend in compliance with
the applicable rules or regulations of, or undertakings made to, any
regulatory entity having jurisdiction and authority over such
Subsidiary. No Subsidiary may be designated as an Unrestricted
Subsidiary hereunder if it is a "Guarantor" as defined in the Indenture
as in effect on the Closing Date.
"Value of the Eligible Inventory" shall mean, at any particular
date, the lower of the fair market value of the Eligible Inventory or
its cost, valued in accordance with the "First-In, First-Out" method of
accounting.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law, or other nominal
interests in the case of any Foreign Subsidiary) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case,at the time as of
which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
Section 1.02 Other Interpretive Provisions.
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
28
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) 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."
(iv) The term "property" includes any kind of
property or asset, real, personal or mixed, tangible or
intangible.
(d) Unless otherwise expressly provided herein,
(i) references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or
regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement
are for convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) This Agreement and 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 shall each be performed in accordance
with their terms. Unless otherwise expressly provided, any reference
to any action of the Administrative Agent, Documentation Agent or the
Banks by way of consent, approval or waiver shall be deemed modified
by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents
are the result of negotiations among and have been reviewed by counsel
to the Administrative Agent, the Documentation Agent, the Company and
the other parties, and are the products of all parties. Accordingly,
they shall not be construed against the Banks, the Documentation Agent
or the Administrative Agent merely because of the Administrative
Agent's, the Documentation Agent's or Banks' involvement in their
preparation.
Section 1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires,
all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
29
ARTICLE II
THE CREDITS
Section 2.01 The Revolving Credit.
Each Bank severally agrees, on the terms and conditions set
forth herein, in accordance with its Pro Rata Share and not jointly,
to make loans to the Company (each such loan, a "Revolving Loan") from
time to time on any Business Day during the period from the Closing
Date to the Revolving Termination Date, in an aggregate amount not to
exceed at any time outstanding the lesser of (i) the Borrowing Base
and (ii) the Commitment; provided, however, that the aggregate amount
of the Loans advanced and Letters of Credit issued on the date of the
initial Borrowing shall not exceed $10,000,000. Within the limits of
each Bank's Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this section 2.01, prepay under
Section 2.06 and reborrow under this section 2.01.
Section 2.02 Loan Accounts.
(a) The Loans made by each Bank and the Swingline
Bank and Letters of Credit Issued by the Issuing Bank shall be
evidenced by one or more loan accounts or records maintained by such
Bank, Swingline Bank or the Issuing Bank in the ordinary course of
business. The accounts or records maintained by the Administrative
Agent, each Bank and the Swingline Bank shall be conclusive absent
manifest error of the amount of the Loans made by the Banks and the
Swingline Bank to the Company and the Letters of Credit issued for the
account of the Company, and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Company hereunder to
pay any amount owing with respect to the Loans or any Letter of
Credit.
(b) Upon the request of any Bank made through the
Administrative Agent, the Loans made by such Bank or the Swingline
Bank, as the case may be, may be evidenced by one or more Notes,
instead of or in addition to loan accounts. Each such Bank or the
Swingline Bank, as the case may be, shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Company
with respect thereto. Each such Bank or the Swingline Bank, as the
case may be, is irrevocably authorized by the Company to endorse its
Note(s) and each Bank's or Swingline Bank's, as the case may be,
record shall be conclusive absent manifest error; provided, however,
that the failure of a Bank or the Swingline Bank, to make, or an error
in making, a notation thereon with respect to any Loan shall not limit
or otherwise affect the obligations of the Company hereunder or under
any such Note to such Bank or the Swingline Bank.
Section 2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans shall be made
upon the Company's irrevocable written notice delivered to the
Administrative Agent in the form of a Notice of Borrowing (which
notice must be received by the Administrative Agent prior to 11:00
a.m. (Charlotte, North Carolina time) (i) three Business Days prior to
the requested Borrowing Date, in the case of Offshore Rate Loans; and
(ii) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans, specifying:
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(A) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $1,000,000 or any multiple of
$500,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing;
(D) that the Loans requested are Revolving Loans (rather
than Swingline Loans); and
(E) the duration of the Interest Period applicable to
such Loans included in such notice. If the Notice of Borrowing
fails to specify the duration of the Interest Period for any
Borrowing comprised of Offshore Rate Loans, such Interest Period
shall be one (1) month.
[provided, however, that with respect to the Borrowing to be made on
the Closing Date, the Notice of Borrowing shall be delivered to the
Administrative Agent not later than 11:00 a.m. (Charlotte, North
Carolina time) on the Closing Date and such Borrowing will consist of
Base Rate Loans only.
(b) The Administrative Agent will promptly notify
each Bank of its receipt of any Notice of Borrowing or Revolving Loans
and of the amount of such Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata
Share of each Borrowing available to the Administrative Agent for the
account of the Company at the Administrative Agent's Payment Office by
11:00 a.m. (Charlotte, North Carolina time) on the Borrowing Date
requested by the Company in funds immediately available to the
Administrative Agent. The Company hereby authorizes the
Administrative Agent to disburse the proceeds of each Borrowing in
accordance with the terms of any written instructions from any of the
Responsible Officers, provided that the Administrative Agent shall not
be obligated under any circumstances to forward amounts to any account
not listed in an Account Designation Letter. The Company may at any
time deliver to the Administrative Agent an Account Designation Letter
listing any additional accounts or deleting any accounts listed in a
previous Account Designation Letter.
(d) After giving effect to any Borrowing, unless
the Administrative Agent shall otherwise consent, there may not be
more than five (5) different Interest Periods in effect.
Section 2.04 Conversion and Continuation Elections.
(a) The Company may, with respect to Revolving
Loans, upon irrevocable written notice to the Administrative Agent in
accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable
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Interest Period, in the case of any other Type of Revolving
Loans, to convert any such Revolving Loans (or any part
thereof in an amount not less than $1,000,000, or that is in
an integral multiple of $500,000 in excess thereof) into
Revolving Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Revolving Loans having
Interest Periods expiring on such day (or any part thereof
in an amount not less than $1,000,000, or that is in an
integral multiple of $500,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate
Loans in respect of any Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to be less than $1,000,000, such
Offshore Rate Loans shall automatically convert into Base Rate Loans,
and on and after such date the right of the Company to continue such
Revolving Loans as, and convert such Loans into, Offshore Rate Loans
shall terminate.
(b) The Company shall deliver a Notice of Conversion /
Continuation to be received by the Administrative Agent not later than
11:00 a.m. (Charlotte, North Carolina time) at least (i) three
Business Days in advance of the Conversion / Continuation Date, if the
Revolving Loans are to be converted into or continued as Offshore Rate
Loans; and (ii) one Business Day in advance of the Conversion /
Continuation Date, if the Revolving Loans are to be converted into
Base Rate Loans, specifying:
(A) the proposed Conversion / Continuation
Date;
(B) the aggregate amount of Revolving Loans
to be converted or continued;
(C) the Type of Revolving Loans resulting
from the proposed conversion or continuation; and
(D) other than in the case of conversions
into Base Rate Loans, the duration of the
requested Interest Period.
(c) If upon the expiration of any Interest
Period applicable to Offshore Rate Loans, the Company has failed to
select timely a new Interest Period to be applicable to such Offshore
Rate Loans or if any Default or Event of Default then exists, the
Company shall be deemed to have elected to convert such Offshore Rate
Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly
notify each Bank of its receipt of a Notice of Conversion /
Continuation, or, if no timely notice is provided by the Company, the
Administrative Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations shall be
made ratably according to the respective outstanding principal amounts
of the Revolving Loans with respect to which the notice was given held
by each Bank.
(e) Unless the Majority Banks otherwise consent,
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during the existence of a Default or Event of Default, the Company may
not elect to have a Revolving Loan converted into or continued as an
Offshore Rate Loan.
(f) After giving effect to any conversion or
continuation of Loans, unless the Administrative Agent shall otherwise
consent, there may not be more than five (5) different Interest
Periods in effect.
Section 2.05 Voluntary Termination or Reduction of Commitments.
(a) The Company may, upon not less than five
Business Days' prior notice to the Administrative Agent, terminate the
Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $1,000,000 or any multiple of $500,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, (a) the Effective Amount of
all Revolving Loans, Swingline Loans and L/C Obligations together
would exceed the amount of the combined Commitments then in effect, or
(b) the Effective Amount of all L/C Obligations then outstanding would
exceed the L/C Commitment. Once reduced in accordance with this
Section, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Bank according to its Pro Rata
Share. If and to the extent specified by the Company in the notice to
the Administrative Agent, some or all of the reduction in the combined
Commitments of the Banks shall be applied to reduce the L/C
Commitment. All accrued commitment and letter of credit fees to, but
not including, the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such reduction or
termination.
(b) At no time shall the Swingline Commitment
exceed the Commitment, and any reduction of the Commitment which
reduces the Commitment below the then-current amount of the Swingline
Commitment shall result in an automatic corresponding reduction of the
Swingline Commitment to the amount of the Commitment, as so reduced,
without any action on the part of the Swingline Bank. At no time
shall the Swingline Commitment exceed the Swingline Bank's (in its
capacity as a Bank) Pro Rata Share of the Commitment, and any
reduction of the Commitment which reduces the Swingline Bank's (in its
capacity as a Bank) Pro Rata Share of the Commitment below the
then-current amount of the Swingline Commitment shall result in an
automatic corresponding reduction of the Swingline Commitment to the
amount of the Swingline Bank's (in its capacity as a Bank) Commitment,
as so reduced, without any action on the part of the Swingline Bank.
Section 2.06 Optional Prepayments.
Subject to Section 4.04, the Company may, at any time or from
time to time, upon not less than three Business Days' irrevocable
notice to the Administrative Agent, (a) ratably prepay the Revolving
Loans in whole or in part, in minimum amounts of $1,000,000 or any
multiple of $500,000 in excess thereof, and (b) prepay in whole or in
part Swingline Loans, in minimum amounts of $1,000,000 or any multiple
of $500,000 in excess thereof, or in other amounts with the consent of
33
the Swingline Bank. Such notice of prepayment shall specify the date
and amount of such prepayment and the Type(s) of Loans to be prepaid.
The Administrative Agent will promptly notify each Bank of its receipt
of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.
2.07 Mandatory Prepayments of Loans.
(a) The principal balance of all Loans then
outstanding shall be due and payable in full on the Revolving
Termination Date.
(i) Notwithstanding the foregoing,
however, in the event that at any time and
for any reason there shall exist a Borrowing Base
Deficiency, the Company shall immediately pay to
the Administrative Agent an amount equal to the
Borrowing Base Deficiency, which payment shall
constitute a mandatory payment of the Loans
hereunder.
(ii) If on any date the Effective Amount
of L/C Obligations exceeds the L/C Commitment,
the Company shall Cash Collateralize on such date the
outstanding Letters of Credit in an amount
equal to the excess of the maximum amount then
available to be drawn under the Letters of
Credit over the L/C Commitment. Subject to Section
4.04, if on any date after giving effect to any Cash
Collateralization made on such date pursuant to the
preceding sentence, the Effective Amount of all
Revolving Loans then outstanding, plus the Effective
Amount of all L/C Obligations, plus the
Effective Amount of all Swingline Loans exceeds the
combined Commitments of the Banks, the Company
shall immediately, and without notice or demand,
prepay the outstanding principal amount of the
Revolving Loans and L/C Advances by an amount equal
to the applicable excess.
(iii) Swingline Loans. The Company shall
be required to prepay Swingline Loans on each
Clean-Up Day as provided in subsection 2.15(d), and
if following any reduction of the Swingline
Commitment pursuant to subsection 2.05(b) the
aggregate outstanding principal amount of Swingline
Loans would exceed the Swingline Commitment as
reduced, the Company shall prepay on the reduction
date the outstanding principal amount of the
Swingline Loans, in an amount equal to the excess
(after giving effect to the scheduled Swingline
Commitment reduction) of the Swingline Loans over
the Swingline Commitment; together, in each case,
with all accrued and unpaid interest thereon.
(b) Any prepayments pursuant to this Section
2.07 shall be applied first to any Base Rate Loans then outstanding
and then to Offshore Rate Loans with the shortest Interest Periods
remaining; provided, however, that if the amount of Base Rate Loans
then outstanding is not sufficient to satisfy the entire prepayment
requirement, the Company may, at its option, place any amounts which
34
it would otherwise be required to use to prepay Offshore Rate Loans on
a day other than the last day of the Interest Period therefor in an
interest-bearing account pledged to the Administrative Agent for the
benefit of the Banks until the end of such Interest Period at which
time such pledged amounts will be applied to prepay such Offshore Rate
Loans.
(c) The principal balance of the Loans shall
also be repaid from Net Proceeds as provided in Section 8.02 (c)
hereof. Upon the making of any mandatory prepayment as provided in
Section 8.02 (c) except with respect to the Arizona Property, the
Commitment of each Bank shall automatically be reduced by an amount
equal to such Bank's Pro Rata Share of the aggregate of principal
repaid, effective as of the earlier of the date that such prepayment
is made or the date by which such prepayment is due and payable
hereunder.
Section 2.08 Interest.
(a) Each Revolving Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Offshore Rate or the Base Rate,
as the case may be (and subject to the Company's right to convert to
other Types of Loans under Section 2.04 and subject to whether an
Event of Default exists and is continuing), plus the Applicable
Margin. Each Swingline Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing date at a rate
per annum equal to the Base Rate, plus the Applicable Margin.
(b) Interest on each Loan shall be paid in
arrears on each Interest Payment Date provided that, in the event that
the Loans are repaid or prepaid in full and all the Banks' Commitments
are terminated, then accrued interest in respect of all Loans shall be
payable together with such repayment or prepayment on the date
thereof; and provided further, that in the event all Offshore Rate
Loans made pursuant to a single Borrowing are repaid or prepaid in
full, then accrued interest in respect of such Offshore Rate Loan
shall be payable together with such repayment or prepayment on the
date thereof.
(c) Notwithstanding subsection (a) of this
Section, while any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of judgment
thereon to the extent permitted by law) on the principal amount of all
outstanding Obligations, at a rate per annum which is determined by
adding two percent (2%) per annum to the Applicable Margin then in
effect for such Loans and, in the case of Obligations not subject to
an Applicable Margin, at a rate per annum equal to the Base Rate plus
four percent (4%) and, upon the occurrence and during the continuance
of an Event of Default and request by the Majority Banks, the
Administrative Agent shall convert all outstanding Offshore Rate Loans
into Base Rate Loans.
(d) Anything herein to the contrary
notwithstanding, the obligations of the Company to any Bank hereunder
shall be subject to the limitation that payments of interest shall not
be required for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest
rate of interest that may be lawfully contracted for, charged or
received by such Bank, and in such event the Company shall pay such
Bank interest at the highest rate permitted by applicable law.
Section 2.09 Fees.
35
(a) Arrangement, Agency Fees. The Company shall
pay the fees provided for in that certain letter between the Company and
the Administrative Agent and that certain letter between the Company and the
Documentation Agent, each of even date herewith (collectively, the "Fee
Letters"). Such fees shall be fully earned when due and nonrefundable when
paid.
(b) Commitment Fees. The Company shall pay to
the Administrative Agent for the account of each Bank a commitment fee
on each such Bank's Pro Rata Share of the Available Loan Commitment,
computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily average Available Loan
Commitment for that quarter as calculated by the Administrative Agent,
equal to .500% percent per annum, to be adjusted based upon the ratio
of the Company's and its Subsidiaries' (on a consolidated basis)
Indebtedness to Adjusted EBITDA for the most recently ended four fiscal
quarter period as set forth in the table below:
If the ratio of Indebtedness to The Commitment Fee shall be equal
Adjusted EBITDA is: to the following per annum rate:
greater than 4.0 to 1.0 0.500%
less than or equal to 4.0 to 1.0 0.375%
and greater than 2.5 to 1.0
less than or equal to 2.5 to 1.0 0.250%
The commitment fee adjustment provided for in the table above shall be
effective (i) with respect to an increase in such commitment fee, as of
the tenth (10th) Business Day after the day on which financial statements
are required to be delivered to the Administrative Agent pursuant to
Section 7.01 hereof, and (ii) with respect to any decrease in
such commitment fee, as of the later of (x) the tenth (10th) Business
Day after which such financial statements are required to be delivered
to the Administrative Agent pursuant to Section 7.01, and (y) the date on
which such financial statements are actually delivered to the Administrative
Agent provided, however, that, notwithstanding the foregoing or anything else
herein to the contrary, if at any time the Company shall have failed to deliver
the financial statements and a Compliance Certificate as required by
Section 7.01(a) or Section 7.01(b), as the case may be, and Section 7.02(b),
or if at any time an Event of Default shall have occurred and be continuing,
then at the election of the Majority Banks, at all times from and including
the date on which such statements and Compliance Certificate are required
to have been delivered (or the date of the occurrence of such Event of
Default, as the case may be) to the date on which the same shall have
been delivered (or such Event of Default is cured or waived, as the
case may be), each Applicable Margin shall be determined in accordance
with the above matrix as if the ratio of the Company's Indebtedness to
Adjusted EBITDA for the most recently ended four fiscal quarter period
were greater than or equal to 4.5 to 1.0 (notwithstanding the actual ratio).
Such commitment fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on
December 31, 1998 through the Revolving Termination Date, with the final
payment to be made on the Revolving Termination Date. The commitment
fees provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which
one or more conditions in Article IV are not met.
36
Section 2.10 Computation of Fees and Interest.
(a) All computations of interest for Base Rate
Loans when the Base Rate is determined by First Union's "reference
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 interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by
the Administrative Agent shall be conclusive and binding on the
Company and the Banks in the absence of manifest error. The
Administrative Agent will, at the request of the Company or any Bank,
deliver to the Company or the Bank, as the case may be, a statement
showing the quotations used by the Administrative Agent in determining
any interest rate and the resulting interest rate.
(c) If the Reference Bank's Commitment
terminates (other than on termination of all the Commitments), or for
any reason whatsoever the Reference Bank ceases to be a Bank
hereunder, the Reference Bank shall thereupon cease to be a Reference
Bank, and the Offshore Rate shall be determined on the basis of the
rates as notified by a new Reference Bank designated as such by the
Majority Banks.
Section 2.11 Payments by the Company.
(a) All payments to be made by the Company shall
be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall
be made to the Administrative Agent for the account of the Banks at
the Administrative Agent's Payment Office, and shall be made in
dollars and in immediately available funds, no later than 12:00 noon
(Charlotte, North Carolina time) on the date specified herein. The
Administrative Agent will promptly distribute to each Bank its Pro
Rata Share (or other applicable share as expressly provided herein) of
such payment in like funds as received. Any payment received by the
Administrative Agent later than 12:00 noon (Charlotte, North Carolina
time) shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) All payments (including prepayments) to be
made by the Company to the Swingline Bank on account of principal,
interest, fees and other amounts required hereunder with respect to
Swingline Loans shall be made without set-off or counterclaim and
shall be made to the Agent for the account of the Swingline Bank in
accordance with Section 2.15, and all payments to be made by the
Company to any Issuing Bank on account of drawings, interest, fees and
other amounts required hereunder with respect to any Letter of Credit
issued by it shall be made without set-off or counterclaim and shall
be made to the Agent for the account of such Issuing Bank in
accordance with Article III, except in each case to the extent that a
Bank is entitled to share in any such payment as a result of its
participation therein in accordance with the provisions of Section
2.13 or 3.03, as the case may be.
37
(c) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is due on
a day other than a Business Day, such payment shall be made on the
following Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, as the case may
be.
(d) Unless the Administrative Agent receives
notice from the Company prior to the date on which any payment is due
to the Banks that the Company will not make such payment in full as
and when required, the Administrative Agent may assume that the
Company has made such payment in full to the Administrative Agent on
such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption,
distribute to each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent the Company has not made
such payment in full to the Administrative Agent, each Bank shall
repay to the Administrative Agent on demand such amount distributed to
such Bank, together with interest thereon at the Federal Funds Rate
for each day from the date such amount is distributed to such Bank
until the date repaid.
Section 2.12 Payments by the Banks to the Administrative Agent.
(a) Unless the Administrative Agent receives
notice from a Bank on or prior to the Closing Date or, with respect to
any Borrowing after the Closing Date, at least one Business Day prior
to the date of such Borrowing, that such Bank will not make available
as and when required hereunder to the Administrative Agent for the
account of the Company the amount of that Bank's Pro Rata Share of the
Borrowing, the Administrative Agent may assume that each Bank has made
such amount available to the Administrative Agent in immediately
available funds on the Borrowing Date and the Administrative Agent may
(but shall not be so required), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and
to the extent any Bank shall not have made its full amount available
to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following
such Borrowing Date make such amount available to the Administrative
Agent, together with interest at the Federal Funds Rate for each day
during such period. A notice of the Administrative Agent submitted to
38
any Bank with respect to amounts owing under this subsection (a) shall
be conclusive, absent manifest error. If such amount is so made
available, such payment to the Administrative Agent shall constitute
such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative
Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the Company of such failure to fund
and, upon demand by the Administrative Agent, the Company shall pay
such amount to the Administrative Agent for the Administrative Agent's
account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on
any Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on any Borrowing Date.
Section 2.13 Sharing of Payments, Etc.
If, other than as expressly provided elsewhere herein, any
Bank shall obtain on account of the Obligations in its favor any
payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or
other share contemplated hereunder), such Bank shall immediately (a)
notify the Administrative Agent of such fact, and (b) purchase from
the other Banks such participations in the Loans made by them as shall
be necessary to cause such purchasing Bank to share the excess payment
pro rata with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and
each other Bank shall repay to the purchasing Bank the purchase price
paid therefor, together with an amount equal to such paying Bank's
ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 11.10) with respect to such
participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation. The Administrative Agent
will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this
Section and will in each case notify the Banks following any such
purchases or repayments.
Section 2.14 Security.
(a) All obligations of the Company and its
Restricted Subsidiaries under this Agreement, the Notes and all other
Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Company under this
Agreement, each of the Notes and all other Loan Documents shall be
unconditionally guaranteed by the Restricted Subsidiaries pursuant to
the Subsidiary Guaranty.
Section 2.15 Swingline Loan.
(a) Subject to the terms and conditions hereof,
the Swingline Bank agrees to make a portion of the Commitment available
to the Company by making swingline loans (individually, a "Swingline Loan";
39
collectively, the "Swingline Loans") to the Company on any Business
Day during the period from the Closing Date to the Revolving
Termination Date in accordance with the procedures set forth in this
Section 2.15 in an aggregate principal amount at any one time
outstanding not to exceed Three Million Dollars ($3,000,000),
notwithstanding the fact that such Swingline Loans, when aggregated
with the Swingline Bank's outstanding Revolving Loans and L/C
Advances, may exceed the Swingline Bank's Commitment (the amount of
such commitment of the Swingline Bank to make Swingline Loans to the
Company pursuant to this subsection 2.15(a), as the same shall be
reduced pursuant to subsection 2.05(b) or as a result of any
assignment pursuant to Section 11.07, the Swingline Bank's "Swingline
Commitment"); provided, that at no time shall (i) the sum of the
Effective Amount of all Swingline Loans plus the Effective Amount of
all Revolving Loans plus the Effective Amount of all L/C Obligations
exceed the Commitment, or (ii) the Effective Amount of all Swingline
Loans exceed the Swingline Commitment. Additionally, no more than
three Swingline Loans may be outstanding at any one time, and all
Swingline Loans shall at all times be Base Rate Loans. Within the
foregoing limits, and subject to the other terms and conditions
hereof, the Company may borrow under this subsection 2.15(a), prepay
pursuant to Section 2.06 and reborrow pursuant to this subsection
2.15(a).
(b) The Company shall provide the Administrative
Agent (with a copy to the Swingline Bank) irrevocable written notice
(including notice via facsimile confirmed immediately by a telephone
call) in the form of a Notice of Borrowing of any Swingline Loan
requested hereunder (which notice must be received by the Swingline
Bank and the Administrative Agent prior to 11.00 a.m. (Charlotte,
North Carolina time) on the requested Borrowing date) specifying (i)
the amount to be borrowed, and (ii) the requested Borrowing date,
which must be a Business Day. Upon receipt of the Notice of
Borrowing, the Swingline Bank will immediately confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the Notice of Borrowing
from the Company and, if not, the Swingline Bank will provide the
Administrative Agent with a copy thereof. Unless the Swingline Bank
has received notice prior to 1:00 p.m. (Charlotte, North Carolina
time) on such Borrowing date from the Administrative Agent (including
at the request of any Bank) (A) directing the Swingline Bank not to
make the requested Swingline Loan as a result of the limitations set
forth in the proviso set forth in the first sentence of subsection
2.15(a); or (B) that one or more conditions specified in Article V are
not then satisfied; then, subject to the terms and conditions hereof,
the Swingline Bank will, not later than 1:00 p.m. (Charlotte, North
Carolina time) on the Borrowing date specified in such Notice of
Borrowing, make the amount of its Swingline Loan available to the
Administrative Agent for the account of the Company at the
Administrative Agent's Payment Office in funds immediately available
to the Administrative Agent. The proceeds of such Swingline Loan will
then be made available to the Company by the Administrative Agent
crediting the account of the Company on the books of the Swingline
Bank with the aggregate of the amounts made available to the
Administrative Agent by the Swingline Bank and in like funds as
received by the Administrative Agent. Each Borrowing pursuant to this
Section shall be in an aggregate principal amount equal to five
hundred thousand dollars ($500,000) or a multiple of one hundred
thousand dollars ($100,000) in excess thereof, unless otherwise agreed
by the Swingline Bank. The Administrative Agent will notify the Banks
on a weekly basis if any Swingline Loan Borrowings occurred during
such week.
40
(c) The Company shall repay to the Swingline
Bank in full on the Revolving Termination Date the aggregate principal
amount of the Swingline Loans outstanding on the Revolving Termination
Date.
(d) For one Business Day during each successive
seven Business Day period the aggregate principal amount of Swingline
Loans shall be $0 (a "Clean-Up Day"). The Company shall prepay the
outstanding principal amount of the Swingline Loans in whole to the
extent required so that a Clean-Up Day may occur in each such
seven Business Day period as provided in this subsection 2.15(d)
(which Swingline Loans may not be reborrowed until such Clean-Up Day
has ended.
(e) If:
(1) any Swingline Loans shall remain outstanding
at 9:00 a.m. (Charlotte, North Carolina time) on the Business Day
immediately prior to a Clean-Up Day and by such time on such
Business Day the Administrative Agent shall have received
neither:
(A) a Notice of Borrowing delivered
pursuant to Section 2.03 requesting that Revolving
Loans be made pursuant to subsection 2.01 on the
Clean-Up Day in an amount at least equal to the
aggregate principal amount of such Swingline Loans;
nor
(B) any other notice indicating the
Company's intent to repay such Swingline Loans with
funds obtained from other sources; or
(2) any Swingline Loans shall remain outstanding
during the existence of a Default or Event of Default and the
Swingline Bank shall in its sole discretion notify the
Administrative Agent that the Swingline Bank desires that such
Swingline Loans be converted into Revolving Loans;
then the Administrative Agent shall be deemed to have received a
Notice of Borrowing from the Company pursuant to Section 2.03
requesting that Base Rate Loans be made pursuant to subsection 2.01 on
such Clean-Up Day (in the case of the circumstances described in
clause (1) above) or on the first Business Day subsequent to the date
of such notice from the Swingline Bank (in the case of the
circumstances described in clause (2) above) in an amount equal to
the aggregate amount of such Swingline Loans, and the procedures set
forth in subsections 2.03(b) and 2.03(c) shall be followed in making
such Base Rate Loans; provided, that such Base Rate Loans shall be
made notwithstanding the Company's failure to comply with subsections
5.03(b) and 5.03(c); and provided, further, that if a Borrowing of
Revolving Loans becomes legally impracticable and if so required by
the Swingline Bank at the time such Revolving Loans are required to be
made by the Banks in accordance with this subsection 2.15(e), each
Bank agrees that in lieu of making Revolving Loans as described in
this subsection 2.15(e), such Bank shall purchase a participation from
the Swingline Bank in the applicable Swingline Loans in an amount
equal to such Bank's Pro Rata Share of such Swingline Loans, and the
procedures set forth in subsections 2.03(b) and 2.03(c) shall be
followed in connection with the purchases of such participations.
41
Upon such purchases of participations the prepayment requirements of
subsection 2.15(d) shall be deemed waived with respect to such
Swingline Loans. The proceeds of such Base Rate Loans, or
participations purchased, shall be applied to repay such Swingline
Loans. A copy of each notice given by the Administrative Agent to the
Banks pursuant to this subsection 2.15(e) with respect to the making
of Revolving Loans, or the purchases of participations, shall be
promptly delivered by the Administrative Agent to the Borrower. Each
Bank's obligation in accordance with this Agreement to make the
Revolving Loans, or purchase the participations, as contemplated by
this subsection 2.15(e), shall be absolute and unconditional and shall
not be affected by any circumstance, including (x) any set-off,
counterclaim, recoupment, defense or other right which such Bank may
have against the Swingline Bank, the Company or any other Person for
any reason whatsoever; (y) the occurrence or continuance of a Default,
an Event of Default or a Material Adverse Effect; or (z) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
ARTICLE III
THE LETTERS OF CREDIT
Section 3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein
(i) the Issuing Bank agrees, (A) from time to time on any Business Day
during the period from the Closing Date to the Revolving Termination
Date to issue Letters of Credit for the account of the Company, and to
amend or renew Letters of Credit previously issued by it, in
accordance with subsections 3.02(c) and 3.02(d), and (B) to honor
drafts under the Letters of Credit; and (ii) the Banks severally agree
to participate in Letters of Credit Issued for the account of the
Company; provided, that the Issuing Bank shall not be obligated to
Issue, and no Bank shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date") (1) the Effective Amount of all L/C Obligations plus
the Effective Amount of all Revolving Loans plus the Effective Amount
of all Swingline Loans exceeds the combined Commitments of the Banks,
(2) the participation of any Bank in the Effective Amount of all L/C
Obligations plus the Effective Amount of the Revolving Loans of such
Bank plus such Bank's Pro Rata Share of the Effective Amount of all
Swingline Loans exceeds such Bank's Commitment, or (3) the Effective
Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other 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 which have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Bank is under no obligation to
Issue any Letter of Credit if:
42
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the Issuing Bank from Issuing such Letter
of Credit, or any Requirement of Law applicable to the Issuing
Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over
the Issuing Bank shall prohibit, or request that the Issuing
Bank refrain from, the Issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the Issuing Bank
any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Bank in good xxxxx
xxxxx material to it;
(ii) the Issuing Bank has received
written notice from any Bank, the Administrative Agent, the
Documentation Agent or the Company, on or prior to the Business
Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained
in Article V is not then satisfied;
(iii) the expiry date of any requested
Letter of Credit is (A) more than 365 days after the date of
Issuance, unless the Majority Banks have approved such expiry
date in writing, or (B) after the Revolving Termination Date,
unless all of the Banks have approved such expiry date in
writing;
(iv) any requested Letter of Credit does
not provide for drafts, or is not otherwise in form and substance
acceptable to the Issuing Bank, or the Issuance of a Letter of
Credit shall violate any applicable policies of the Issuing Bank;
(v) any standby Letter of Credit is for
the purpose of supporting the issuance of any letter of credit by
any other Person; or
(vi) such Letter of Credit is in a face
amount less than $100,000 or denominated in a currency other than
Dollars.
Section 3.02 Issuance, Amendment and Renewal of Letters of
Credit.
(a) Each Letter of Credit shall be issued upon
the irrevocable written request of the Company received by the Issuing
Bank (with a copy sent by the Company to the Administrative Agent) at
least five days (or such shorter time as the Issuing Bank may agree in
a particular instance in its sole discretion) prior to the proposed
date of issuance. Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall specify in form
and detail satisfactory to the Issuing Bank: (i) the proposed date of
issuance of the Letter of Credit (which shall be a Business Day); (ii)
the face amount of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary
thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text
43
of any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing Bank
may require.
(b) At least two Business Days prior to the
Issuance of any Letter of Credit, the Issuing Bank will confirm with
the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application or L/C
Amendment Application from the Company and, if not, the Issuing Bank
will provide the Administrative Agent with a copy thereof. Unless the
Issuing Bank has received notice on or before the Business Day
immediately preceding the date the Issuing Bank is to issue a
requested Letter of Credit from the Administrative Agent (A) directing
the Issuing Bank not to issue such Letter of Credit because such
issuance is not then permitted under subsection 3.01(a) as a result of
the limitations set forth in clauses (1) through (3) thereof or
subsection 3.01(b)(ii); or (B) that one or more conditions specified
in Article V are not then satisfied; then, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the Company in accordance
with the Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit
is outstanding and prior to the Revolving Termination Date, the
Issuing Bank will, upon the written request of the Company received by
the Issuing Bank (with a copy sent by the Company to the
Administrative Agent) at least five days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Letter
of Credit issued by it. Each such request for amendment of a Letter
of Credit shall be made by facsimile, confirmed immediately in an
original writing, made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to the Issuing Bank:
(i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall be
under no obligation to amend any Letter of Credit if: (A) the Issuing
Bank would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms of this Agreement; or (B)
the beneficiary of any such Letter of Credit does not accept the
proposed amendment to the Letter of Credit. The Administrative Agent
will promptly notify the Banks of the receipt by it of any L/C
Application or L/C Amendment Application.
(d) The Issuing Bank and the Banks agree that,
while a Letter of Credit is outstanding and prior to the Revolving
Termination Date, at the option of the Company and upon the written
request of the Company received by the Issuing Bank (with a copy sent
by the Company to the Administrative Agent) at least five days (or
such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of
notification of renewal, the Issuing Bank shall be entitled to
authorize the automatic renewal of any Letter of Credit issued by it.
Each such request for renewal of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the form
of an L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as
the Issuing Bank may require. The Issuing Bank shall be under no
44
obligation so to renew any Letter of Credit if: (A) the Issuing Bank
would have no obligation at such time to issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement; or (B)
the beneficiary of any such Letter of Credit does not accept the
proposed renewal of the Letter of Credit. If any outstanding Letter
of Credit shall provide that it shall be automatically renewed unless
the beneficiary thereof receives notice from the Issuing Bank that
such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuing Bank would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with this subsection
3.02(d) upon the request of the Company but the Issuing Bank shall not
have received any L/C Amendment Application from the Company with
respect to such renewal or other written direction by the Company with
respect thereto, the Issuing Bank shall nonetheless be permitted to
allow such Letter of Credit to renew, and the Company and the Banks
hereby authorize such renewal, and, accordingly, the Issuing Bank
shall be deemed to have received an L/C Amendment Application from the
Company requesting such renewal.
(e) The Issuing Bank may, at its election (or
as required by the Administrative Agent at the direction of the
Majority Banks), deliver any notices of termination or other
communications to any Letter of Credit beneficiary or transferee, and
take any other action as necessary or appropriate, at any time and
from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Revolving Termination Date.
(f) This Agreement shall control in the event
of any conflict with any L/C-Related Document (other than any Letter
of Credit).
(g) The Issuing Bank will also deliver to the
Administrative Agent, concurrently or promptly following its delivery
of a Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete copy
of each such Letter of Credit or amendment to or renewal of a Letter
of Credit.
Section 3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter
of Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a
participation in such Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) the Pro Rata Share of such Bank,
times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively. For purposes
of subsection 2.01, each Issuance of a Letter of Credit shall be
deemed to utilize the Commitment of each Bank by an amount equal to
the amount of such participation.
(b) In the event of any request for a drawing
under a Letter of Credit by the beneficiary or transferee thereof, the
Issuing Bank will promptly notify the Company. The Company shall
reimburse the Issuing Bank prior to 11:00 a.m. (Charlotte, North
Carolina time), on each date that any amount is paid by the Issuing
Bank under any Letter of Credit (each such date, an "Honor Date"), in
an amount equal to the amount so paid by the Issuing Bank.
45
In the event the Company fails to reimburse the Issuing Bank for the
full amount of any drawing under any Letter of Credit by 11:00 a.m.
(Charlotte, North Carolina time) on the Honor Date, the Issuing Bank
will promptly notify the Administrative Agent and the Administrative
Agent will promptly notify each Bank thereof, and the Company shall be
deemed to have requested that Base Rate Loans be made by the Banks to
be disbursed on the Honor Date under such Letter of Credit, subject to
the amount of the unutilized portion of the Revolving Commitment and
subject to the conditions set forth in Section 5.02. Any notice given
by the Issuing Bank or the Administrative Agent pursuant to this
subsection 3.03(b) may be oral if immediately confirmed in writing
(including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(c) Each Bank shall upon any notice pursuant to
subsection 3.03(b) make available to the Administrative Agent for the
account of the relevant Issuing Bank an amount in Dollars and in
immediately available funds equal to its Pro Rata Share of the amount
of the drawing, whereupon the participating Banks shall (subject to
subsection 3.03(d)) each be deemed to have made a Revolving Loan
consisting of a Base Rate Loan to the Company in that amount. If any
Bank so notified fails to make available to the Administrative Agent
for the account of the Issuing Bank the amount of such Bank's Pro Rata
Share of the amount of the drawing by no later than 12:00 noon
(Charlotte, North Carolina time) on the Honor Date, then interest
shall accrue on such Bank's obligation to make such payment, from the
Honor Date to the date such Bank makes such payment, at a rate per
annum equal to the Federal Funds Rate in effect from time to time
during such period. The Administrative Agent will promptly give
notice of the occurrence of the Honor Date, but failure of the
Administrative Agent to give any such notice on the Honor Date or in
sufficient time to enable any Bank to effect such payment on such date
shall not relieve such Bank from its obligations under this Section
3.03.
(d) With respect to any unreimbursed drawing
that is not converted into Revolving Loans consisting of Base Rate
Loans to the Company in whole or in part, because of the Company's
failure to satisfy the conditions set forth in Section 5.02 or for any
other reason, the Company shall be deemed to have incurred from the
Issuing Bank an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate
plus four percent (4%) per annum, and each Bank's payment to the
Issuing Bank pursuant to subsection 3.03(c) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Bank in satisfaction of its
participation obligation under this Section 3.03.
(e) Each Bank's obligation in accordance with
this Agreement to make the Revolving Loans or L/C Advances, as
contemplated by this Section 3.03, as a result of a drawing under a
Letter of Credit, shall be absolute and unconditional and without
recourse to the Issuing Bank and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the Issuing
Bank, the Company or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default, an Event of Default or a
Material Adverse Effect; or (iii) any other circumstance, happening or
46
event whatsoever, whether or not similar to any of the foregoing;
provided, however, that each Bank's obligation to make Revolving Loans
under this Section 3.03 is subject to the conditions set forth in
Section 5.02.
Section 3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the
Administrative Agent for the account of the Issuing Bank of
immediately available funds from the Company (i) in reimbursement of
any payment made by the Issuing Bank under the Letter of Credit with
respect to which any Bank has paid the Administrative Agent for the
account of the Issuing Bank for such Bank's participation in the
Letter of Credit pursuant to Section 3.03 or (ii) in payment of
interest thereon, the Administrative Agent will pay to each Bank, in
the same funds as those received by the Administrative Agent for the
account of the Issuing Bank, the amount of such Bank's Pro Rata Share
of such funds, and the Issuing Bank shall receive the amount of the
Pro Rata Share of such funds of any Bank that did not so pay the
Administrative Agent for the account of the Issuing Bank.
(b) If the Administrative Agent or the Issuing
Bank is required at any time to return to the Company, or to a
trustee, receiver, liquidator, custodian, or any official in any
Insolvency Proceeding, any portion of the payments made by the Company
to the Administrative Agent for the account of the Issuing Bank
pursuant to subsection 3.04(a) in reimbursement of a payment made
under the Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Bank the amount of its Pro Rata
Share of any amounts so returned by the Administrative Agent or the
Issuing Bank plus interest thereon from the date such demand is made
to the date such amounts are returned by such Bank to the
Administrative Agent or the Issuing Bank, at a rate per annum equal to
the Federal Funds Rate in effect from time to time.
Section 3.05 Role of the Issuing Bank.
(a) Each Bank and the Company agree that, in
paying any drawing under a Letter of Credit, the Issuing Bank shall
not have any responsibility to obtain any document (other than any
sight draft and certificates expressly required by the 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.
(b) No Documentation Agent-Related Person nor
any of the respective correspondents, participants or assignees of the
Issuing Bank shall be liable to any Bank for: (i) any action taken or
omitted in connection herewith at the request or with the approval of
the Banks (including the Majority Banks, 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 L/C-Related Document.
(c) 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; 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. No Documentation
Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the Issuing Bank, shall be liable or
47
responsible for any of the matters described in clauses (i) through
(vii) of Section 3.06; provided, however, anything in such clauses to
the contrary notwithstanding, that the Company may have a claim
against the Issuing Bank, and the Issuing Bank 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 the Issuing Bank's willful
misconduct or gross negligence or the Issuing Bank's willful failure
to pay under any 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. In furtherance
and not in limitation of the foregoing: (i) the Issuing Bank 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 (ii) the Issuing Bank 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 the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
Section 3.06 Obligations Absolute.
The obligations of the Company under this Agreement and any
L/C-Related Document to reimburse the Issuing Bank for a drawing under
a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other
L/C-Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability
of this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the obligations of the Company in respect of any
Letter of Credit or any other amendment or waiver
of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off,
defense or other right that the Company may have at any time
against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or
other document presented under any 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 any Letter of Credit;
48
(v) any payment by the Issuing Bank under
any Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
any Letter of Credit; or any payment made by the Issuing
Bank under any Letter of Credit 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 any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or
non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any
other guarantee, for all or any of the obligations of
the Company in respect of any Letter of Credit; or
(vii) 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 a guarantor.
Section 3.07 Cash Collateral Pledge.
Upon (i) the request of the Administrative Agent, (A) if the
Issuing Bank has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing
hereunder, or (B) if, as of the Revolving Termination Date, any
Letters of Credit may for any reason remain outstanding and partially
or wholly undrawn, or (ii) the occurrence of the circumstances
described in subsection 2.07(a) requiring the Company to Cash
Collateralize Letters of Credit, then, the Company shall immediately
Cash Collateralize the Obligations in an amount equal to the L/C
Obligations.
Section 3.08 Letter of Credit Fees.
(a) The Company shall pay to the Administrative
Agent for the account of each of the Banks a letter of credit fee with
respect to the Letters of Credit equal to the Applicable Margin for
Offshore Rate Loans applicable as of the date of determination
multiplied by the average daily maximum amount available to be drawn
of the outstanding Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
Letters of Credit outstanding for that quarter as calculated by the
Administrative Agent. Such letter of credit fees shall be due and
payable quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding, commencing on
the first such quarterly date to occur after the Closing Date, through
the Revolving Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire), with the final payment to
be made on the Revolving Termination Date (or such later expiration
date).
(b) The Company shall pay to the Issuing Bank a
letter of credit fronting fee for each Letter of Credit Issued by the
Issuing Bank equal to one quarter of one percent (0.25%) of the face
amount (or increased face amount, as the case may be) of such Letter
of Credit. Such Letter of Credit fronting fee shall be due and
payable on each date of Issuance of a Letter of Credit.
49
(c) The Company shall pay to the Issuing
Bank from time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs and
charges, of the Issuing Bank relating to letters of credit as from
time to time in effect.
Section 3.09 Uniform Customs and Practice.
The Uniform Customs and Practice for Documentary Credits as
published by International Chamber of Commerce most recently at the
time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of
Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 4.01 Taxes.
(a) Any and all payments by the Company to each Bank or
each Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Bank or any Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section), such Bank or such Agent, as the
case may be, receives and retains an amount equal to the sum it
would have received and retained had no such deductions or
withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) the Company shall also pay to each Bank or the
Administrative Agent for the account of such Bank, at the time
interest is paid, Further Taxes in the amount that the respective
Bank specifies as necessary to preserve the after-tax yield the
Bank would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Bank and each Agent for the full amount of (i) Taxes, (ii) Other
Taxes, and (iii) Further Taxes in the amount that the respective Bank
specifies as necessary to preserve the after-tax yield the Bank would
have received if such Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted. Payment under this indemnification shall be made
within thirty (30) days after the date the Bank or the Agent makes
written demand therefor.
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(d) Within thirty (30) days after the date of any payment
by the Company of Taxes, Other Taxes or Further Taxes, the Company
shall furnish to the applicable Bank or Agent the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Bank or such Agent.
(e) If the Company is required to pay any amount to any
Bank or any Agent pursuant to subsection (b) or (c) of this Section,
then such Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending
Office so as to eliminate any such additional payment by the Company
which may thereafter accrue, if such change in the sole judgment of
such Bank is not otherwise disadvantageous to such Bank.
(f) Nothing contained in this Section 3.01 shall override
any term or provision of any Specified Swap Contract regarding
withholding taxes relating to Swap Contracts.
Section 4.02 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made
it unlawful, or that any central bank or other Governmental Authority
has asserted that it is unlawful, for any Bank or its applicable
Lending Office to make Offshore Rate Loans, then, on notice thereof by
the Bank to the Company through the Administrative Agent, any
obligation of that Bank to make Offshore Rate Loans shall be suspended
until the Bank notifies the Administrative Agent and the Company that
the circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice
of such fact and demand from such Bank (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Loans of that
Bank then outstanding, together with interest accrued thereon and
amounts required under Section 4.04, either on the last day of the
Interest Period thereof, if the Bank may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Offshore Rate Loan. If the
Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company shall borrow from the
affected Bank, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company
may elect, by giving notice to the Bank through the Administrative
Agent that all Loans which would otherwise be made by the Bank as
Offshore Rate Loans shall be instead Base Rate Loans.
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(d) Before giving any notice to the Administrative Agent
under this Section, the affected Bank shall designate a different
Lending Office with respect to its Offshore Rate Loans if such
designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of the Bank, be illegal or
otherwise disadvantageous to the Bank.
Section 4.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate or in respect of the assessment rate
payable by any Bank to the FDIC for insuring U.S. deposits) in or in
the interpretation of any law or regulation or (ii) the compliance by
that Bank with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans or
participating in Letters of Credit, or, in the case of the Issuing
Bank, any increase in the cost to the Issuing Bank of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to
make or making, funding or maintaining any unpaid drawing under any
Letter of Credit, then the Company shall be liable for, and shall from
time to time, within ten (10) days after demand (with a copy of such
demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the
Bank (or its Lending Office) or any corporation controlling the Bank
with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or
any corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to capital
adequacy and such Bank's desired return on capital) determines that
the amount of such capital is increased as a consequence of its
Commitment, loans, credits or obligations under this Agreement, then,
upon demand of such Bank to the Company through the Administrative
Agent, the Company shall pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the
Bank for such increase.
Section 4.04 Funding Losses.
The Company shall reimburse each Bank and hold each Bank harmless
from any loss or expense which the Bank may sustain or incur as a
consequence of:
52
(a) the failure of the Company to make on a timely basis
any payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion / Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or
other payment (including after acceleration thereof) of an Offshore
Rate Loan on a day that is not the last day of the relevant Interest
Period; or
(e) the automatic conversion under Section 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last
day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Loans or from fees payable to terminate the deposits from which such
funds were obtained. For purposes of calculating amounts payable by
the Company to the Banks under this Section and under
subsection 4.03(a), each Offshore Rate Loan made by a Bank (and each
related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in
determining the Offshore Rate for such Offshore Rate Loan by a
matching deposit or other borrowing in the interbank eurodollar market
for a comparable amount and for a comparable period, whether or not
such Offshore Rate Loan is in fact so funded.
Section 4.05 Inability to Determine Rates.
If the Reference Bank determines that for any reason adequate and
reasonable means do not exist for determining the Offshore Rate for
any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to
subsection 2.08(a) for any requested Interest Period with respect to a
proposed Offshore Rate Loan does not adequately and fairly reflect the
cost to the Banks of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans, as
the case may be, hereunder shall be suspended until the Administrative
Agent upon the instruction of the Majority Banks revokes such notice
in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion / Continuation then
submitted by it. If the Company does not revoke such Notice, the
Banks shall make, convert or continue the Loans, as proposed by the
Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as
Base Rate Loans instead of Offshore Rate Loans.
Section 4.06 Certificates of Banks.
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Any Bank claiming reimbursement or compensation under this
Article IV shall deliver to the Company (with a copy to the
Administrative Agent) a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest
error.
Section 4.07 Substitution of Banks.
Upon receipt by the Company from any Bank (an "Affected Bank") of
a claim for compensation under Section 4.03, the Company may: (i)
request the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution satisfactory to the Company
and to the Administrative Agent (a "Replacement Bank") to acquire and
assume all or a ratable part of all or such Affected Bank's Loans and
Commitment, and if such Affected Bank or any Affiliate thereof is a
Swap Provider, all Specified Swap Contracts of such Affected Bank and
Affiliate; (ii) request one or more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment; or
(iii) designate a Replacement Bank. Any such designation of a
Replacement Bank under clause (i) or (iii) shall be subject to the
prior written consent of the Administrative Agent (which consent shall
not be unreasonably withheld. Notwithstanding anything herein to the
contrary, the Company shall not have the right to remove the Bank that
is the Issuing Bank or the Swingline Bank at such time unless such
Issuing Bank shall also simultaneously be replaced as "Issuing Bank"
or "Swingline Bank" hereunder (as the case may be) pursuant to
documentation in form and substance reasonably satisfactory to such
Issuing Bank or Swingline Bank.
Section 4.08 Survival.
The agreements and obligations of the Company in this Article IV
shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01 Conditions of Closing Loans
The obligation of each Bank to execute and deliver the Loan
Documents is subject to the condition that the Documentation Agent
shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agents and each
Bank, and in sufficient copies for each Bank:
(a) Credit Agreement, Notes and Fee Letters. This
Agreement, the Notes and the Fee Letters executed by each party
thereto;
(b) Resolutions; Incumbency.
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(i) Copies of the resolutions of the board of
directors of the Company and each Restricted Subsidiary
authorizing the transactions contemplated hereby, certified
as of the Closing Date by the Secretary or an Assistant
Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company, and each Restricted Subsidiary
certifying the names and true signatures of the officers of
the Company or such Restricted Subsidiary authorized to
execute, deliver and perform, as applicable, this Agreement,
and all other Loan Documents to be delivered by it
hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation and
the bylaws of the Company and each Restricted Subsidiary as
in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company or such Restricted
Subsidiary as of the Closing Date; and
(ii) a good standing certificate for the Company and
each Restricted Subsidiary from the Secretary of State (or
similar, applicable Governmental Authority) of its state of
incorporation and each state where the Company or such
Restricted Subsidiary is required to be qualified to do
business as a foreign corporation as of a recent date
(except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect),
certified by the Secretary or Assistant Secretary of the
Company or such Restricted Subsidiary as of the Closing
Date;
(d) Legal Opinions. An opinion of Xxxxxxxxxx Xxxxxxxx LLP,
counsel to the Company and addressed to the Agents and the Banks, in
form and substance satisfactory to the Agents;
(e) 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 by the Company to the Banks or any Agent on the Closing
Date, together with Attorney Costs of the Agents to the extent
invoiced prior to or on the Closing Date, plus such additional amounts
of Attorney Costs as shall constitute the Agents' reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude
final settling of accounts between the Company and the Agents);
including any such costs, fees and expenses arising under or
referenced in Sections 2.09 and 11.04;
(f) Collateral Documents. The Collateral Documents (other
than the Credit Card Agreements to be provided under Section 7.14 (a)
hereof), executed by the Company, in appropriate form for recording,
where necessary, together with:
(i) original UCC-l financing statements to be filed,
registered or recorded to perfect the security interests of
the Administrative Agent for the benefit of itself, the
Banks and the Documentation Agent, together with such other
55
documents or instruments necessary and advisable to perfect
the Liens of the Administrative Agent for the benefit of
itself, the Banks and the Documentation Agent in accordance
with applicable law;
(ii) all certificates and instruments representing the
Pledged Collateral, stock transfer powers executed in blank
with signatures guaranteed as the Agents or the Banks may
specify, except for NW Acquisition Corp., Frame-n-Lens,
Family Vision Centers, Inc., and Vision Administrators,
Inc., which shall be provided under Section 5.02 hereof;
(iii) evidence that the Administrative Agent has
been named as loss payee under all policies of casualty
insurance, and as additional insured under all policies of
liability insurance;
(g) Senior Notes. Receipt of documentation satisfactory to
the Agents evidencing the closing of the Senior Notes offering and
receipt by the Company of gross proceeds (after deduction of original
issue discount) therefrom in an amount not less than $123,000,000;
(h) Projections. Receipt of projections for the Company
and its Restricted Subsidiaries on a consolidated and consolidating
basis for each of the twelve (12) months immediately following the
Closing Date, demonstrating pro-forma compliance with the financial
covenants set forth in Sections 8.14, in form and substance
satisfactory to the Agents;
(i) Representations and Warranties. The representations and
warranties shall be true and correct on the Closing Date.
(j) Other Documents. Such other approvals, opinions,
documents or materials as the Agents or any Bank may reasonably
request.
Section 5.02 Conditions to Initial Loans.
In addition to the conditions precedent set forth in
Section 5.01, the obligation of each Bank to make the initial Loan
hereunder is subject to the following conditions:
(a) the Closing Date shall have occurred;
(b) the Documentation Agent shall have received on or before the
date of the initial Borrowing of the following in form and substance
satisfactory to the Agents and the each Bank, and in sufficient copies
for each Bank:
(i) a certificate of a senior officer of the Company
certifying that the Company has purchased at least
fifty-one (51) percent of the outstanding Common Stock
of New West as contemplated by the New West Purchase
Agreement;
(ii) such Collateral Documents as are required by Section
7.17 upon the consummation of the New West Purchase
Agreement;
56
(iii) a pay off letter from Wachovia Bank, N.A. as agent
in form and substance satisfactory to the Agents,
together with evidence satisfactory to the Agents that
such Indebtedness has been paid;
(iv) a flow of funds statement executed by the Company
evidencing the flow of funds with respect to the Senior
Notes and the initial Borrowings;
(v) an opinion, if any, of New West's counsel delivered to
the Company in connection with the acquisition
contemplated by the New West Purchase Agreement,
together with a reliance letter in favor of the Agents
and the Banks, in form and substance satisfactory to
the Agents;
(vi) The Banks shall have received opinions of counsel to
the Company or other evidence reasonably acceptable to
the Banks that, upon completion of the Tender Offer and
acquisition by the Company of shares of New West
representing at least fifty-one (51%) of the
outstanding shares of Common Stock of New West, the
Company shall have full power and authority to (i)
cause New West, immediately upon completion of the
Tender Offer, to execute, deliver, and perform the
Subsidiary Guaranty; (ii) cause New West, immediately
after completion of the Tender Offer, to grant to, or
for the benefit of, the Lenders, a first-priority
(subject to Permitted Liens), perfected security
interest in the assets of New West to secure New West's
obligations under the Subsidiary Guaranty; and (iii)
complete the Company's acquisition, for cash, of the
remaining outstanding shares of Common Stock of New
West in accordance with the New West Purchase
Documents;
(vii) written lien search results and judgment searches
as the Agents shall have requested, and such
termination statements or other documents as may be
necessary to confirm that the Collateral is subject to
no other Liens in favor of any Persons (other than
Permitted Liens);
(viii) evidence that all other actions necessary or, in
the opinion of the Agents or the Banks, desirable to
perfect and protect the first priority security
interest created by the Collateral Documents have been
taken;
(ix) funds sufficient to pay any filing or recording tax or
fee in connection with any and all UCC-1 financing
statements;
(x) Landlord Consents with respect to all retail stores of
the Company and its Restricted Subsidiaries located at
stores operated by (x) Wal-Mart Stores, Inc. (y) Sam's
Wholesale Club and (z) Xxxx Xxxxx, Inc.;
(xi) evidence that all other actions necessary or, in the
opinion of the Agents or the Banks, desirable to
perfect and protect the first priority Lien created by
the Collateral Documents, and to enhance the
57
Administrative Agent's ability to preserve and protect
its interests in and access to the Collateral, have
been taken;
(xii) standard lenders' payable endorsements with
respect to the insurance policies or other instruments
or documents evidencing insurance coverage on the
properties of the Company in accordance with
Section 7.06;
(xiii) a certificate signed by a Responsible Officer,
dated as of the date of the initial Loan hereunder,
stating that:
(A) the representations and warranties contained in
Article VI are true and correct on and as of such date, as
though made on and as of such date;
(B) no Default or Event of Default exists or would
result from the initial Borrowing; and
(C) there has occurred since December 31, 1997, no
event or circumstance that has resulted or could reasonably
be expected to result in a Material Adverse Effect;
(xiv) receipt of an executed copy of the New West
Purchase Agreement, together with all exhibits and
schedules thereto and an executed copy of each of the
other New West Purchase Documents;
(xv) receipt of the Company's consolidated and consolidating
financial statements for the months ended July 31, 1998
and August 31, 1998, together with a Borrowing Base
Certificate dated as of the Closing Date;
(xvi) receipt of Account Designation Letter;
(xvii) opinions of counsel for the Company acceptable to
the Banks for the States of Arizona, Texas, Oregon,
Washington, North Carolina, California and Minnesota,
in form and substance reasonably satisfactory to the
Agents; and
(xviii) all certificates and instruments representing the
Pledged Collateral for NW Acquisition Corp., Frame-n-
Lens, Family Vision Centers, Inc., and Vision
Administrators, Inc., stock transfer powers executed in
blank with signatures guaranteed as the agents or the
Banks may specify; and
(xix) such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably
request.
Section 5.03 Conditions to All Borrowings.
The obligation of each Bank to make any Loan to be made by it
(including its initial Loan) or to continue or convert any Loan under
Section 2.04 and the obligation of the Issuing Bank to Issue any
Letter of Credit (including the initial Letter of Credit) is subject
to the satisfaction of the following conditions precedent on the
relevant Borrowing Date, Conversion / Continuation Date or Issuance
Date:
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(a) Notice of Borrowing or Conversion / Continuation. The
Administrative Agent shall have received (with, in the case of the
initial Loan only, a copy for each Bank) a Notice of Borrowing or a
Notice of Conversion / Continuation, as applicable, or in the case of
any Issuance of any Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received an L/C Application or L/C
Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct
on and as of such Borrowing Date, Conversion / Continuation Date or
Issuance Date with the same effect as if made on and as of such
Borrowing Date, or Conversion / Continuation Date or Issuance Date
(except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct
as of such earlier date);
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Borrowing, or continuation or
conversion or Issuance; and
(d) No Future Advance Notice. Neither any Agent nor any
Bank shall have received from the Company any notice that any
Collateral Document will no longer secure on a first priority basis
(subject to Permitted Liens, if any, that are not subordinated to the
Liens of the Administrative Agent under the Collateral Documents)
future advances or future Loans to be made or extended under this
Agreement.
Each Notice of Borrowing, Notice of Conversion / Continuation and L/C
Application or LC Amendment Application submitted by the Company
hereunder shall constitute a representation and warranty by the
Company hereunder, as of the date of each such notice and as of each
Borrowing Date, Conversion / Continuation Date, or Issuance Date, as
applicable, that the conditions in this Section 5.03 are satisfied.
Section 5.04 Conditions Subsequent.
As a condition subsequent to the initial closing hereunder, the
Company shall perform or cause to be performed the following (failure
by the Company to so perform or cause to be performed constituting an
Event of Default):
(a) On or before the date sixty (60) days following the
Closing Date, deliver to the Documentation Agent:
(i) a duly executed Mortgage in form and substance
satisfactory to the Agents granting a Lien on the
real estate owned by New West;
(ii) with respect to such Mortgaged Property, an
A.L.T.A. Form B (or other form acceptable to the
Agents and the Banks mortgagee policy of title
insurance or a binder issued by a title insurance
company satisfactory to the Agents and the Banks
insuring (or undertaking to insure, in the case of
a binder) that the Mortgage creates and
constitutes a valid first Lien against the
Mortgaged Property in favor of the Administrative
Agent, subject only to exceptions acceptable to
the Agents and the Banks, with such endorsements
and affirmative insurance as the Agents or any
Bank may reasonably request;
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(iii) copies of any ALTA surveys and surveyor's
certification as made available to the Company by
New West;
(iv) proof of payment of all title insurance premiums,
documentary stamp or intangible taxes, recording
fees and mortgage taxes payable in connection with
the recording of any Mortgage or the issuance of
the title insurance policies (whether due on the
Closing Date or in the future) including sums due
in connection with any future advances; and
(v) A copy of the environmental site assessment
obtained by the Company from National Assessment
Corporation with respect to the real property
acquired from New West as to which the
Administrative Agent is granted a Lien for the
benefit of the Banks, dated as of a recent date
prior to the date of execution and delivery of the
Mortgage referred to in subsection (i) above,
together with a letter addressed to the
Administrative Agent by National Assessment
Corporation authorizing the Administrative Agent
on behalf of the Banks to rely thereon as if such
report had been addressed to the Administrative
Agent.
(b) On or before the date sixty (60) days following the
Closing Date, deliver to the Administrative Agent (i) Landlord
Consents with respect to at least sixty percent (60%) of all retail
stores of the Company and its Restricted Subsidiaries (including such
Landlord Consents as had been obtained prior to the date of the
initial Borrowing hereunder), and (ii) with respect to other locations
on which Collateral is located, such other consents, estoppels,
subordination agreements and other documents and instruments executed
by landlords, tenants and other Persons party to material contracts
relating to any Collateral as to which the Administrative Agent shall
be granted a Lien for the benefit of the Banks, as requested by the
Agents or any Bank.
(c) The Company shall diligently pursue consummation of the
merger of NW Acquisition Corp. into New West pursuant to the New West
Purchase Agreement (i) in the event that the Tender Offer succeeds in
receiving at least ninety percent (90%) of the outstanding shares of
common stock of New West, then such merger shall be consummated on or
before the third Business Day after the funding of the initial
Borrowing and (ii) in the event that the Tender Offer succeeds in
receiving at least fifty-one percent (51%) but not ninety percent
(90%) or more of the outstanding shares of common stock of New West,
then such merger shall be consummated as soon as reasonably
practicable after the date of the initial Borrowing but in no event
later than forty-five (45) days after the date on which the Company
receives clearance from the SEC with respect to its proxy materials
for the meeting of New West stockholders at which such merger will be
considered.
60
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Bank
that:
Section 6.01 Corporate Existence and Power.
The Company and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets,
carry on its business and, as applicable, to execute, deliver, and
perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of
its business requires such qualification or license and where the
failure to be so qualified or licensed could reasonably be expected to
have a Material Adverse Effect; and
(d) is in compliance in all material respects with all
Requirements of Law;
Section 6.02 Corporate Authorization; No Contravention.
The execution, delivery and performance by the Company and its
Restricted Subsidiaries of this Agreement and each other Loan Document
to which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's
Organization Documents;
(b) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document evidencing any
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such
Person or its property is subject; or
61
(c) violate any Requirement of Law.
Section 6.03 Governmental Authorization.
No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority (except
for recordings or filings in connection with the Liens granted to the
Administrative Agent under the Collateral Documents) is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against, the Company or any of its Restricted
Subsidiaries of the Agreement or any other Loan Document.
Section 6.04 Binding Effect.
This Agreement and each other Loan Document to which the Company
or any of its Restricted Subsidiaries is a party constitute the legal,
valid and binding obligations of the Company and any of its Restricted
Subsidiaries to the extent it is a party thereto, enforceable against
such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability.
Section 6.05 Litigation.
Except as specifically disclosed in Schedule 6.05, there are no
actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against
the Company, or its Subsidiaries or any of their respective
properties. None of the items disclosed on Schedule 6.05:
(a) purport to affect this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby;
or
(b) if determined adversely to the Company or its
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect.
No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing
that the transactions provided for herein or therein not be
consummated as herein or therein provided.
Section 6.06 No Default.
No Default or Event of Default exists or would result from the
incurring of any Obligations by the Company or from the grant or
perfection of the Liens of the Administrative Agent and the Banks on
the Collateral. As of the Closing Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse
Effect, or that would, if such default had occurred after the Closing
Date, create an Event of Default under subsection 9.01(e).
62
Section 6.07 ERISA Compliance.
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of the Company, nothing
has occurred which would cause the loss of such qualification. The
Company and each ERISA Affiliate has made all required contributions
to any Plan subject to Section 412 of the Code, and no application for
a funding waiver or an extension of any amortization period pursuant
to Section 412 of the Code has been made with respect to any Plan;
(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect;
and
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability; (iii) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither the Company
nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Company nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA, which in the case of any occurrence described in any of clauses
(i) through (v) above has resulted in or could reasonably be expected
to result in a liability of the Company and its Subsidiaries in excess
of $500,000.
Section 6.08 Use of Proceeds; Margin Regulations.
The proceeds of the Loans are to be used solely for the purposes
set forth in and permitted by Section 7.12 and Section 8.07. Neither
the Company nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose
of purchasing or carrying Margin Stock.
Section 6.09 Title to Properties.
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The Company and each Subsidiary have good record and marketable
title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As
of the Closing Date, the property of the Company and its Restricted
Subsidiaries is subject to no Liens, other than Permitted Liens.
Section 6.10 Taxes.
The Company and its Subsidiaries have filed all Federal and other
material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. There is
no proposed tax assessment against the Company or any Subsidiary that
would, if made, have a Material Adverse Effect.
Section 6.11 Financial Condition.
(a) The audited consolidated financial statements of the
Company and its Subsidiaries dated January 3, 1998, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal year ended on that date, and the
unaudited consolidated financial statements of the Company and its
Subsidiaries dated July 4, 1998, and the related consolidated
statements of income or operations, shareholder's equity and cash
flows for the fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein, and, in the case of the
quarterly statements dated July 4, 1998, subject to ordinary,
good faith year end audit adjustments;
(ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and results
of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities,
direct or contingent, of the Company and its consolidated
Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Contingent Obligations.
(b) Since January 3, 1998 there has been no Material
Adverse Effect.
(c) The Company's and its Subsidiaries' fiscal year end is
a 52/53 week retail calendar year ending on the Saturday closest to
December 31st (except that certain of the Managed Care Subsidiaries
and the Foreign Subsidiaries may have a calendar year end).
Section 6.12 Environmental Matters.
(a) Except as specifically disclosed in Schedule 6.12, the
on-going operations of the Company and each of its Subsidiaries comply
in all respects with all Environmental Laws, except such non-
compliance which would not (if enforced in accordance with applicable
law) result in liability in excess of $500,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 6.12, the
Company and each of its Subsidiaries have obtained all material
licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary for their
respective ordinary course operations, all such Environmental Permits
are in good standing, and the Company and each of its Subsidiaries are
in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in Schedule 6.12, none
of the Company, any of its Subsidiaries or any of their respective
present property or operations, is subject to any outstanding written
order from or agreement with any Governmental Authority, nor subject
to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material, which
would reasonably be expected to give rise to Environmental Claims with
potential liability of the Company and its Subsidiaries in excess of
$500,000 in the aggregate.
(d) Except as specifically disclosed in Schedule 6.12,
there are no Hazardous Materials or other conditions or circumstances
existing with respect to any property of the Company or any
Subsidiary, or arising from operations prior to the Closing Date, of
the Company or any of its Subsidiaries that would reasonably be
expected to give rise to Environmental Claims with a potential
liability of the Company and its Subsidiaries in excess of $500,000 in
the aggregate for any such condition, circumstance or property. In
addition, (i) neither the Company nor any Subsidiary has any
underground storage tanks (x) that are not properly registered or
permitted under applicable Environmental Laws, or (y) that are leaking
or disposing of Hazardous Materials off-site, and which in the case of
any occurrence described in clause (x) or (y) could reasonably be
expected to give rise to Environment Claims with potential liability
of the Company and its Subsidiaries in excess of $500,000 in the
aggregate, and (ii) the Company and its Subsidiaries have notified all
of their employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have met all
notification requirements under Title III of CERCLA and all other
Environmental Laws.
Section 6.13 Collateral Documents.
(a) The provisions of each of the Collateral Documents are
effective to create in favor of the Administrative Agent for the
benefit of the Banks, a legal, valid and enforceable first priority
security interest in all right, title and interest of the Company and
its Subsidiaries in the collateral described therein, subject to
Permitted Liens, if any, which are not subordinated to the Liens under
the Collateral Documents; and financing statements have been filed in
the offices in all of the jurisdictions listed in the schedule to the
Security Agreement and the Subsidiary Security Agreement. Each of the
applicable patent security agreements, trademark security agreements
and copyright security agreements attached to the Security Agreement
and the Subsidiary Security Agreement as Exhibits has been filed in
the U.S. Patent and Trademark Office and the U.S. Copyright Office.
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(b) Each Mortgage when delivered will be effective to grant
to the Administrative Agent for the benefit of the Banks a legal,
valid and enforceable deed of trust or mortgage lien, as the case may
be, on all the right, title and interest of the mortgagor under such
Mortgage in the mortgaged property described therein. When each such
Mortgage is duly recorded in the offices listed on the schedule to
such Mortgage and the mortgage recording fees and taxes in respect
thereof are paid and compliance is otherwise had with the formal
requirements of state law applicable to the recording of real estate
mortgages generally, each such mortgaged property, subject to the
encumbrances and exceptions to title set forth therein and other
Permitted Liens, if any, which are not subordinated to the Liens under
the Collateral Documents and except as noted in the title policies
delivered to the Administrative Agent pursuant to Section 5.01, is
subject to a legal, valid, enforceable and perfected first priority
deed of trust; and when financing statements have been filed in the
offices specified in such Mortgage, such Mortgage also creates a
legal, valid, enforceable and perfected first lien on, and security
interest in, all right, title and interest of the Company or such
Restricted Subsidiary under such Mortgage in all personal property and
fixtures which is covered by such Mortgage, subject to no other Liens,
except the encumbrances and exceptions to title set forth therein and
other Permitted Liens, if any, which are not subordinated to the Liens
under the Collateral Documents and except as noted in the title
policies delivered to the Administrative Agent pursuant to
Section 5.01, and Permitted Liens.
(c) All representations and warranties of the Company and
any of its Restricted Subsidiaries party thereto contained in the
Collateral Documents are true and correct.
Section 6.14 Regulated Entities.
None of the Company, any Person controlling the Company, or any
Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
Section 6.15 No Burdensome Restrictions.
Neither the Company nor any Subsidiary is a party to or bound by
any Contractual Obligation, or subject to any restriction in any
Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
66
Section 6.16 Copyrights, Patents, Trademarks and Licenses, Etc.
The Company or its Subsidiaries own or are licensed or otherwise
have the right to use all of the material patents, trademarks, service
marks, trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of any
other Person. To the best knowledge of the Company, no slogan or
other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by
the Company or any Subsidiary infringes upon any rights held by any
other Person which could reasonably be expected to result in a claim
by any other Person in excess of $500,000. Except as specifically
disclosed in Schedule 6.05, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the Company,
proposed, which, in either case, could reasonably be expected to have
a Material Adverse Effect.
Section 6.17 Subsidiaries.
The Company has no Subsidiaries other than those specifically
disclosed in part (a) of Schedule 6.17 hereto (which Schedule
designates whether each Subsidiary is a Restricted Subsidiary or an
Unrestricted Subsidiary as of the Closing Date) and has no equity
investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.17. The Dormant
Subsidiaries have no material assets or operations.
Section 6.18 Insurance.
Except as specifically disclosed in Schedule 6.18, the properties
of the Company and its Subsidiaries are insured with financially sound
and reputable insurance companies not Affiliates of the Company, 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 the Company or such
Subsidiary operates.
Section 6.19 Solvency.
The Company and each of its Subsidiaries are Solvent.
Section 6.20 Swap Obligations.
(a) Neither the Company nor any of its Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other
than Permitted Swap Obligations. The Company has undertaken its own
independent assessment of its consolidated assets, liabilities and
commitments and has considered appropriate means of mitigating and
managing risks associated with such matters and has not relied on any
Swap Provider or any Affiliate of any Swap Provider in determining
whether to enter into any Swap Contract.
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(b) Neither the Company nor any of its Subsidiaries has
entered into any master agreement relating to Swap Contracts and under
which termination values resulting from Swap contracts that are
Specified Swap Contracts are nettable against termination values
resulting from Swap Contracts that are not Specified Swap Contracts,
unless only Specified Swap Contracts are outstanding under such master
agreement.
Section 6.21 Full Disclosure.
None of the representations or warranties made by the Company or
any Restricted Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, report, statement or
certificate furnished by or on behalf of the Company or any Restricted
Subsidiary in connection with the Loan Documents (including the
offering and disclosure materials delivered by or on behalf of the
Company to the Banks prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading
as of the time when made or delivered.
Section 6.22 Accounts and Inventory.
(a) (i) All of the Company's and each Restricted Subsidiary's
Accounts which are identified or included on any Schedule, Borrowing
Base Certificate or other report as Eligible Accounts are and will
continue to be bona fide existing obligations created by the sale of
goods, the rendering of services, or the furnishing of other good and
sufficient consideration to its Account Debtors in the regular course
of business; (ii) all shipping and delivery receipts and other
documents furnished or to be furnished to the Administrative Agent in
connection therewith are and will be genuine; and (iii) none of the
Accounts identified or included on any schedule, Borrowing Base
Certificate or report as Eligible Accounts will, to the Company's
knowledge, fail at the time so identified or included to satisfy any
of the requirements for eligibility set forth in the definition of
Eligible Accounts.
(b) As to each schedule of Inventory delivered to the
Administrative Agent or any Bank, to the Company's knowledge:
(1) the descriptions, origins, sizes, qualities,
quantities, weights, and markings of all goods stated thereon, or
on any attachment thereto, are true and correct in all material
respects; and
(2) none of the goods are defective, of second quality,
used, or goods returned after shipment, except where described as
such.
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Section 6.23 Leases.
(a) Each of the supplements to the master lease between Wal-
Mart Stores, Inc. and the Company with respect to retail locations of
the Company or any Subsidiary of the Company located in a Wal-Mart
retail store is substantially in the form of Exhibit N;
(b) Each of the leases between Wal-Mart Stores, Inc. and the
Company with respect to retail locations of the Company or any
Subsidiary of the Company located in a Sam's Wholesale Club retail
store is substantially in the form of Exhibit O; and
(c) Each of the leases between Xxxx Xxxxx, Inc. and the Company
is substantially in the form of Exhibit P; and
Section 6.24 Compliance With Laws.
Each of the Company and its Subsidiaries has timely filed all
material reports, documents and other materials required to be filed
by it under all applicable Requirements of Law with any Governmental
Authority, has retained all material records and documents required to
be retained by it under all applicable Requirements of Law, and is
otherwise in compliance with all applicable Requirements of Law in
respect of the conduct of its business and the ownership and operation
of its properties, except for such Requirements of Law the failure to
comply with which, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
Section 6.25 Year 2000 Compatibility.
Any reprogramming by or on behalf of the Company or any of its
Subsidiaries, required to permit the proper functioning, before, on
and after January 1, 2000, of the Company's and its Subsidiaries' (i)
computer-based systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with
which the Company's or any of its Subsidiaries' systems interface),
and the testing of all such systems and equipment, as so reprogrammed,
will be completed by June 30, 1999. The cost to the Company and its
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of the year 2000 to the Company and its
Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a
Default or Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the
Company and its Subsidiaries are and, with ordinary course upgrading
and maintenance will continue for the term of this Agreement to be,
sufficient to permit the Company and its Subsidiaries to conduct their
respective businesses without a Material Adverse Effect.
69
Section 6.26 Material Contracts.
Schedule 6.26 lists, as of the Closing Date, each "material
contract" (within the meaning of Item 601(b)(10) of Regulation S-K
under the Exchange Act) to which the Company or any of its
Subsidiaries is a party, by which any of them or their respective
properties is bound or to which any of them is subject (collectively,
"Material Contracts"). As of the Closing Date, (i) each Material
Contract is in full force and effect and is enforceable in all
material respects by the Company or the Subsidiary that is a party
thereto in accordance with its terms, and (ii) neither the Company nor
any of its Subsidiaries (nor, to the knowledge of the Company, any
other party thereto) is in breach of or default under any Material
Contract in any material respect or has given notice of termination or
cancellation of any Material Contract.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
Section 7.01 Financial Statements.
The Company shall deliver to the Administrative Agent, in form
and detail satisfactory to the Agents and the Majority Banks, with
sufficient copies for each Bank:
(a) as soon as available, but not later than ninety (90)
days after the end of each fiscal year, a copy of the audited
consolidated and unaudited consolidating balance sheet of the Company
and its Subsidiaries as at the end of such year and the related
audited consolidated and unaudited consolidating statements of income
or operations, shareholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of a nationally-
recognized independent public accounting firm ("Independent Auditor")
which report shall state that such consolidated and consolidating
financial statements present fairly the financial position for the
periods indicated in conformity with GAAP applied on a basis
consistent with prior fiscal years. Such opinion shall not be
qualified or limited because of a restricted or limited examination by
the Independent Auditor of any material portion of the Company's or
any Subsidiary's records and shall be delivered to the Administrative
Agent;
(b) as soon as available, but not later than forty-five
(45) days after the end of each of the first three fiscal quarters of
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each fiscal year (commencing with the fiscal quarter ended closest to
September 30, 1998, a copy of the unaudited consolidated and
consolidating balance sheet of the Company and its Subsidiaries (and
separate balance sheet for each Unrestricted Subsidiary), as of the
end of such quarter and the related unaudited consolidated and
consolidating statements of income, shareholders' equity and cash
flows for the period commencing on the first day and ending on the
last day of such quarter, and certified by a Responsible Officer as
fairly presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and the
results of operations of each of the Company and each of its
Subsidiaries (and separate statements for each Unrestricted
Subsidiary);
(c) as soon as available, but not later than thirty (30)
days after the end of each month (commencing with the month ended
September 30, 1998), a copy of the unaudited consolidated and
consolidating balance sheets of the Company and its Subsidiaries and
the related consolidating statements of income, shareholders' equity
and cash flows for such month, all certified by a Responsible Officer
as fairly presenting, in accordance with GAAP (subject to ordinary,
good faith year-end audit adjustments), the financial position and the
results of operations of each of the Company and each of its
Subsidiaries.
Section 7.02 Certificates; Other Information.
The Company shall furnish to the Administrative Agent, with
sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.01(a), a certificate of the
Independent Auditor stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default
under Section 8.14, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), a Compliance
Certificate executed by a Responsible Officer;
(c) concurrently with the delivery of the financial
statements referred to in subsections 7.01(b), a certificate executed
by a Responsible Officer setting forth dividends and other
distributions from Unrestricted Subsidiaries to the Company or any
Restricted Subsidiary for the immediately preceding fiscal quarter;
(d) a monthly budget for each upcoming fiscal year on or
before the date thirty (30) days prior to the first day of such
upcoming fiscal year;
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(e) promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and copies of all
financial statements and regular, periodical or special reports
(including Forms 10K, 10Q and 8K) that the Company or any Subsidiary
may make to, or file with, the SEC;
(f) promptly upon receipt, a copy of any "management
letter" received by it that has been prepared by its internal or
outside accountants;
(g) within thirty (30) days after the end of each month,
and at such other times as the Administrative Agent, or any Bank
requesting through the Administrative Agent, may request, a Borrowing
Base Certificate, executed and certified as accurate by a Responsible
Officer;
(h) within thirty (30) days after the end of each month, an
aging of all Accounts of the Company and each Restricted Subsidiary as
of the end of such month, in form and content acceptable to the
Administrative Agent;
(i) within thirty (30) days after the end of each month, a
certification report with respect to the Inventory of the Company and
each Restricted Subsidiary as of the end of the month for all
locations thereof, in form and content acceptable to the
Administrative Agent;
(j) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Administrative Agent, at the request of any Bank,
may from time to time reasonably request;
Section 7.03 Notices.
The Company shall promptly notify the Agents and each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default
under, any Contractual Obligation of the Company or any of its
Subsidiaries which could reasonably be expected to result in a
Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority which could reasonably be expected to result in a Material
Adverse Effect;
(c) of the commencement of, or any material development in,
any litigation or proceeding affecting the Company or any Subsidiary
(i) in which the amount of damages claimed is $500,000 (or its
equivalent in another currency or currencies) or more, (ii) in which
injunctive or similar relief is sought and which, if adversely
determined, would reasonably be expected to have a Material Adverse
Effect, or (iii) in which the relief sought is an injunction or other
stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than ten (10) days after,
becoming aware of (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted, completed or
threatened against the Company or any Subsidiary or any of their
respective properties pursuant to any applicable Environmental Laws,
(ii) all other Environmental Claims, and (iii) any environmental or
similar condition on any real property adjoining or in the vicinity of
72
the property of the Company or any Subsidiary that could reasonably be
anticipated to cause such property or any part thereof to be subject
to any restrictions on the ownership, occupancy, transferability or
use of such property under any Environmental Laws, and which in the
case of any event described in clause (i), (ii) or (iii) above has
resulted or could reasonably be expected to result in liability of the
Company and its Subsidiaries in excess of $500,000 in the aggregate;
(e) of any other litigation or proceeding affecting the
Company or any of its Subsidiaries which the Company would be required
to report to the SEC pursuant to the Exchange Act, within four (4)
days after reporting the same to the SEC;
(f) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate which has resulted or
could reasonably be expected to result in liability of the Company and
its Subsidiaries in excess of $500,000 in the aggregate (but in no
event more than ten (10) days after such event), and deliver to the
Agents and each Bank a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company or any ERISA Affiliate with
respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by
the Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability.
(g) of any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries;
(h) of the entry by the Company into any Specified Swap
Contract, together with the details thereof;
(i) of the occurrence of any default, event of default,
termination event or other event under any Specified Swap Contract
that after the giving of notice, passage of time or both, would permit
either counter party to such Specified Swap Contract to terminate
early any or all trades relating to such contract;
(j) at least thirty (30) days prior thereto, that the
Company or any Subsidiary intends to change its name or address from
that disclosed to the Banks as of the Closing Date, together with
disclosures of such new name or address; and
73
(k) upon the request from time to time of the
Administrative Agent, the Swap Termination Values, together with a
description of the method by which such amounts were determined,
relating to any then-outstanding Swap Contracts to which the Company
or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of
the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect
thereto and at what time. Each notice under subsection 7.03(a) shall
describe with particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been (or foreseeably will
be) breached or violated.
Section 7.04 Preservation of Corporate Existence, Etc.
The Company shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation; provided, however, that the Dormant
Subsidiaries shall be dissolved on or before December 31, 1998 and
notwithstanding anything herein to the contrary, the Company shall not
and shall not permit any Subsidiary to, transfer any assets to such
Dormant Subsidiaries.
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its
business except in connection with transactions permitted by
Section 8.03 and sales of assets permitted by Section 8.02;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
Nothing in this Section 7.04 shall prohibit the liquidation or
dissolution of any Subsidiary into the Company or another Subsidiary
of the Company (but if the liquidating or dissolving Subsidiary is a
Restricted Subsidiary, it must liquidate or dissolve in the Company or
another Restricted Subsidiary).
Section 7.05 Maintenance of Property.
The Company shall maintain, and shall cause each Subsidiary to
maintain, and preserve all its property which is used or useful in its
business in good working order and condition, ordinary wear and tear
excepted, except as permitted by Section 8.02. The Company and each
Subsidiary shall use the standard of care typical in the industry in
the operation and maintenance of its facilities; provided, however,
74
that nothing in this Section shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of
any of its properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of
Directors of the Company or of the Board of Directors of the
Subsidiary concerned, or of an officer (or other agent employed by the
Company or any of its Subsidiaries) of the Company or such Subsidiary
having managerial responsibility for such property, desirable in the
conduct of the business of the Company or such Subsidiary; provided
further, however, that any disposal of any property pursuant to the
immediately preceding proviso shall be subject to the terms and
conditions of Article VIII of this Agreement.
Section 7.06 Insurance.
In addition to insurance requirements set forth in the Collateral
Documents, the Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons; including workers' compensation
insurance, public liability and property and casualty insurance which
amount shall not be reduced by the Company in the absence of thirty
(30) days' prior notice to the Administrative Agent. All such
insurance shall name the Administrative Agent as loss payee/mortgagee
and as additional insured, for the benefit of the Banks, as their
interests may appear. All casualty and key man insurance maintained
by the Company shall name the Administrative Agent as loss payee and
all liability insurance shall name the Administrative Agent as
additional insured for the benefit of the Banks, as their interests
may appear. Upon request of the Administrative Agent or any Bank, the
Company shall furnish the Administrative Agent, with sufficient copies
for each Bank, at reasonable intervals (but not more than once per
fiscal year) a certificate of a Responsible Officer of the Company
(and, if requested by the Administrative Agent, any insurance broker
of the Company) setting forth the nature and extent of all insurance
maintained by the Company and its Subsidiaries in accordance with this
Section or any Collateral Documents (and which, in the case of a
certificate of a broker, were placed through such broker).
Section 7.07 Payment of Obligations.
The Company shall, and shall cause each Subsidiary to, pay and
discharge as the same shall become due and payable, all of the
following obligations and liabilities:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the
Company or such Subsidiary; and
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(b) all lawful claims which, if unpaid, would by law become
a Lien upon its property.
Section 7.08 Compliance with Laws.
The Company shall comply, and shall cause each Subsidiary to
comply, in all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may
be contested in good faith or as to which a bona fide dispute may
exist.
Section 7.09 Compliance with ERISA.
The Company shall, and shall cause each of its ERISA Affiliates
to: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a)
of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code, except
where the Company's failure to comply with the requirements of (a),
(b) and (c) hereof has not resulted or could not reasonably be
expected to result in liability of the Company and the Subsidiaries in
excess of $500,000 in the aggregate.
Section 7.10 Inspection of Property and Books and Records..
The Company shall maintain and shall cause each Subsidiary to
maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets
and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of any Agent or any Bank to visit and inspect
any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances
and accounts with their respective directors, officers, and
independent public accountants, all at the expense of the Company and
at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, when an Event of Default exists any Agent
or any Bank may do any of the foregoing at the expense of the Company
at any time during normal business hours and without advance notice.
Section 7.11 Environmental Laws.
(a) The Company shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in
compliance in all material respects with all Environmental Laws.
(b) Upon the written request of any Agent or any Bank, the
Company shall submit and cause each of its Subsidiaries to submit, to
the Administrative Agent with sufficient copies for each Bank, at the
Company's sole cost and expense, at reasonable intervals, a report
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providing an update of the status of any environmental, health or
safety compliance, hazard or liability issue identified in any notice
or report required pursuant to subsection 7.03(d), that could,
individually or in the aggregate, result in liability in excess of
$500,000.
Section 7.12 Use of Proceeds.
The Company shall use the proceeds of the Loans for working
capital and other general corporate purposes including to finance the
acquisition of New West not in contravention of any Requirement of Law
or of any Loan Document.
Section 7.13 Further Assurances.
(a) The Company shall ensure that all written information,
exhibits and reports furnished to any Agent or the Banks do not and
will not contain any untrue statement of a material fact and do not
and will not omit to state any material fact or any fact necessary to
make the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Agents
and the Banks and correct any defect or error that may be discovered
therein or in any Loan Document or in the execution, acknowledgment or
recordation thereof.
(b) Promptly upon request by any Agent or the Majority
Banks, the Company shall (and shall cause any of its Subsidiaries to)
do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof,
termination statements, notices of assignment, transfers,
certificates, assurances and other instruments any Agent or such
Banks, as the case may be, may reasonably require from time to time in
order (i) to carry out more effectively the purposes of this Agreement
or any other Loan Document, (ii) to subject to the Liens created by
any of the Collateral Documents any of the properties, rights or
interests covered by any of the Collateral Documents, (iii) to perfect
and maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created thereby, and
(iv) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Agents and Banks the rights granted or now
or hereafter intended to be granted to the Banks under any Loan
Document or under any other document executed in connection therewith.
Section 7.14 Bank Accounts.
(a) Within 180 days of the Closing Date, the Company shall, and
shall cause each Subsidiary to, cause (i) each Credit Card Agreement
to be executed and delivered to the Administrative Agent, and (ii) all
Collections and other amounts received by the Company or a Restricted
Subsidiary from any Account Debtor or any other source immediately
upon receipt to be deposited into any account with respect to which
the Company, or a Restricted Subsidiary of the Company, as the case
may be, has provided irrevocable directions in writing, in form and
substance satisfactory to the Agents, to each of such banks into
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which such Collections are at any time deposited to send all funds
deposited in such accounts by wire transfer on a daily basis to the
Concentration Account and such banks shall agree in writing to do so.
Such authorization and direction shall not be rescinded, revoked or
modified without the prior written consent of the Agents.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, open or maintain any deposit or investment account with
any bank or other financial institution other than the accounts
described on Schedule 7.14 as supplemented on a quarterly basis by
notice of the Administrative Agent. The Company shall maintain the
Concentration Account and the account into which proceeds of the Loans
are disbursed in accounts maintained with the Administrative Agent or
Documentation Agent.
Section 7.15 Inventory in Transit.
In order for any Inventory of the Company or a Restricted
Subsidiary constituting inventory in transit to the Company or a
Restricted Subsidiary to constitute Eligible Inventory, the Company or
such Restricted Subsidiary shall (i) prior to each shipment from a
supplier, provide the Administrative Agent with a description of such
Inventory, the place of shipment, the place of origin of the shipment,
the name, address and telephone number of the shipper, the destination
of such Inventory and such other information as the Administrative
Agent shall request, (ii) endorse and deliver to the Administrative
Agent the originals of any negotiable xxxx of lading or other shipping
document or document of title concerning the shipment of such
Inventory, and (iii) execute and deliver to Administrative Agent such
UCC financing statements and other documents as the Administrative
Agent may require to enable the Administrative Agent to perfect or
maintain the perfection of the Administrative Agent's Lien on such
Inventory.
Section 7.16 Year 2000 Compatibility.
The Company will, and will cause each of its Subsidiaries to,
take all action necessary to ensure that its computer-based systems
are able to operate and effectively process data including dates on
and after January 1, 2000, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect. At the
request of the Administrative Agent or the Majority Banks, the Company
will provide reasonable assurance of its year 2000 compatibility.
Section 7.17 Covenants Regarding Formation of Subsidiaries.
At any time of (a) the formation of any new Subsidiary by the
Company or any Subsidiary of the Company whether pursuant to a
permitted Acquisition or otherwise or (b) any Unrestricted Subsidiary
becoming a Restricted Subsidiary hereunder, the Company will, and will
cause any such Restricted Subsidiaries (a) to provide to the
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Documentation Agent an executed Subsidiary Guaranty and Subsidiary
Security Agreement by such new Restricted Subsidiary, together with
appropriate UCC-1 financing statements and appropriate attachments,
all in form and substance satisfactory to the Agents, and (b) to
provide to the Documentation Agent a Pledge Agreement or Subsidiary
Pledge Agreement, as appropriate, together with such other
documentation as is, in the reasonable opinion of the Bank,
appropriate to give effect to the pledge of the shares of such
Restricted Subsidiary, in form and substance satisfactory to the
Agents. In addition to the foregoing, the Company shall provide to
the Documentation Agent such opinions and other documentation as shall
be reasonably requested by the Agents. Each document, agreement or
instrument executed or issued pursuant to this Section 7.15 shall be a
"Collateral Document" for purposes of this Credit Agreement.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
Section 8.01 Limitation on Liens.
The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) any Lien (other than a Lien on the Collateral) existing
on property of the Company or any Subsidiary on the Closing Date and
set forth in Schedule 8.01 securing Indebtedness outstanding on such
date or any extension, renewal or refinancing thereof so long as the
Indebtedness secured by such Lien is not increased and the terms of
such extension, renewal or refinancing are not more onerous on the
Company and its Subsidiaries than the Indebtedness so extended,
renewed or refinanced;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 7.07, provided that no notice of lien has been
filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
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(e) Liens (other than any Lien imposed by ERISA and other
than on the Collateral) consisting of pledges or deposits required in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of the Company or its Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
(ii) contingent obligations on surety and appeal bonds, and
(iii) other non-delinquent obligations of a like nature; in each case,
incurred in the ordinary course of business, provided all such Liens
in the aggregate would not (even if enforced) cause a Material Adverse
Effect;
(g) Liens consisting of judgment or judicial attachment
liens that do not constitute Events of Default under Section 9.01(i);
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;
(i) Liens on assets of corporations which become
Subsidiaries after the date of this Agreement, provided, however, that
such Liens existed at the time the respective corporations became
Subsidiaries and were not created in anticipation thereof, and the
Indebtedness secured thereby shall be permitted under Section 8.05(e);
(j) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries securing
Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property; provided that (i) any
such Lien attaches to such property concurrently with or within 45
days after the acquisition thereof, (ii) such Lien attaches solely to
the property so acquired in such transaction, (iii) the principal
amount of the debt secured thereby does not exceed 100% of the cost of
such property, and (iv) the Purchase Money Indebtedness secured by any
and all such purchase money security interests shall be permitted
under Section 8.05(e);
(k) Liens securing Capitalized Lease Obligations on assets
subject to such leases, provided that the Indebtedness secured thereby
shall be permitted under Section 8.05(e);
(l) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution; provided that
(i) such deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by the Company in
excess of those set forth by regulations promulgated by the FRB, and
(ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
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(m) Liens consisting of pledges of cash collateral or
government securities not constituting Collateral to secure on a xxxx-
to-market basis Permitted Swap Obligations only, provided that (i) the
counter party to any Swap Contract relating to any such Permitted Swap
Obligation is under a similar requirement to deliver similar
collateral from time to time to the Company or the Subsidiary party
thereto on a xxxx-to-market basis; and (ii) the aggregate value of
such collateral so pledged by the Company and the Subsidiaries
together in favor of any counter party does not at any time exceed
$500,000;
(n) Liens on any Managed Care Subsidiary pursuant to the
applicable rules and regulations of, or undertakings made to, any
regulatory entity having jurisdiction and authority over such Managed
Care Subsidiary; and
(o) Liens on intercompany Indebtedness permitted under
Section 8.05(c) hereof.
Section 8.02 Disposition of Assets.
The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of
transactions) any property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar
replacement equipment, or the proceeds of such sale are reasonably
promptly applied to the purchase price of such replacement equipment;
(c) Disposition of any real property which is subject to a
Mortgage and other Dispositions not otherwise permitted hereunder
which are made for fair market value; provided, that (i) at the time
of any disposition, no Event of Default shall exist or shall result
from such Disposition, (ii) the aggregate sales price from such
disposition shall be paid in Qualified Proceeds, (iii) the aggregate
value of all assets (other than the Arizona Property) so sold by the
Company and its Subsidiaries, together, shall not exceed $500,000 in
the aggregate and (iv) the cash portion of Net Proceeds relating to
any such Disposition promptly shall be used to make a prepayment of
the Loans and the non-cash portion of any such Net Proceeds promptly
shall be pledged to the Administrative Agent to secure the Obligations
pursuant to documentation reasonably acceptable to the Agents;
provided, that no such repayment shall be required in any Disposition
so long as the aggregate Net Proceeds from such Disposition together
with the Net Proceeds from all other Dispositions made during such
fiscal year are less than $50,000 in the aggregate; and
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(d) subleases of real property and equipment in the
ordinary course of business to independent eye care professionals.
Section 8.03 Consolidations and Mergers.
The Company shall not, and shall not suffer or permit any
Subsidiary to, merge, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a
series of transactions all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided
that the Company shall be the continuing or surviving corporation, or
with any one or more Restricted Subsidiaries, provided that if any
transaction shall be between an Unrestricted Subsidiary and a
Restricted Subsidiary, the Restricted Subsidiary shall be the
continuing or surviving corporation, and any Unrestricted Subsidiary
may merge with another Unrestricted Subsidiary; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or a
Restricted Subsidiary, and any Unrestricted Subsidiary may sell all or
substantially all of its assets (upon voluntary liquidation or
otherwise) to another Unrestricted Subsidiary.
Section 8.04 Loans and Investments.
The Company shall not purchase or acquire, or suffer or permit
any Subsidiary to purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make or commit
to make any Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment
in, any Person including any Affiliate of the Company (together,
"Investments"), except for:
(a) Investments held by the Company or any Subsidiary in
the form of cash equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business;
(c) Investments by the Company in any of its Restricted
Subsidiaries or by any of its Restricted Subsidiaries in another of
its Restricted Subsidiaries;
(d) Investments incurred in order to consummate
Acquisitions; provided that (i) the Majority Banks consent to such
Acquisitions in writing, (ii) such Acquisitions are undertaken in
accordance with all applicable Requirements of Law; and (iii) the
Documentation Agent shall have received such additional collateral
documentation required by the Agents, in form and substance
satisfactory to the Agents;
82
(e) Investments incurred in order to consummate the
Acquisition of the assets of Rx Optical, Inc., which operates retail
vision centers in stores owned by Meijers, Inc., so long as such
Investments do not exceed $ 800,000 in the aggregate;
(f) Investments made on or after the Closing Date by the
Company or any Restricted Subsidiary in Unrestricted Subsidiaries not
to exceed $2,000,000 in the aggregate;
(g) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) Loans to employees of the Company or its Subsidiaries
not to exceed $200,000 at any time outstanding; and
(i) Investments made in New West pursuant to the New West
Purchase Documents in an aggregate amount of not more than
$69,000,000.
Section 8.05 Limitation on Indebtedness.
The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.08;
(c) Intercompany Indebtedness issued to the Company by its
Restricted Subsidiaries and, to the extent permitted by Section
8.04(f), intercompany Indebtedness issued to the Company by
Unrestricted Subsidiaries provided that, within thirty (30) days after
the Closing Date, any and all of such Indebtedness shall be evidenced
by a promissory note or notes which shall be assigned and delivered to
the Administrative Agent for the benefit of the Banks pursuant to the
Security Agreement;
(d) Indebtedness existing on the Closing Date and set forth
in Schedule 8.05;
(e) Indebtedness in an aggregate amount not to exceed
$2,000,000 at any time secured by Liens otherwise permitted by
subsection 8.01(i), (j), (k) and (m); and
(f) Any extension, renewal or refinancing of any of the
foregoing Indebtedness so long as the principal amount thereof is not
increased as a result thereof and the terms thereof are no more
adverse to the Company and its Subsidiaries or the Banks than the
Indebtedness so extended, renewed or refinanced.
83
Section 8.06 Transactions with Affiliates.
The Company shall not, and shall not suffer or permit any
Subsidiary to, enter into any transaction with any Affiliate of the
Company, except upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company
or such Subsidiary.
Section 8.07 Use of Proceeds.
The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance indebtedness of the Company or
others incurred to purchase or carry Margin Stock, (iii) to extend
credit for the purpose of purchasing or carrying any Margin Stock, or
(iv) to acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act, except in compliance with such
Sections.
Section 8.08 Contingent Obligations.
The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in Schedule
8.08; and
(d) Contingent Obligations with respect to Surety
Instruments incurred to provide security for workers' compensation
claims, payment obligations in connection with self-insurance or
similar requirements, in each case incurred in the ordinary course of
business and securing obligations not constituting Indebtedness; and
(e) Contingent Obligations with respect to Surety
Instruments incurred in respect of trade letters of credit, standby
letters of credit or performance, surety or appeal bonds, in each case
incurred in the ordinary course of business and securing obligations
not constituting Indebtedness and not exceeding at any time $250,000
in the aggregate in respect of the Company and its Subsidiaries
together.
Section 8.09 Joint Ventures.
The Company shall not, and shall not suffer or permit any
Subsidiary to enter into any Joint Venture, except that the Company
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and its Subsidiaries may enter into alliances with other retailers or
managed care companies to solicit and perform managed care contracts
which agreements must be reasonably acceptable to the Majority Banks.
Section 8.10 Restricted Payments.
The Company shall not, and shall not suffer or permit any
Subsidiary to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock,
or purchase, redeem or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding (all such dividends,
distributions, purchases, redemptions or acquisitions are herein
referred to as "Restricted Payments"); except that the Company and any
Restricted Subsidiary may:
(a) declare and make dividend payments or other
distributions payable solely in its common stock;
(b) make repurchases of the common stock of the Company
from employees of the Company or any of its Subsidiaries or their
authorized representatives or successors upon the death, disability or
termination of employment of such employees in an aggregate amount not
to exceed $500,000 in any calendar year as long as no Default or Event
of Default shall have occurred and be continuing or result therefrom;
and
(c) make repurchases of the common stock of the Company
pursuant to the terms of the Put Option Agreement, dated October 1,
1997, by and between the Company and Xxxxx Xxxxxxx, O.D., as such
agreement is in effect in all material respects on the Closing Date,
as long as no Default or Event of Default shall have occurred and be
continuing or result therefrom, in amounts not to exceed $700,000
during the period from January 1, 1999 until February 1, 1999, or to
the extent the put rights thereunder have not been exercised by Xxxxx
Xxxxxxx in the prior period, $900,000 during the period from January 1,
2000 until February 1, 2000.
Section 8.11 ERISA.
The Company shall not, and shall not suffer or permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any
Plan which has resulted or could reasonably expected to result in
liability of the Company in an aggregate amount in excess of $500,000;
or (b) engage in a transaction that could be subject to Section 4069
or 4212(c) of ERISA which has resulted or could reasonably be expected
to result in liability by the Company in an aggregate amount in excess
of $500,000.
Section 8.12 Change in Business.
The Company shall not, and shall not suffer or permit any
Subsidiary to, engage in any material line of business which is not
reasonably related or complimentary to those lines of business carried
on by the Company and its Subsidiaries on the date hereof.
Section 8.13 Accounting Changes.
The Company shall not, and shall not suffer or permit any
Subsidiary to, make any significant change in accounting treatment or
85
reporting practices, except as required by GAAP, or change the fiscal
year of the Company or of any Subsidiary.
Section 8.14. Financial Covenants.
(a) Leverage Ratio. The Company shall not permit as of the last
day of the fiscal quarter ending closest to December 31, 1998, and as
of the last day of each fiscal quarter thereafter, the ratio of the
Company's and its Subsidiaries' (on a consolidated basis) Indebtedness
to Adjusted EBITDA for the four fiscal quarters then ending to be
greater than the amount set forth in the table below for such period:
As of the four fiscal quarter The ratio of Indebtedness
period ending closest to: to Adjusted EBITDA
shall not exceed:
-------------------------------------------------------------
December 31, 1998 and each 4.75 to 1.00
fiscal quarter thereafter until
December 31,1999 and each 4.25 to 1.00
fiscal quarter thereafter until
December 31, 2000 and each 4.00 to 1.00
fiscal quarter thereafter until
September 30, 2001 3.50 to 1.00
(b) Coverage Ratio. The Company shall not permit as of the last
day of the fiscal quarter ending closest to December 31, 1998, and as
of the last day of each fiscal quarter thereafter, the ratio of the
Company's and its Subsidiaries' (on a consolidated basis) (i) EBIRTDA
for the immediately preceding four fiscal quarters to (ii) the sum of
(x) (A) for the December 31, 1998 calculation date, the Interest
Expense for the fiscal quarter ending closest to December 31, 1998
times four, (B) for the March 31, 1999 calculation date, the Interest
Expense for the two fiscal quarter period ending closest to March 31,
1999 times two, (C) for the June 30, 1999 calculation date, the
Interest Expense for the three fiscal quarter period ending closest to
June 30, 1999 times four/thirds (4/3), and (D) for the fiscal quarter
ended closest to September 30, 1999 calculation date and each
calculation date thereafter, the Interest Expense for the four fiscal
quarter period ended on such calculation date, plus (y) rent and other
occupancy expenses paid on account of all operating leases of any type
(including equipment and real estate) and license agreements during
the four fiscal quarters ended on such calculation date to be less
than 1.25 to 1.00.
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(c) Minimum EBITDA. The Company shall not permit as of the last
day of the fiscal quarter ending closest to September 30, 1998, and as
of the last day of each fiscal quarter thereafter, the Company's and
its Subsidiaries' (on a consolidated basis) EBITDA for the immediately
preceding four quarters to be less than the amount set forth in the
table below for such period:
As of the four fiscal quarter EBITDA shall not be
period ending closest to: less than:
--------------------------------------------------------
September 30, 1998 and each $27 Million
fiscal quarter thereafter until
December 31, 1999 and each $35 Million
fiscal quarter thereafter until
December 31, 2000 and each $40 Million
fiscal quarter thereafter
(d) Capital Expenditures. The Company shall not, and shall not
permit any Restricted Subsidiary to, make capital expenditures in
excess of $11,000,000 in the aggregate for the fiscal year ended
January 2, 1999 and $12,000,000 in the aggregate for each fiscal year
ended thereafter.
Section 8.15. Amendments.
The Company shall not, and shall not permit any Subsidiary to,
permit or suffer any material amendments, modifications, supplements,
or restatements of (a) its certificate of incorporation, by-laws, or
other governing documents, as applicable, or (b) in any manner adverse
to the Banks, the Senior Notes, the Indenture, any leases referred to
in Section 6.23 or any of its other material contracts or any
Indebtedness permitted under Section 8.05.
Section 8.16. Managed Care Contracts.
Notwithstanding anything herein which may be construed to the
contrary, the Company shall not, and shall not permit any Subsidiary
to, incur or permit to exist any Deficiency (as defined below) under
any managed care contract in excess of $5,000,000 in the aggregate
with respect to the Company and its Subsidiaries taken as a whole.
For purposes of this Section 8.16, a "Deficiency" shall mean, with
respect to a managed care contract, that payments made by the Company
or a Subsidiary to healthcare providers are greater than $5,000,000
more than capitation revenues received by the Company or such
Subsidiary on a cumulative basis from and after the Closing Date.
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Section 8.17 No Other Negative Pledges.
The Company will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist
any agreement or restriction that prohibits or conditions the
creation, incurrence or assumption of any Lien upon or with respect to
any part of its property or assets, whether now owned or hereafter
acquired, or agree to do any of the foregoing, other than as set forth
in (i) this Agreement, the Collateral Documents or the Indenture,
(ii) any agreement or instrument creating a Permitted Lien (but only
to the extent such agreement or restriction applies to the assets
subject to such Permitted Lien), and (iii) operating leases of real or
personal property entered into by the Company or any of its
Subsidiaries as lessee in the ordinary course of business.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Event of Default.
Any of the following shall constitute an "Event of Default":
(a) Non-Payment. The Company fails to make, (i) when and
as required to be made herein, payments of any amount of principal of
any Loan or of any L/C Obligation; or (ii) within two (2) Business
Days after the same becomes due, payment of any interest, fee or any
other amount payable hereunder or under any other Loan Document (other
than a Specified Swap Contract); or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made herein
(other than in Section 6.21), in any other Loan Document other than a
Specified Swap Contract, or which is contained in any certificate,
document or financial or other statement by the Company, any
Subsidiary, or any Responsible Officer, furnished at any time under
this Agreement, or in or under any other Loan Document, is incorrect
in any material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of
Section 7.01, 7.02, 7.03 or 7.09 or in Article VIII; or
(d) Other Defaults. The Company or any Subsidiary party
thereto fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of ten (10) Business
Days after the date upon which a Responsible Officer knew or
reasonably should have known of such failure; or
(e) Cross-Default. (i) The Company or any Subsidiary
(A) fails to make any payment in respect of any Indebtedness or
Contingent Obligation, having an aggregate principal amount (including
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undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of
more than $500,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise); or (B) fails to
perform or observe any other condition or covenant, or any other event
shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, if the
effect of such failure, event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated
maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Company's or any Subsidiary's properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released,
vacated or fully bonded within sixty (60) days after commencement,
filing or levy; (ii) the Company or any Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered
in any Insolvency Proceeding; or (iii) the Company or any Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to
a Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $500,000; or (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $500,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $500,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against the Company or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent third-
party insurance as to which the insurer does not dispute coverage) as
to any single or related series of transactions, incidents or
conditions, of $500,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of
twenty (20) days after the entry thereof; or
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(j) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against the Company or any Subsidiary which
does or would reasonably be expected to have a Material Adverse
Effect, and there shall be any period of twenty (20) consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control;
or
(l) Loss of Licenses. Any other Governmental Authority
revokes or fails to renew any material license, permit or franchise of
the Company or any Subsidiary, or the Company or any Subsidiary for
any reason loses any material license, permit or franchise, or the
Company or any Subsidiary suffers the imposition of any restraining
order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any material
license, permit or franchise, provided that such event results in or
could reasonably be expected to result in a loss of annual revenue or
potential revenue of at least the lesser of (i) $3,000,000 or (ii) one
percent (1%) of the gross revenues of the Company (on a consolidated
basis with its Subsidiaries) for the most recently ended twelve-month
period; or
(m) Adverse Change. There occurs a Material Adverse
Effect; or
(n) Collateral.
(i) any material provision of any Collateral Document
shall for any reason cease to be valid and binding on or
enforceable against the Company or any Subsidiary party thereto
or the Company or any Subsidiary shall so state in writing or
bring an action to limit its obligations or liabilities
thereunder; or
(ii) any Collateral Document shall for any reason
(other than pursuant to the terms thereof) cease to create a
valid security interest in the Collateral purported to be covered
thereby or such security interest shall for any reason cease to
be a perfected and first priority security interest subject only
to Permitted Liens;
(o) There shall occur a default or event of default under
the Senior Notes;
(p) Xxxxx Xxxxxx shall cease to be the chairman and chief
executive officer of the Company and Xxxxx Xxxx shall cease to be the
chief operating officer of the Borrower and such officer shall not
have been replaced by a new officer reasonably acceptable to the Banks
within ninety (90) days; or
(q) The Company or any of its Subsidiaries shall at any
time disavow any of its obligations under, or shall assert the
invalidity or enforceablity of, any of the Collateral Documents.
Section 9.02 Remedies.
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If any Event of Default occurs, the Administrative Agent shall,
at the request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank and Swingline Bank
to make Loans and any obligation of the Issuing Bank to Issue Letters
of Credit to be terminated, whereupon such commitments and obligations
shall be terminated;
(b) declare that the Obligations be Cash Collateralized by
an amount equal to the maximum aggregate amount that is or at any time
thereafter may become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of Credit) to be
immediately due and payable, and declare the unpaid principal amount
of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights
and remedies available to it and the Banks under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 9.01 (in the case of clause (i) of
subsection (g) upon the expiration of the sixty (60) day period
mentioned therein), the obligation of each Bank to make Loans and any
obligation of the Issuing Bank to Issue Letters of Credit shall
automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent, the Issuing Bank or any Bank.
Section 9.03 Specified Swap Contract Remedies.
Notwithstanding any other provision of this Article IX, each Swap
Provider shall have the right, with prior notice to the Administrative
Agent, but without the approval or consent of the Administrative Agent
or the other Banks, with respect to any Specified Swap Contract of
such Swap Provider, (a) to declare an event of default, termination
event or other similar event thereunder and to create an Early
Termination Date, (b) to determine net termination amounts in
accordance with the terms of such Specified Swap Contracts and to set-
off amounts between Specified Swap Contracts, and (c) to prosecute any
legal action against the Company to enforce net amounts owing to such
Swap Provider.
Section 9.04 Rights Not Exclusive.
The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter
arising.
Section 9.05 Application of Payments.
Subsequent to the acceleration of the Obligations under Section
9.02 hereof, payments and prepayments with respect to the Obligations
made to any Agent, the Banks, the Issuing Bank or otherwise received
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by any Agent, any Bank, the Issuing Bank (from realization on
Collateral or otherwise) shall be distributed in the following order
of priority: FIRST, to the costs and expenses (including actual and
reasonable attorneys' fees and expenses), if any, incurred by any
Agent, any Bank, any Issuing Bank in the collection of such amounts
under this Agreement or of the Loan Documents, including, without
limitation, any reasonable costs incurred in connection with the sale
or disposition of any Collateral; SECOND, to any fees then due and
payable to the Agents, the Banks and the Issuing Bank under this
Agreement or any other Loan Document; THIRD, to the payment of
interest then due and payable on the Loans; FOURTH, to the extent
there are any unreimbursed drawings under any Letter of Credit, to the
Issuing Bank in respect of such unreimbursed drawings then
outstanding; FIFTH, to the payment of principal then due and payable
on the Loans; SIXTH, to any other Obligations not otherwise referred
to in this Section 9.03; SEVENTH, to damages incurred by any Agent,
the Issuing Bank or any Bank by reason of any breach hereof or of any
other Loan Document; and EIGHTH, upon satisfaction in full of all
Obligations to the Company or as otherwise required by law.
ARTICLE X
THE AGENTS
Section 10.01 Appointment and Authorization: Agents.
(a) Each Bank hereby irrevocably (subject to Section 10.09)
appoints, designates and authorizes the Agents 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 it 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, no Agent
shall have any duties or responsibilities, except those expressly set
forth herein, nor shall any Agent have or be deemed to have any
fiduciary relationship with any Bank, 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 any Agent. Without limiting the generality of the
foregoing sentence, the use of the term "Administrative Agent",
"Documentation Agent" and "Agents" in this Agreement with reference to
the Administrative Agent, the Documentation Agent or the Agents, as
the case may be, 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.
(b) The Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the
Agent may agree at the request of the Majority Lenders to act for such
Issuing Bank with respect thereto; provided, however, that the Issuing
Bank shall have all of the benefits and immunities (i) provided to the
Agents in this Article X with respect to any acts taken or omissions
suffered by the Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit
as fully as if the term "Agent", as used in this Article X, included
the Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing
Bank.
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Section 10.02 Delegation of Duties.
Each Agent may execute any of its 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 concerning all
matters pertaining to such duties. No Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that
it selects with reasonable care.
Section 10.03 Liability of Agents.
None of the Administrative Agent-Related Persons nor the
Documentation Agent - Related Persons shall (i) 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 for its own gross negligence
or willful misconduct), or (ii) be responsible in any manner to any of
the Banks for any recital, statement, representation or warranty made
by the Company or any Subsidiary 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 Administrative
Agent or the Documentation Agent, as the case may be, under or in
connection with, this Agreement or any other Loan Document, or for the
value of or title to any Collateral, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document, or for any failure of the Company or any other
party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person nor any
Documentation Agent - Related Person shall be under any obligation to
any Bank 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.
Section 10.04 Reliance by Agents.
(a) Each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, 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 such Agent. Each
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 Majority Banks as it
deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. Each 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 Majority Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the
Banks.
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(b) For purposes of determining compliance with the
conditions specified in Section 5.01, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter either sent by
any Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to the Bank.
Section 10.05 Notice of Default.
Neither Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be
paid to such Agent for the account of the Banks, unless such Agent
shall have received written notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Each
Agent will notify the Banks of its receipt of any such notice. Each
Agent shall take such action with respect to such Default or Event of
Default as may be requested by the Majority Banks in accordance with
Article IX; provided, however, that unless and until the
Administrative Agent has received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the
Banks.
Section 10.06 Credit Decision.
Each Bank acknowledges that none of the Administrative Agent-
Related Persons or Documentation Agent - Related Persons has made any
representation or warranty to it, and that no act by any Agent
hereinafter taken, including any review of the affairs of the Company
and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Administrative Agent-Related Person or
Documentation Agent-Related Person, as the case may be, to any Bank.
Each Bank represents to the Agents that it has, independently and
without reliance upon any Administrative Agent-Related Person or
Documentation Agent-Related Person, as the case may be, 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 Company and its Subsidiaries, the value of and
title to any Collateral, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the
Company hereunder. Each Bank also represents that it will,
independently and without reliance upon any Administrative Agent-
Related Person or Documentation Agent-Related Person, as the case may
be, 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 Banks by the any Agent, no Agent shall have any duty or
responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which
may come into the possession of any of the Administrative Agent-
Related Persons or Documentation Agent-Related Person, as the case may
be.
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Section 10.07 Indemnification of Agent.
Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand the Administrative
Agent-Related Persons and the Documentation Agent-Related Persons (to
the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that
no Bank shall be liable for the payment to the Administrative Agent-
Related Persons or Documentation Agent-Related Person, as the case may
be, of any portion of such Indemnified Liabilities resulting solely
from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse each Agent upon
demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by such 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
such Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of the
Administrative Agent or the Documentation Agent, as the case may be.
Section 10.08 Agents in Individual Capacity.
Each of First Union and BofA 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 Company and its Subsidiaries and Affiliates as though First
Union or BofA were not an Agent or, in the case of BofA, the Issuing
Bank hereunder and without notice to or consent of the Banks. The
Banks acknowledge that, pursuant to such activities, First Union or
BofA or their respective 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
Subsidiary) and acknowledge that the Agents shall be under no
obligation to provide such information to them. With respect to its
Loans, each of First Union and BofA shall have the same rights and
powers under this Agreement as any other Bank and may exercise the
same as though it were not an Agent or, in the case of BofA, the
Issuing Bank, and the terms "Bank" and "Banks" include each of First
Union and BofA in its individual capacity.
Section 10.09 Successor Agents.
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Each Agent may, and at the request of the Majority Banks shall,
resign as an Agent upon thirty (30) days' notice to the Banks and the
Company. If any Agent resigns under this Agreement, the Majority
Banks shall appoint from among the Banks a successor Administrative
Agent or Documentation Agent, as the case may be, for the Banks. If
no successor Administrative Agent or Documentation Agent, as the case
may be, is appointed prior to the effective date of the resignation of
the Administrative Agent or Documentation Agent, the Administrative
Agent or Documentation Agent, as the case may be, may appoint, after
consulting with the Banks and the Company, a successor Agent from
among the Banks. 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 Administrative Agent or
Documentation Agent, as the case may be, and the term "Administrative
Agent" or "Documentation Agent", as the case may be, shall mean such
successor Agent and the Agent's appointment, powers and duties as
Administrative Agent or Documentation Agent, as the case may be, shall
be terminated. After any retiring Agent's resignation hereunder as
Administrative Agent or Documentation Agent, as the case may be, the
provisions of this Article X and Sections 11.04 and 11.05 shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement. If no successor agent has
accepted appointment as Administrative Agent or Documentation Agent,
as the case may be, by the date which is thirty (30) days following a
retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the
Banks shall perform all of the duties of the Administrative Agent or
Documentation Agent, as the case may be, hereunder until such time, if
any, as the Majority Banks appoint a successor Administrative Agent or
Documentation Agent, as the case may be, as provided for above.
Notwithstanding the foregoing, however, First Union may not be removed
as the Administrative Agent at the request of the Majority Banks
unless First Union shall also simultaneously be replaced as "Issuing
Bank" hereunder pursuant to documentation in form and substance
reasonably satisfactory to First Union.
Section 10.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441
or 1442 of the Code, such Bank agrees with and in favor of the
Administrative Agent, to deliver to the Administrative Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
two properly completed and executed copies of IRS Form 1001
before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business
of such Bank, two properly completed and executed copies of IRS
Form 4224 before the payment of any interest is due in the first
taxable year of such Bank and in each succeeding taxable year of
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such Bank during which interest may be paid under this Agreement;
and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition
to exemption from, or reduction of, United States withholding
tax.
Such Bank agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Bank sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of the Company to
such Bank, such Bank agrees to notify the Administrative Agent of the
percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Bank. To the extent of such
percentage amount, the Administrative Agent will treat such Bank's IRS
Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank
agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from
any interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such reduction.
However, if the forms or other documentation required by
subsection (a) of this Section are not delivered to the Administrative
Agent, then the Administrative Agent may withhold from any interest
payment to such Bank not providing such forms or other documentation
an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Bank (because the appropriate form was
not delivered or was not properly executed, or because such Bank
failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Bank shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under
this Section, together with all costs and expenses (including Attorney
Costs). The obligation of the Banks under this subsection shall
survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
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Section 10.11 Collateral Matters.
(a) Each Agent is authorized on behalf of all the Banks,
without the necessity of any notice to or further consent from the
Banks, from time to time to take any action with respect to any
Collateral or the Collateral Documents which may be necessary to
perfect and maintain perfected the security interest in and Liens upon
the Collateral granted pursuant to the Collateral Documents.
(b) The Banks irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien
granted to or held by the Administrative Agent upon any Collateral
(i) upon termination of the Commitments and payment in full of all
Loans and all other Obligations known to the Administrative Agent and
payable under this Agreement or any other Loan Document;
(ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder;
(iii) constituting property in which the Company or any Subsidiary
owned no interest at the time the Lien was granted or at any time
thereafter; (iv) constituting property leased to the Company or any
Subsidiary under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire and
which has not been, and is not intended by the Company or such
Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness
evidenced thereby has been paid in full; or (vi) if approved,
authorized or ratified in writing by the Majority Banks or all the
Banks, as the case may be, as provided in subsection 11.01(f). Upon
request by the Administrative Agent at any time, the Banks will
confirm in writing the Administrative Agent's authority to release
particular types or items of Collateral pursuant to this
subsection 10.11(b), provided that the absence of any such
confirmation for whatever reason shall not affect the Administrative
Agent's rights under this Section 10.11.
(c) Each Bank agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any
Subsidiary) that the Company's obligation to such Bank under this
Agreement and the other Loan Documents is not and shall not be secured
by any real property collateral now or hereafter acquired by such Bank
other than any real property described in the Mortgages.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Amendments and Waivers.
No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by
the Company or any applicable Restricted Subsidiary therefrom, shall
be effective unless the same shall be in writing and signed by the
Majority Banks (or by the Administrative Agent or Documentation Agent,
as the case may be, at the written request of the Majority Banks) and
the Company and acknowledged by the Administrative Agent or
Documentation Agent, as the case may be, and then any such waiver or
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consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by
all the Banks and the Company and acknowledged by the Administrative
Agent or Documentation Agent, as the case may be, do any of the
following:
(a) increase or extend the Commitment of any Bank or
Swingline Commitment of the Swingline Bank (or reinstate any
Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees
or other amounts due to the Banks (or any of them) hereunder or under
any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below) any
fees or other amounts payable hereunder or under any other Loan
Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Banks or any of them to take any action hereunder; or
(e) amend this Section, or Section 2.14, or any provision
herein providing for consent or other action by all Banks; or
(f) discharge any Restricted Subsidiary, or release any
portion of the Collateral except as otherwise may be provided in the
Collateral Document or except where the consent of the Majority Banks
only is specifically provided for or except with respect to Collateral
sold in compliance with Section 8.02;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Bank in addition to the
Majority Banks or all the Banks, as the case may be, affect the rights
or duties of the Issuing Bank under this Agreement or any L/C-Related
Document relating to any Letter of Credit Issued or to be Issued by
it, (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Bank in addition to the Majority Banks or all
of the Banks, as the case may be, affect the rights or duties of the
Swingline Bank under this Agreement, (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative
Agent in addition to the Majority Banks or all the Banks, as the case
may be, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document, (iv) no amendment, waiver
or consent shall, unless in writing and signed by the Documentation
Agent in addition to the Majority Banks or all the Banks, as the case
may be, affect the rights and duties of the Documentation Agent under
this Agreement or any other Loan Document, and (v) the Fee Letters and
documents evidencing Specified Swap Contracts may be amended, or
rights or privileges thereunder waived, in a writing executed by the
parties thereto.
Section 11.02 Notices.
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(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Company by facsimile
(i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 11.02, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number
specified for notices on Schedule 11.02; or, as directed to the
Company or the Administrative Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be
designated by such party in a written notice to the Company and the
Administrative Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if
delivered, upon delivery; except that notices pursuant to Article II
or X to any Agent shall not be effective until actually received by
such Agent.
(c) Any agreement of the Agents and the Banks herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Agents and the
Banks shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such
notice and the Agents and the Banks shall not have any liability to
the Company or other Person on account of any action taken or not
taken by the Agents or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans
shall not be affected in any way or to any extent by any failure by
the Agents and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agents and the
Banks of a confirmation which is at variance with the terms understood
by the Agents and the Banks to be contained in the telephonic or
facsimile notice.
Section 11.03 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
any Agent or any Bank, 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.
Section 11.04 Costs and Expenses.
The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Agents and each Bank within five (5)
Business Days after demand (subject to subsection 5.01(e)) for all
actual and reasonable costs and expenses incurred by the Agents and
each Bank in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not consummated), this
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Agreement, any Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including actual and
reasonable Attorney Costs incurred by the Agents and any Bank with
respect thereto; and
(b) pay or reimburse the Agents, and each Bank within five
(5) Business Days after demand (subject to subsection 4.01(e)) for all
actual and reasonable costs and expenses (including actual and
reasonable Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate
proceeding); and
(c) pay or reimburse the Agents within five (5) Business
Days after demand (subject to subsection 5.01(e)) for all reasonable
appraisal (including the allocated cost of internal appraisal
services), audit, environmental inspection and review (including the
allocated cost of such internal services), search and filing costs,
fees and expenses, incurred or sustained by the Agents in connection
with the matters referred to under subsections (a) and (b) of this
Section.
Section 11.05 Company Indemnification.
(a) Whether or not the transactions contemplated hereby are
consummated, the Company shall indemnify, defend and hold the
Administrative Agent-Related Persons and Documentation Agent-Related
Persons, and each Bank and each of its respective officers, directors,
employees, counsel, Agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements
(including actual and reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following
repayment of the Loans and termination of all Specified Swap Contracts
and the termination, resignation or replacement of the Administrative
Agent or Documentation Agent or replacement of any Bank) be imposed
on, incurred by or asserted against any such Person in any way
relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person
under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising
out of this Agreement or the Specified Swap Contracts or the Loans or
the use of the proceeds thereof, whether or not any Indemnified Person
is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities to the extent resulting from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this
Section shall survive payment of all other Obligations.
(b) (i) The Company shall indemnify, defend and hold
harmless each Indemnified Person, from and against any and all
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liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements (including
actual and reasonable Attorney Costs and the allocated cost of
internal environmental audit or review services), which may be
incurred by or asserted against such Indemnified Person in connection
with or arising out of any pending or threatened investigation,
litigation or proceeding, or any action taken by any Person, with
respect to any Environmental Claim arising out of or related to any
property subject to a Mortgage in favor of the Administrative Agent or
any Bank; provided that the Company shall have no obligation hereunder
to any Indemnified Person with respect to any of the foregoing items
to the extent such obligation results from such Indemnified Person's
gross negligence or willful misconduct. No action taken by legal
counsel chosen by any Agent or any Bank in defending against any such
investigation, litigation or proceeding or requested remedial, removal
or response action shall vitiate or any way impair the Company's
obligation and duty hereunder to indemnify and hold harmless each
Agent and each Bank.
(ii) In no event shall any site visit, observation, or
testing by any Agent or any Bank (or any contractee of any Agent
or any Bank) be deemed a representation or warranty that
Hazardous Materials are or are not present in, on, or under, the
site, or that there has been or shall be compliance with any
Environmental Law. Neither the Company nor any other Person is
entitled to rely on any site visit, observation, or testing by
any Agent or any Bank. Neither any Agent nor any Bank owes any
duty of care to protect the Company or any other Person against,
or to inform the Company or any other party of, any Hazardous
Materials or any other adverse condition affecting any site or
property. Neither any Agent nor any Bank shall be obligated to
disclose to the Company or any other Person any report or
findings made as a result of, or in connection with, any site
visit, observation, or testing by any Agent or any Bank.
(c) Survival; Defense. The obligations in this Section
shall survive payment of all other Obligations. At the election of
any Indemnified Person, the Company shall defend such Indemnified
Person using legal counsel satisfactory to such Indemnified Person in
such Person's sole discretion, at the sole cost and expense of the
Company. All amounts owing under this Section shall be paid within
thirty (30) days after demand.
Section 11.06 Marshaling; Payments Set Aside.
Neither the Agents nor the Banks shall be under any obligation to
xxxxxxxx any assets in favor of the Company or any other Person or
against or in payment of any or all of the Obligations. To the extent
that the Company makes a payment to the Agents or the Banks, or the
Agents or the Banks exercise their right of set-off, and such payment
or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by such
Agent or such Bank in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment
had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to any Agent upon demand its pro rata share of
any amount so recovered from or repaid by any Agent.
Section 11.07 Successors and Assigns.07 Successors and Assigns.
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The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors
and assigns, except that the Company may not assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent, the Documentation Agent
and each Bank.
Section 11.08 Assignments, Participations, Etc.
(a) Any Bank may, with the written consent of the Company
at all times other than during the existence of an Event of Default
and the Agent, which consents shall not be unreasonably withheld, at
any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company or the Administrative
Agent shall be required in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is an Affiliate of
such Bank) (each an "Assignee") all, or any ratable part of all, of
the Loans, the Commitments and the other rights and obligations of
such Bank hereunder, in a minimum amount of $4,000,000; provided,
however, that (i) the Company and the Administrative Agent may
continue to deal solely and directly with such Bank in connection with
the interest so assigned to an Assignee until (A) written notice of
such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been
given to the Company and the Administrative Agent by such Bank and the
Assignee; (B) such Bank and its Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance in
the form of Exhibit Q ("Assignment and Acceptance") together with any
Note or Notes subject to such assignment and (C) the assignor Bank or
Assignee has paid to the Administrative Agent a processing fee in the
amount of $3,000; and (ii) if the assignor Bank or any of its
Affiliates is a Swap Provider with respect to any Specified Swap
Contract, such Bank shall not assign all of its interest in the Loans
and the Commitments to an Assignee unless such Assignee, or an
Affiliate of such Assignee, shall also assume all obligations of such
assignor Bank or Affiliate with respect to such Specified Swap
Contracts, with the consent of the Company. In connection with any
assignment by First Union, its Swingline Commitment may be in whole or
in part included as part of the assignment transaction, and the
Assignment and Acceptance may be appropriately modified to include an
assignment and delegation of its Swingline Commitment and any
outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that it has received (and provided its
consent with respect to) an executed Assignment and Acceptance and
payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to
the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents.
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(c) Within five Business Days after its receipt of notice
by the Administrative Agent that it has received an executed
Assignment and Acceptance and payment of the processing fee, (and
provided that it consents to such assignment in accordance with
subsection 11.08(a)), the Company shall execute and deliver to the
Administrative Agent, new Notes evidencing such Assignee's assigned
Loans and Commitment and, if the assignor Bank has retained a portion
of its Loans and its Commitment, replacement Notes in the principal
amount of the Loans retained by the assignor Bank (such Notes to be in
exchange for, but not in payment of, the Notes held by such Bank).
Immediately upon each Assignee's making its processing fee payment
under the Assignment and Acceptance, this Agreement shall be deemed to
be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Bank pro
tanto.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of that Bank and
the other interests of that Bank (the "originating Bank") hereunder
and under the other Loan Documents; provided, however, that (i) the
originating Bank's obligations under this Agreement shall remain
unchanged, (ii) the originating Bank shall remain solely responsible
for the performance of such obligations, (iii) the Company and the
Administrative Agent shall continue to deal solely and directly with
the originating Bank in connection with the originating Bank's rights
and obligations under this Agreement and the other Loan Documents, and
(iv) no Bank shall transfer or grant any participating interest under
which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in the first
proviso to Section 11.01. In the case of any such participation, the
Participant shall be entitled to the benefit of Sections 4.01, 4.03
and 11.05 as though it were also a Bank hereunder (but no Participant
shall be entitled to any greater payment under Section 4.01 or 4.03
than the Bank which sold such Participant its participating interest
in the Loans and the Commitments), and shall not have any other rights
under this Agreement, or any of the other Loan Documents, and all
amounts payable by the Company hereunder shall be determined as if
such Bank had not sold such participation; except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have
been declared or shall have become due and payable upon the occurrence
of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement.
(e) Notwithstanding any other provision in this Agreement,
any Bank may at any time create a security interest in, or pledge, all
or any portion of its rights under and interest in this Agreement
(other than Swingline Loans) and the Note held by it in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB or
U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted
under applicable law.
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Section 11.09 Confidentiality.
Each Bank agrees to take and to cause its Affiliates to take
normal and reasonable precautions and exercise due care to maintain
the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any
Subsidiary, or by any Agent on the Company's or such Subsidiary's
behalf, under this Agreement or any other Loan Document, and neither
it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter
existing or contemplated with the Company or any Subsidiary; except to
the extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by the Bank, or
(ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound
by a confidentiality agreement with the Company known to the Bank;
provided, however, that any Bank may disclose such information (A) at
the request or pursuant to any requirement of any Governmental
Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law;
(D) to the extent reasonably required in connection with any
litigation or proceeding to which any Agent, any Bank or their
respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Bank's independent auditors
and other professional advisors; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to
keep such information confidential to the same extent required of the
Banks hereunder; (H) as to any Bank or its Affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Bank or such Affiliate; and (I) to its
Affiliates, provided such Affiliate is bound by the provisions of this
Section 11.09.
Section 11.10 Set-off.
In addition to any rights and remedies of the Banks provided by
law, if an Event of Default exists or the Loans have been accelerated,
each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the
Company to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time
owing by, such Bank to or for the credit or the account of the Company
against any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not any Agent or such Bank shall
have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank
agrees promptly to notify the Company and each Agent after any such
set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-
off and application.
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Section 11.11 Automatic Debits of Fees.
With respect to any commitment fee, arrangement fee, or other
fee, or any other cost or expense (including Attorney Costs) due and
payable to any Agent under the Loan Documents, the Company hereby
irrevocably authorizes First Union to debit any deposit account of the
Company with First Union in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed such fee or
other cost or expense. If there are insufficient funds in such
deposit accounts to cover the amount of the fee or other cost or
expense then due, such debits will be reversed (in whole or in part,
in First Union's sole discretion) and such amount not debited shall be
deemed to be unpaid. No such debit under this Section shall be deemed
a set-off.
Section 11.12 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Administrative Agent in writing of any
changes in the address to which notices to the Bank should be
directed, of addresses of any Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such
other administrative information as the Administrative Agent shall
reasonably request.
Section 11.13 Counterparts.
This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument. Delivery of a
counterpart hereof via facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
Section 11.14 Severability.
The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement
required hereunder.
Section 11.15 No Third Parties Benefitted.
This Agreement is made and entered into for the sole protection
and legal benefit of the Company, the Banks, the Agents and the
Administrative Agent-Related Persons and the Documentation Agent-
Related Persons, and their permitted successors and assigns, and 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.
Section 11.16 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF GEORGIA;
PROVIDED THAT THE AGENTS AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
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(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF GEORGIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT
OF GEORGIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE COMPANY, THE AGENTS AND THE BANKS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE COMPANY, THE AGENTS AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENTS AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY GEORGIA LAW.
(c) Nothing contained in this Section shall override any
contrary provision contained in any Specified Swap Contract.
Section 11.17 Waiver of Jury Trial.
THE COMPANY, THE BANKS AND THE AGENTS EACH WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-
RELATED PERSON OR ANY DOCUMENTATION AGENT-RELATED PERSON, PARTICIPANT
OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE COMPANY, THE BANKS AND THE AGENTS EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT
A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 11.18 Entire Agreement
This Agreement, together with the other Loan Documents, embodies
the entire agreement and understanding among the Company, the Banks,
the Administrative Agent and the Documentation Agent, and supersedes
all prior or contemporaneous agreements and understandings of such
107
Persons, verbal or written, relating to the subject matter hereof and
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in Atlanta, Georgia by their proper
and duly authorized officers as of the day and year first above
written.
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, FSB, as Documentation
Agent and a Bank
By: /s/ Xxxxxx Xxx
Title: VP
FIRST UNION NATIONAL BANK, as
Administrative Agent, Issuing Bank,
Swingline Bank and a Bank
By: /s/ Xxxxxxx X. Xxxxxx
Title: SVP
SCHEDULES
Schedule C-1 Commitments
Schedule 6.05 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.17 Subsidiaries and Minority Interests
Schedule 6.18 Insurance Matters
Schedule 6.26 Material Contracts
Schedule 7.14 Deposit and Investment Accounts
Schedule 8.01 Permitted Liens
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Assignment of Notes
Exhibit B Form of Borrowing Base Certificate
Exhibit C Form of Compliance Certificate
Exhibit D Form of Promissory Note
Exhibit E Form of Notice of Borrowing
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Subsidiary Guaranty
Exhibit J Form of Subsidiary Pledge Agreement
Exhibit K Form of Subsidiary Security Agreement
Exhibit L Form of Landlord's Consent
Exhibit M Form of Credit Card Agreement
Exhibit N Form of Wal-Mart Lease
Exhibit O Form of Sam's Wholesale Club Lease
Exhibit P Form of Lease Agreement with Xxxx Xxxxx, Inc.
Exhibit Q Form of Assignment and Acceptance
