ST&B DRAFT - 10/18/96
PRIMECO INC.
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of October ___, 1996
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$298,500,000
Credit Facility
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THE CHASE MANHATTAN BANK
as Administrative Agent,
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent,
and
CHASE SECURITIES INC.
and
BT SECURITIES CORPORATION,
as Arrangers
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...................................................... 1
1.1 Defined Terms...................................................... 1
1.2 Other Definitional Provisions...................................... 26
SECTION 2. TERM LOANS.......................................................26
2.1 Term Loans......................................................... 26
2.2 Repayment of Term Loans............................................ 27
2.3 Use of Proceeds.................................................... 27
2.4 Procedure for Effective Date....................................... 27
SECTION 3.AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS................................................. 27
3.1 Revolving Credit Commitments....................................... 27
3.2 Commitment Fee..................................................... 28
3.3 Proceeds of Revolving Credit Loans................................. 29
3.4 Swing Line Commitment.............................................. 29
3.5 Issuance of Letters of Credit...................................... 30
3.6 Participating Interests............................................ 31
3.7 Procedure for Opening Letters of Credit............................ 31
3.8 Payments in Respect of Letters of Credit........................... 31
3.9 Letter of Credit Fees.............................................. 32
3.10 Letter of Credit Reserves......................................... 32
3.11 Further Assurances................................................ 33
3.12 Obligations Absolute.............................................. 34
3.13 Assignments....................................................... 34
3.14 Participations.................................................... 34
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS...........................35
4.1 Procedure for Borrowing............................................ 35
4.2 Conversion and Continuation Options................................ 35
4.3 Changes of Commitment Amounts...................................... 36
4.4 Optional and Mandatory Prepayments; Repayments of Term Loans....... 37
4.5 Interest Rates and Payment Dates................................... 40
4.6 Computation of Interest and Fees................................... 40
4.7 Certain Fees....................................................... 41
4.8 Inability to Determine Interest Rate............................... 41
4.9 Pro Rata Treatment and Payments.................................... 41
4.10 Illegality........................................................ 44
4.11 Requirements of Law............................................... 44
4.12 Indemnity......................................................... 47
4.13 Repayment of Loans; Evidence of Debt.............................. 47
4.14 Interest Rate Protection.......................................... 48
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4.15 Replacement of Lenders
SECTION 5. REPRESENTATIONS AND WARRANTIES...................................49
5.1 Financial Condition................................................ 49
5.2 No Change.......................................................... 50
5.3 Corporate Existence; Compliance with Law........................... 50
5.4 Corporate Power; Authorization..................................... 51
5.5 Enforceable Obligations............................................ 51
5.6 No Legal Bar....................................................... 52
5.7 No Material Litigation............................................. 52
5.8 Investment Company Act............................................. 52
5.9 Federal Regulation................................................. 52
5.10 No Default........................................................ 52
5.11 Taxes............................................................. 53
5.12 Subsidiaries...................................................... 53
5.13 Ownership of Property; Liens...................................... 53
5.14 ERISA............................................................. 53
5.15 Collateral Documents.............................................. 54
5.16 Copyrights, Permits, Trademarks and Licenses...................... 55
5.17 Environmental Matters............................................. 55
5.18 Accuracy and Completeness of Information.......................... 56
SECTION 6. CONDITIONS PRECEDENT.............................................56
6.1 Conditions to Initial Loans and Letters of Credit.................. 56
6.2 Conditions to All Loans and Letters of Credit...................... 57
SECTION 7. AFFIRMATIVE COVENANTS............................................58
7.1 Financial Statements............................................... 58
7.2 Certificates; Other Information.................................... 59
7.3 Payment of Obligations............................................. 60
7.4 Conduct of Business and Maintenance of Existence................... 61
7.5 Maintenance of Property; Insurance................................. 61
7.6 Inspection of Property; Books and Records; Discussions............. 61
7.7 Notices............................................................ 62
7.8 Environmental Laws................................................. 63
7.9 After Acquired Real Property; Filing of Mortgages.................. 63
7.10 Notices of Redemption............................................. 64
SECTION 8. NEGATIVE COVENANTS...............................................64
8.1 Indebtedness....................................................... 64
8.2 Limitation on Liens................................................ 65
8.3 Limitation on Contingent Obligations............................... 67
8.4 Prohibition of Fundamental Changes................................. 67
8.5 Prohibition on Sale of Assets...................................... 67
8.6 Limitation on Investments, Loans and Advances...................... 69
8.7 Capital Expenditures............................................... 70
8.8 Consolidated EBITDA................................................ 70
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8.9 Debt Coverage Ratio................................................ 71
8.10 Interest Coverage................................................. 72
8.11 Limitation on Dividends........................................... 73
8.12 Transactions with Affiliates...................................... 74
8.13 Prepayments and Amendments of Subordinated Debt and Equity........ 74
8.14 Limitation on Changes in Fiscal Year.............................. 74
8.15 Limitation on Lines of Business................................... 74
SECTION 9. EVENTS OF DEFAULT................................................74
SECTION 10. THE ADMINISTRATIVE AGENT; THE COLLATERAL
AGENT; THE ISSUING LENDER.......................................... 78
10.1 Appointment....................................................... 78
10.2 Delegation of Duties.............................................. 78
10.3 Exculpatory Provisions............................................ 78
10.4 Reliance by Administrative Agent and the Collateral Agent......... 78
10.5 Notice of Default................................................. 79
10.6 Non-Reliance on Administrative Agent, the Collateral Agent and
Other Lenders .................................................... 79
10.7 Indemnification................................................... 80
10.8 The Administrative Agent and the Collateral Agent in their
Individual Capacities.............................................. 80
10.9 Successor Agent................................................... 80
10.10 Issuing Lender as Issuer of Letters of Credit.................... 81
SECTION 11. MISCELLANEOUS...................................................81
11.1 Amendments and Waivers............................................ 81
11.2 Notices........................................................... 82
11.3 No Waiver; Cumulative Remedies.................................... 83
11.4 Survival of Representations and Warranties........................ 84
11.5 Payment of Expenses and Taxes..................................... 84
11.6 Successors and Assigns; Participations and Assignments............ 85
11.7 Adjustments; Set-off.............................................. 88
11.8 Counterparts...................................................... 89
11.9 Governing Law; No Third Party Rights.............................. 89
11.10 Submission to Jurisdiction; Waivers.............................. 89
11.11 Releases......................................................... 90
11.12 Interest......................................................... 90
11.13 Special Indemnification.......................................... 91
11.14 Permitted Payments and Transactions.............................. 91
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SCHEDULES
Schedule I-A List of Addresses for Notices; Lending Offices; Continuing
Commitment Amounts
Schedule I-B Refinanced Commitment Amounts
Schedule 3.5(a) Existing Letters of Credit
Schedule 5.13 Fee and Leased Properties
Schedule 5.15(b) UCC Filing Offices
Schedule 5.16 Trademarks and Copyrights
Schedule 8.1(a) Indebtedness to Remain Outstanding
Schedule 8.2 Existing Liens
Schedule 8.3(d) Existing Contingent Obligations
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Term Loan Note
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Company Security Agreement
EXHIBIT F Form of Holdings Guarantee
EXHIBIT G Form of Holdings Pledge Agreement
EXHIBIT H Form of L/C Participation Certificate
EXHIBIT I Form of Mortgage
EXHIBIT J Form of Swing Line Loan Participation Certificate
EXHIBIT K-1 Form of Opinion of Xxxxxx, Xxxx & Xxxxxxxx in Existing
Credit Agreement
EXHIBIT K-2 Form of Opinion of Xxxxxx, Xxxx & Xxxxxxxx
EXHIBIT L Form of Subsection 4.11(d)(2) Certificate
EXHIBIT M-1 Form of Company Closing Certificate
EXHIBIT M-2 Form of Holdings Closing Certificate
EXHIBIT N Form of Borrowing Base Certificate
EXHIBIT O Form of Warehouseman Notice
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October ___, 1996,
among PRIMECO INC., a Texas corporation (the "COMPANY"), the several lenders
from time to time parties hereto (the "LENDERS"), THE CHASE MANHATTAN BANK, a
New York banking corporation, as administrative agent for the Lenders (in such
capacity, the "ADMINISTRATIVE AGENT") and THE CIT GROUP/BUSINESS CREDIT, INC., a
New York corporation, as collateral agent for the Lenders (the "COLLATERAL
AGENT").
W I T N E S S E T H :
WHEREAS, the Company, the lenders parties thereto on the date hereof
(the "EXISTING LENDERS") and the Administrative Agent are parties to the Credit
Agreement, dated as of December 1, 1994 (as amended, supplemented or otherwise
modified to the date hereof, the "EXISTING CREDIT AGREEMENT"); and
WHEREAS, the Company has requested the Lenders parties hereto on the
date hereof and the Administrative Agent to amend and restate the Existing
Credit Agreement as of the Effective Date (as herein defined) to provide for,
INTER ALIA, (i) the reallocation of the Commitments (as herein defined), (ii)
extending the tenor of the term loans to December 31, 2002, (iii) rescheduling
the amortization of the term loans, (iv) extending to that date which is five
years from the Effective Date (as herein defined) the revolving credit
commitments under the Existing Credit Agreement and (v) reducing the pricing;
and
WHEREAS, the Lenders and the Administrative Agent are so willing to
amend and restate the Existing Credit Agreement as of the Effective Date, but
only on, and subject to, the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company, the Lenders, the Administrative Agent
and the Collateral Agent hereby amend and restate the Existing Credit Agreement,
effective as of the Effective Date but not before, as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the terms defined in
the caption or in the "Whereas" clauses hereto shall have the meanings set forth
therein, and the following terms have the following meanings:
"ACCOUNT": as defined in the definition of Eligible Accounts
Receivable.
"ADJUSTMENT DATE": (a) the second Business Day following receipt by
the Administrative Agent of both (i) the financial statements required to
be delivered pursuant to subsections 7.1(a) or 7.1(b) for the most recently
completed fiscal period and (ii) the compliance certificate required
pursuant to subsection 7.2(b) with respect to such financial statements or
(b) if such compliance certificate and financial statements have not been
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delivered in a timely manner, the latest date upon which the compliance
certificate required to be delivered pursuant to subsection 7.2(b) for the
most recently completed fiscal period was due; PROVIDED, HOWEVER, that in
the event that the Adjustment Date is determined in accordance with the
provisions of clause (b) of this definition, then the date which is two
Business Days following the date of receipt of the financial statements and
compliance certificate referenced in clause (a) of this definition also
shall be deemed to constitute an "Adjustment Date".
"AFFILIATE": of any Person (a) any Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is
under common control with such Person, or (b) any Person who is a director
or officer (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in clause (a) above. For purposes of this
definition, control of a Person shall mean the power, direct or indirect
(i) to vote 25% or more of the securities having ordinary voting power for
the election of directors of such Person, whether by ownership of
securities, contract, proxy or otherwise, or (ii) to direct or cause the
direction of the management and policies of such Person, whether by
ownership of securities, contract, proxy or otherwise.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
modified from time to time.
"ALTERNATE BASE RATE": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "PRIME RATE" shall mean the rate
of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by the Administrative Agent in connection with extensions
of credit to debtors); "BASE CD RATE" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "THREE-MONTH SECONDARY CD RATE"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board of Governors of the Federal Reserve System (together with any
successor, the "BOARD") through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative
Agent from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and "FEDERAL FUNDS EFFECTIVE RATE"
shall mean, for any day, 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 on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if
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such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day
of such change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"ALTERNATE BASE RATE LENDING OFFICE": as to each Lender, the office
of such Lender located within the United States which shall be making or
maintaining Alternate Base Rate Loans.
"ALTERNATE BASE RATE LOANS": Loans at such time as they are made
and/or being maintained at a rate of interest based upon the Alternate Base
Rate.
"APPLICABLE MARGIN": for Term Loans, Revolving Credit Loans and Swing
Line Loans of the Type set forth below, if the applicable Debt Coverage
Ratio is:
(i) greater than 3.75, the rate per annum set forth under the
relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 1.50% 2.75%
Revolving Credit Loans: 1.00% 2.25%
Swing Line Loans: 1.00% N/A
(ii) less than or equal to 3.75 but greater than 3.25, the rate
per annum set forth under the relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 1.25% 2.50%
Revolving Credit Loans: .75% 2.00%
Swing Line Loans: .75% N/A
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(iii) less than or equal to 3.25 but greater than 2.75, the rate
per annum set forth under the relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 1.00% 2.25%
Revolving Credit Loans: 0.50% 1.75%
Swing Line Loans: 0.50% N/A
(iv) less than or equal to 2.75 but greater than 2.25, the rate
per annum set forth under the relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 0.75% 2.00%
Revolving Credit Loans: 0.25% 1.50%
Swing Line Loans: 0.25% N/A
(v) less than or equal to 2.25 but greater than 1.75, the rate
per annum set forth under the relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 0.50% 1.75%
Revolving Credit Loans: 0.00% 1.25%
Swing Line Loans: 0.00% N/A
(vi) less than or equal to 1.75, the rate per annum set forth
under the relevant column heading below:
ABR LOANS EURODOLLAR LOANS
--------- ----------------
Term Loans: 0.50% 1.75%
Revolving Credit Loans: 0.00% 1.00%
Swing Line Loans: 0.00% N/A
The Applicable Margin for the period commencing with each Adjustment Date
and ending on the next succeeding Adjustment Date, shall be determined by
reference to the Debt Coverage Ratio of the Company set forth on the
certificate most recently required to be delivered to the Lenders pursuant
to subsection 7.2(b); PROVIDED, that, (a) until the first Adjustment Date,
the Applicable Margin shall be as set forth in clause (v) of this
definition and (b) if for any reason the certificate required by subsection
7.2(b) is not timely delivered to the Lenders, the Debt Coverage Ratio
shall be (i) during the period from the date upon which such certificate
was required to be delivered until the date upon which it actually is
delivered, the Applicable Margin in effect immediately prior to the date
such financial statements were due, and (ii) if such certificate, when
actually
5
delivered, would have required an increase in the Applicable Margin over
the Applicable Margin in effect immediately prior to the date such
certificate was due, the Company shall, within ten days following the
delivery of such certificate pay to the Lenders and the Administrative
Agent any additional amounts of interest or fees which would have been
payable on any previous Interest Payment Date had such higher Applicable
Margin been in effect from the date such certificate was required to be
delivered; and PROVIDED, FURTHER, that any change in the Applicable Margin
as a result of a change in the Debt Coverage Ratio shall apply to all Loans
for each day during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of
the next such change in Applicable Margin.
"ASSET SALE": any sale, sale-leaseback, or other disposition by the
Company or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of the Company, other than (a) the
redemption of Class D Preferred Shares of 0000-000 Xxxxxx Inc., a
corporation organized under the laws of Quebec, held by the Company for an
aggregate redemption price of Canadian $1,000,000 and (b) sales and
dispositions permitted by subsections 8.5(a), (b), (c), (e), (f) and (g).
"ASSIGNEE": as defined in subsection 11.6(c).
"ASSIGNMENT AND ACCEPTANCE": an assignment and acceptance
substantially in the form of Exhibit D.
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Lender, at a
particular time, an amount equal to (a) the amount of such Lender's
Revolving Credit Commitment at such time, LESS (b) the sum of (i) the
aggregate unpaid principal amount at such time of all Revolving Credit
Loans made by such Lender pursuant to subsection 3.1, (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate unpaid principal
amount at such time of all Swing Line Loans, PROVIDED that for purposes of
calculating the Revolving Credit Commitments pursuant to subsection 3.2 the
amount referred to in this clause (ii) shall be zero, (iii) such Lender's
L/C Participating Interest in the aggregate amount available to be drawn at
such time under all outstanding Letters of Credit issued by the Issuing
Lender and (iv) such Lender's Revolving Credit Commitment Percentage of the
aggregate outstanding amount of L/C Obligations; collectively, as to all
the Lenders, the "AVAILABLE REVOLVING CREDIT COMMITMENTS".
"BANKRUPTCY CODE": Title I of the Bankruptcy Reform Act of 1978, as
amended and codified at Title 11 of the United States Code.
"BOARD": as defined in the definition of "Alternate Base Rate".
"BORROWING BASE": as of any date to which a Borrowing Base
Certificate relates, the sum of (a) 80% of Type I Eligible Rental Fleet
Equipment, (b) 70% of Type II Eligible Rental Fleet Equipment, (c) 60% of
Type III Eligible Rental Fleet Equipment, (d) 50% of Type IV Eligible
Rental Fleet Equipment, (e) 65% of Eligible Inventory, (f) 80% of Eligible
Accounts Receivable, (g) 80% of Eligible New Equipment for Sale and (h) 50%
of Eligible Fixed Assets.
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"BORROWING BASE CERTIFICATE": as defined in subsection 7.2(g).
"BORROWING BASE DEFICIENCY": a condition wherein the sum of (a) the
aggregate principal amount of all Revolving Credit Loans and Swing Line
Loans outstanding at such time, (b) the aggregate unexpired and undrawn
face amount of all Letters of Credit outstanding at such time, (c) the
aggregate amount of L/C Obligations outstanding at such time and (d) at any
time after June 30, 2000, the aggregate principal amount of all Term Loans
outstanding exceeds the Borrowing Base as set forth on the most recent
Borrowing Base Certificate delivered by the Company.
"BORROWING DATE": any Business Day specified in a notice pursuant to
(a) subsection 3.4 or 4.1 as a date on which the Company requests the Swing
Line Lender or the Lenders to make Loans hereunder or (b) subsection 3.5 as
a date on which the Company requests the Issuing Lender to issue a Letter
of Credit hereunder.
"BTCO": Bankers Trust Company, a New York banking corporation, and
its successors.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"CAPITAL EXPENDITURES": for any period, all amounts which would, in
accordance with GAAP, be set forth as capital expenditures (exclusive of
any amount attributable to capitalized interest) on the consolidated
statement of cash flows or other similar statement of the Company and its
Subsidiaries for such period and shall in any event include expenditures to
acquire all or a portion of the Capital Stock or assets of any Person but
shall exclude any expenditures made with the proceeds of condemnation or
eminent domain proceedings affecting real property or with insurance
proceeds; PROVIDED that any Capital Expenditures financed with the proceeds
of any Indebtedness permitted hereunder (other than Indebtedness incurred
hereunder) shall be deemed to be a Capital Expenditure only in the period
in which, and by the amount which, any principal of such Indebtedness is
repaid.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS": (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than six months from
the date of acquisition, (b) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any Lender or with any
domestic commercial bank having capital and surplus in excess of
$300,000,000, (c) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (a) and
(b) entered into with any financial institution meeting the qualifications
specified in clause (b) above, and (d) commercial paper issued by any
Lender or the
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parent corporation of any Lender, and commercial paper rated A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case
maturing within six months after the date of acquisition.
"C/D ASSESSMENT RATE": for any day the net annual assessment rate
(rounded upwards, if necessary, to the next 1/100 of 1%) determined by the
Administrative Agent to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of the Administrative Agent in the
United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any Base CD Rate,
that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity of
30 days or more.
"CHANGE IN LAW": with respect to any Lender, the adoption of any law,
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or any change therein or in the interpretation or application
thereof by any Governmental Authority having jurisdiction over such Lender,
in each case after the Effective Date.
"CHANGE OF CONTROL": shall be considered to have occurred if any
Person (other than INVESTCORP S.A., any of its Affiliates or Subsidiaries,
any Person that is a member of the senior management of the Company or
Holdings, any entity the majority of the equity ownership interests of
which is owned by such senior management of the Company or Holdings or any
Person acting in the capacity of an underwriter), whether singly or in
concert with one or more Persons, shall, directly or indirectly, have
acquired, or acquire the power to vote or direct the voting of, 25% or
more, on a fully diluted basis, of the outstanding common stock of the
Company or of the common stock of Holdings.
"CHASE": The Chase Manhattan Bank, a New York banking corporation,
and its successors.
"CLOSING DATE": the date on which the Lenders made their initial
Loans or the Issuing Lender issued the initial Letter of Credit.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COMMERCIAL L/C": a commercial documentary Letter of Credit under
which the Issuing Lender agrees to make payments in Dollars for the account
of the Company, on behalf of the Company or a Subsidiary thereof, in
respect of obligations of the Company or such Subsidiary in connection with
the purchase of goods or services in the ordinary course of business.
"COMMITMENT": as to any Lender at any time, such Lender's Swing Line
Commitment, Term Loan Commitment and Revolving Credit Commitment;
collectively, as to all the Lenders, the "COMMITMENTS".
8
"COMMITMENT PERCENTAGE": as to any Lender at any time, its Term Loan
Commitment Percentage or its Revolving Credit Commitment Percentage, as the
context may require.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 414(b) or (c) of the Code.
"COMPANY SECURITY AGREEMENT": the Company Security Agreement,
substantially in the form of Exhibit E, to be made by the Company in favor
of the Collateral Agent for the ratable benefit of the Lenders, as the same
may be amended, modified or supplemented from time to time.
"CONSOLIDATED CURRENT ASSETS": at a particular date, all amounts
which would, in conformity with GAAP, be included under current assets on a
consolidated balance sheet of the Company and its Subsidiaries as at such
date.
"CONSOLIDATED CURRENT LIABILITIES": at a particular date, all amounts
which would, in conformity with GAAP, be included under current liabilities
on a consolidated balance sheet of the Company and its Subsidiaries as at
such date, excluding the current portion of long-term debt and the entire
outstanding principal amount of the Revolving Credit Loans.
"CONSOLIDATED EBITDA": for any period, the consolidated net income of
the Company and its Subsidiaries for such period, plus, without duplication
and to the extent reflected as a charge in the statement of such
consolidated net income for such period, the sum of (a) taxes measured by
income, (b) interest expense, amortization or writeoff of debt discount,
debt issuance, warrant and other equity issuance costs and commissions,
discounts, redemption premium and other fees and charges associated with
the Loans, Standby L/Cs, the Subordinated Debt or with the acquisition or
repayment of any debt securities of the Company permitted hereunder, and
net costs associated with Interest Rate Agreements to which the Company is
a party in respect of the Loans, (c) costs of surety bonds, (d)
depreciation and amortization expense, (e) amortization of inventory
write-up under APB 16, amortization of intangibles (including, but not
limited to, goodwill and costs of interest-rate caps and the cost of
non-competition agreements) and organization costs, (f) non-cash
amortization of Financing Leases, (g) franchise taxes, (h) management fees
paid as contemplated by subsection 11.14(a) and (i) any other write-downs,
write-offs, minority interests and other non-cash charges (including all
extraordinary non-cash charges) in determining such consolidated net income
for such period.
"CONSOLIDATED FUNDED INDEBTEDNESS": at a particular date, all
Indebtedness (other than Indebtedness described in clauses (b), (c), (d) or
(e) of the definition of "Indebtedness" included in this subsection 1.1) of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP at such date.
"CONTINGENT OBLIGATION": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, dividends
or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner,
9
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent (a) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (c) 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 (d) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; PROVIDED, HOWEVER, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount (based
on the maximum reasonably anticipated net liability in respect thereof as
determined by the Company in good faith) of the primary obligation or
portion thereof in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated net
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by the Company in good faith.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of the
property owned by it is bound.
"CREDIT DOCUMENTS": the collective reference to this Agreement, the
Notes, the Pledge Agreements, the Security Agreements, the Guarantees and
the Mortgages.
"CREDIT PARTIES": the collective reference to Holdings, the Company
and each Subsidiary of the Company from time to time party to a Guarantee.
"DEBT COVERAGE RATIO": on the last day of any fiscal quarter of the
Company, the ratio of (a) Consolidated Funded Indebtedness as of the last
day of such fiscal quarter to (b) Consolidated EBITDA for the period of
four fiscal quarters ending on such day.
"DEFAULT": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY": any Subsidiary of the Company other than a
Foreign Subsidiary.
"EFFECTIVE DATE": as defined in subsection 6.1.
"ELIGIBLE ACCOUNTS RECEIVABLE": the amount equal to the gross
outstanding balance, less all finance charges, late fees, other fees that
are unearned and unpaid and extended warranty charges, of accounts
receivable of the Company arising out of sales or rentals of goods,
equipment or services made by the Company in the ordinary course of
business ("ACCOUNTS") (determined by reference to the most recent Borrowing
Base
10
Certificate provided to the Collateral Agent pursuant to Section 7.2(g)),
less such reserves as the Administrative Agent, the Collateral Agent and
the Managing Agents in their sole discretion, shall jointly deem
appropriate. Without in any way limiting the discretion of the
Administrative Agent, the Collateral Agent and the Managing Agents to deem
an Account eligible or ineligible, the Administrative Agent, the Collateral
Agent and the Managing Agents do not currently intend to treat an Account
as eligible if:
(a) any representation or warranty contained in this Agreement
or in any other Credit Documents applicable either to Accounts in
general or to any such specific Account has been breached with respect
to such Account;
(b) 50% or more of the outstanding Accounts from the Account
debtor that constituted Eligible Accounts Receivable at the time they
arose have become, or have been jointly determined by the
Administrative Agent, the Collateral Agent and the Managing Agents to
be, ineligible;
(c) the Account debtor has filed a petition for relief under the
Bankruptcy Code (or similar action under any successor law), made a
general assignment for the benefit of creditors, had filed against it
any petition or other application for relief under the Bankruptcy Code
(or similar action under any successor law), failed, suspended
business operations, become insolvent, called a meeting of its
creditors for the purpose of obtaining any financial concession or
accommodation, or had or suffered a receiver or a trustee to be
appointed for all or a significant portion of its assets or affairs;
(d) such Account has remained unpaid for a period exceeding 90
days from invoice date or the Company or any of its Subsidiaries has
reason to believe such Account to be uncollectible;
(e) the sale or rental represented by such Account is to an
Account debtor outside the United States (except to the extent payment
thereof is supported by a letter of credit in form and substance and
issued by a bank, satisfactory to the Administrative Agent, the
Collateral Agent and the Managing Agents jointly);
(f) the Account debtor is an Affiliate, Subsidiary, director,
officer or employee of the Company or any of its Subsidiaries;
(g) the Account debtor is a supplier or creditor of the Company
or any of its Subsidiaries;
(h) such Account is denominated in other than Dollars or payable
outside the United States;
(i) the sale represented by such Account is on a xxxx-and-hold,
undelivered sale, guaranteed sale, sale or return, consignment, or
sale on approval basis;
11
(j) the Administrative Agent, the Collateral Agent and the
Managing Agents jointly determine, in their sole discretion, that the
collection of such Account is insecure or that such Account may not be
paid;
(k) such Account is subject to any material claim or dispute by
the Account debtor;
(l) such Account does not constitute a valid and binding
obligation of the Account debtor to pay the balance thereof in
accordance with its terms or is subject to any defense, set-off,
recoupment or counterclaim;
(m) such Account is not assignable or a first priority security
interest in such Account in favor of the Collateral Agent for the
benefit of the Lenders has not been obtained or a first priority
security interest in favor of the Collateral Agent for the benefit of
the Lenders cannot be fully perfected by possession or by filing
Uniform Commercial Code financing statements against the Company (as
any such first priority security interest may be affected by the
existence of Permitted Liens);
(n) such Account is subject to any Lien whatsoever, other than
Liens permitted pursuant to subsections 8.2(a) and (f);
(o) the Company or such Subsidiary, in order to be entitled to
collect such Account, is required to perform any additional service
for, or perform or incur any additional obligation to, the Account
debtor; or
(p) such Account is an account of the United States government
or any agency or instrumentality thereof, and the Collateral Agent
does not perfect a first priority security interest in such Account.
The Administrative Agent, the Collateral Agent and the Managing Agents
shall have discretion to classify any account into any of the
foregoing categories or such other categories as the Administrative
Agent, the Collateral Agent and the Managing Agents, in their sole
discretion, jointly deem appropriate in determining the eligibility of
such Account.
"ELIGIBLE FIXED ASSETS": at any time, (a) the appraised value of the
real property owned by the Company as set forth in the appraisal delivered
pursuant to subsection 6.1(p)(i) of the Existing Credit Agreement, PLUS (b)
the appraised value of the personal property of the Company and its
Subsidiaries other than the Rental Fleet Equipment (such equipment, the
"NON-RENTAL FLEET EQUIPMENT") as determined by Manufacturer's Appraisers in
connection with the appraisal delivered pursuant to subsection 6.1(p)(ii)
of the Existing Credit Agreement PLUS (c) the aggregate amount of Capital
Expenditures made since the Closing Date with respect to real property and
Non-Rental Fleet Equipment (net of any proceeds of real property and
Non-Rental Fleet Equipment sold by the Company and its Subsidiaries or
otherwise disposed of, in any case, subsequent to the Closing Date) MINUS
(d) the aggregate amount of accumulated depreciation with respect to real
property and Non-Rental Fleet Equipment owned by the Company and its
12
Subsidiaries since the Closing Date. Without in any way limiting the
discretion of the Administrative Agent, the Collateral Agent and the
Managing Agent to deem any fixed asset ineligible, the Administrative
Agent, the Collateral Agent and the Managing Agents do not currently intend
to treat any fixed asset as eligible if a first priority security interest
in such fixed asset in favor of the Collateral Agent for the benefit of the
Lenders has not been obtained or a first priority security interest in such
fixed asset in favor of the Collateral Agent for the benefit of the Lenders
cannot be perfected by possession or by filing a Mortgage or Uniform
Commercial Code financing statements against the Company or by notation of
the Collateral Agent's security interest on a certificate of title in
respect of such fixed asset in accordance with the law of the relevant
jurisdiction (as any such first priority security interest may be affected
by the existence of Permitted Liens).
"ELIGIBLE INVENTORY": the amount equal to the gross amount of the
Company's inventory (other than Eligible New Equipment for Sale and
Eligible Rental Fleet Equipment) that conforms to the representations and
warranties contained in this Agreement and the other Credit Documents and
which at all times continues to be jointly acceptable to the Administrative
Agent, the Collateral Agent and the Managing Agents in the exercise of
their reasonable business judgment, less such reserves as the
Administrative Agent, the Collateral Agent and the Managing Agents, in
their sole discretion, shall deem appropriate. Without in any way limiting
the discretion of the Administrative Agent, the Collateral Agent and the
Managing Agents to deem inventory ineligible, the Administrative Agent, the
Collateral Agent and the Managing Agents do not currently intend to treat
inventory as eligible if (a) such inventory is not present in the United
States of America, (b) such inventory is to be returned to the Company's
suppliers, (c) such inventory is in transit to third parties (other than
the Company's agents or warehouses), (d) such inventory is owned by the
Company and consigned to other Persons or is owned by other Persons and
consigned to the Company or (e) a first perfected security interest in such
inventory in favor of the Collateral Agent for the benefit of the Lenders
has not been obtained or a first priority security interest in such
inventory in favor of the Collateral Agent for the benefit of the Lenders
cannot be perfected by possession or by filing Uniform Commercial Code
financing statements against the Company (as any such first priority
security interest may be affected by the existence of Permitted Liens).
"ELIGIBLE NEW EQUIPMENT FOR SALE": the amount equal to the gross
amount of all new equipment held for sale by the Company that conforms to
the representations and warranties contained in this Agreement and the
other Credit Documents and which at all times continues to be jointly
acceptable to the Administrative Agent, the Collateral Agent and the
Managing Agents in the exercise of their reasonable business judgment, less
such reserves as the Administrative Agent, the Collateral Agent and the
Managing Agents, in their sole discretion, shall deem appropriate. Without
in any way limiting the discretion of the Administrative Agent, the
Collateral Agent and the Managing Agents to deem an item of new equipment
eligible or ineligible, the Administrative Agent, the Collateral Agent and
the Managing Agents do not currently intend to treat any item of new
equipment as eligible if (a) such new equipment is not present in the
United States of America, (b) such new equipment is to be returned to the
Company's suppliers, (c) such new equipment is in transit to third parties
(other than the Company's agents or
13
warehouses), (d) such new equipment is owned by the Company and consigned to
other Persons or is owned by other Persons and consigned to the Company or (e) a
first perfected security interest in such new equipment in favor of the
Collateral Agent for the benefit of the Lenders has not been obtained or a first
priority security interest in such new equipment in favor of the Collateral
Agent for the benefit of the Lenders cannot be perfected by possession or by
filing Uniform Commercial Code financing statements against the Company (as any
such first priority security interest may be affected by the existence of
Permitted Liens).
"ELIGIBLE RENTAL FLEET EQUIPMENT": the amount equal to the sum of the
purchase prices paid by the Company with respect to all equipment held for
rental by the Company in the ordinary course of business and used rental
equipment held for sale by the Company in the ordinary course of business
(collectively, "RENTAL FLEET EQUIPMENT") (determined by reference to the
most recent Borrowing Base Certificate provided to the Collateral Agent
pursuant to subsection 7.2(g)), less such reserves as the Administrative
Agent, the Collateral Agent and the Managing Agents, in their sole
discretion, shall jointly deem appropriate. Without in any way limiting
the discretion of the Administrative Agent, the Collateral Agent and the
Managing Agents to deem an item of Rental Fleet Equipment eligible or
ineligible, the Administrative Agent, the Collateral Agent and the Managing
Agents do not currently intend to treat any item of Rental Fleet Equipment
as eligible if:
(a) any representation or warranty contained in this Agreement
or in any other Credit Document applicable to either Rental Fleet
Equipment in general or to any such specific item of Rental Fleet
Equipment has been breached with respect to such item of Rental Fleet
Equipment;
(b) such item of Rental Fleet Equipment is owned by the Company
and consigned to other Persons or is owned by other Persons and
consigned to the Company;
(c) such item of Rental Fleet Equipment is returned, defective
or unmerchantable;
(d) (i) such item of Rental Fleet Equipment is not assignable
or (ii) a first priority security interest in such item of Rental
Fleet Equipment in favor of the Collateral Agent for the benefit of
the Lenders has not been obtained (or, in respect of any item of
Rental Fleet Equipment held by the Company on the Closing Date in
respect of which a first priority security interest is obtained by
notation of a security interest on a certificate of title, all
applications for certificates of title indicating the Collateral
Agent's first priority security interest in such item and any other
necessary documentation shall not have been filed in each office in
each jurisdiction which the Collateral Agent shall deem advisable to
perfect its security interest in such item on or prior to the sixtieth
day after the Closing Date) or (iii) a first priority security interest
in such item of Rental Fleet Equipment in favor of the Collateral Agent
for the benefit of the Lenders cannot be perfected by possession or by
filing Uniform Commercial Code financing statements against the Company
or by notation of the Collateral Agent's security
14
interest on a certificate of title in respect of such item of Rental
Fleet Equipment in accordance with the law of the relevant
jurisdiction (as any such first priority security interest may be
affected by the existence of Permitted Liens); or
(e) such item of Rental Fleet Equipment is subject to any Lien
whatsoever (including, without limitation, all Rental Fleet Equipment
then located at a Public Warehouse with respect to which (i) the
Collateral Agent has not received a duly executed Warehousemen Notice
which is then in full force and effect or (ii) the Company is in
arrears on its rental and other payments), other than (without
prejudice to the reductions made pursuant to paragraph (d) above),
Liens permitted pursuant to Sections 8.2(a), (b) and (f).
The Administrative Agent, the Collateral Agent and the Managing Agents
shall have joint discretion to classify any item of Rental Fleet Equipment
into any of the foregoing categories or such other categories as the
Administrative Agent, the Collateral Agent and the Managing Agents, in
their sole discretion, jointly deem appropriate in determining the
eligibility of such item of Rental Fleet Equipment.
"ENVIRONMENTAL AUDIT": The Environmental Audit (referred to in
subsection 6.3(e)(ii) of the Stock Purchase Agreement) together with the
addenda thereto dated November 16, 1994, as prepared by ViroGroup Inc. and
previously delivered to the Administrative Agent pursuant to subsection
6.1(g) of the Existing Credit Agreement and, with respect to Vibroplant
U.S., Inc. and any assets acquired in the Vibroplant Acquisition, any
environmental report delivered to the Administrative Agent prior to the
consummation of the Vibroplant Acquisition; and environmental reports
obtained in connection with the acquisition of substantially all of the
assets of Alpine Equipment Rentals & Supply Company, Inc.
"ENVIRONMENTAL LAWS": any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority or requirements of law
(including court-ordered requirements of common law) regulating or imposing
liability or standards of conduct concerning, environmental or public
health protection matters, including, without limitation, Hazardous
Materials, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": as defined in the definition of
Eurodollar Rate.
"EURODOLLAR LENDING OFFICE": as to any Lender the office of such
Lender which shall be making or maintaining Eurodollar Loans.
"EURODOLLAR LOANS": Loans at such time as they are made and/or being
maintained at a rate of interest based upon a Eurodollar Rate.
15
"EURODOLLAR RATE": with respect to each day during any Interest
Period for any Eurodollar Loan, the rate per annum equal to the quotient of
(a) the average (rounded upwards to the nearest whole multiple of one
sixteenth of one percent) of the respective rates notified to the
Administrative Agent by the Reference Lenders as the rate at which each of
their Eurodollar Lending Offices is offered Dollar deposits two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the foreign currency and exchange operations of
such Eurodollar Lending Office are customarily conducted at or about 10:00
A.M., New York City time, for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount comparable
to the amount of the Eurodollar Loan of such Reference Lenders to be
outstanding during such Interest Period, divided by (b) a number equal to
1.00 minus the aggregate (without duplication) of the rates (expressed as a
decimal) of reserve requirements current on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto), as now and from time to time hereafter
in effect, dealing with reserve requirements prescribed for Eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation
D of such Board) maintained by a member bank of such System (such rates of
reserve requirements being referred to herein as "EUROCURRENCY RESERVE
REQUIREMENTS") (such Eurodollar Rate to be rounded upwards, if necessary,
to the next higher 1/100 of one percent).
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"EXCESS CASH FLOW": for any fiscal year of the Company, commencing
with the fiscal year ending on December 31, 1996, the excess of (a) the
sum, without duplication, of (i) Consolidated EBITDA for such fiscal year
PLUS (ii) the book value of all property sold (other than pursuant to
eminent domain or condemnation proceedings) by the Company and its
Subsidiaries during such fiscal year over (b) the sum, without duplication,
of (i) the aggregate amount actually paid by the Company and its
Subsidiaries in cash during such fiscal year on account of capital
expenditures (other than capital expenditures made with the proceeds of
eminent domain or condemnation proceedings to the extent such proceeds are
not included in the determination of EBITDA for such fiscal year), (ii) the
aggregate amount of payments of principal in respect of any Indebtedness
during such fiscal year (other than any such payments of principal (x) from
the Net Proceeds of the IPO, (y) pursuant to subsection 4.4(b)(iii) or (z)
in respect of any revolving credit facility to the extent that there is not
an equivalent reduction in such facility), (iii) increases in working
capital (calculated as Consolidated Current Assets at the end of such
fiscal year MINUS Consolidated Current Liabilities as at the end of such
fiscal year) of the Company and its Subsidiaries for such fiscal year
(excluding any increase in cash or Cash Equivalents above an increase
deemed in good faith by the Company to be necessary or desirable for the
operation of the business of the Company and its Subsidiaries), (iv) cash
interest expense (including fees paid in connection with Letters of Credit
and surety bonds) of the Company, (v) the amount of dividends actually paid
in cash by the Company to Holdings during such fiscal year as permitted by
subsection 8.11(c)(iv) and, to the extent not deducted from revenues in
determining consolidated net income of the Company and its Subsidiaries for
such fiscal year, by subsection 8.11(c)(i) and (ii), (vi) the amount of
taxes actually paid in cash by the
16
Company and its Subsidiaries for such fiscal year either during such fiscal year
or within a normal payment period thereof, (vii) the amount of cash actually
paid to repurchase Capital Stock of Holdings pursuant to subsection 8.11(c)(iii)
and (viii) to the extent added to consolidated net income of the Company and its
Subsidiaries in calculating Consolidated EBITDA for such fiscal year, the net
cost of Interest Rate Agreements, franchise taxes and management fees.
"FEE PROPERTY": as defined in subsection 5.13.
"FINANCING LEASE": (a) any lease of property, real or personal, the
obligations under which are capitalized on a consolidated balance sheet of
the Company and its consolidated Subsidiaries and (b) any other such lease
to the extent that the then present value of any rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance
sheet of the lessee.
"FOREIGN SUBSIDIARY": any Subsidiary of the Company which is not
organized under the laws of the United States of America or any state
thereof or the District of Columbia.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEES": the collective reference to the Holdings Guarantee and
any guarantee which may from time to time be executed and delivered by a
Subsidiary of the Company pursuant to subsection 8.6(b).
"HAZARDOUS MATERIALS": any hazardous materials, hazardous wastes,
hazardous pesticides, hazardous or toxic substances, defined, listed,
classified or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, petroleum, any other petroleum
products (including gasoline, crude oil or any fraction thereof)
polychlorinated biphenyls and urea-formaldehyde insulation.
"HEDGE LENDER": (a) Salomon Brothers Holding Company Inc ("SALOMON"),
as party to that certain Interest Rate and Currency Exchange Agreement,
dated as of March 7, 1990 (the "SALOMON INTEREST RATE AGREEMENT"), between
the Company and Salomon, as supplemented by the schedule thereto dated as
of March 7, 1990, the Confirmation of the Swap Transaction dated March 7,
1990 between the Company and Salomon and the letter agreement dated as of
December 1, 1994 between the Company and Salomon and (b) any successor or
assignee of Salomon reasonably acceptable to the Administrative Agent in
respect of the Salomon Interest Rate Agreement.
"HOLDINGS": Prime Service, Inc., a Delaware corporation.
17
"HOLDINGS GUARANTEE": the Holdings Guarantee, substantially in the
form of Exhibit F, to be made by Holdings in favor of the Collateral Agent
for the ratable benefit of the Lenders, as the same may be amended,
modified or supplemented from time to time.
"HOLDINGS PLEDGE AGREEMENT": the Pledge Agreement, substantially in
the form of Exhibit G, to be made by Holdings in favor of the Collateral
Agent for the ratable benefit of the Lenders, as the same may be amended,
modified or supplemented from time to time.
"INDEBTEDNESS": of a Person, at a particular date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, (b) the undrawn face amount of all letters
of credit issued for the account of such Person and, without duplication,
all drafts drawn thereunder and unpaid reimbursement obligations with
respect thereto, (c) all liabilities (other than Lease Obligations) secured
by any Lien on any property owned by such Person, even though such Person
has not assumed or become liable for the payment thereof, (d) Financing
Leases and (e) all indebtedness of such Person arising under acceptance
facilities; but excluding (i) trade and other accounts payable and accrued
expenses payable in the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for more than 90 days, as
to which a dispute exists and adequate reserves in conformity with GAAP
have been established on the books of such Person and (ii) letters of
credit supporting the purchase of goods in the ordinary course of business
and expiring no more than six months from the date of issuance.
"INSOLVENCY": with respect to a Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"INSTALLMENT PAYMENT DATE": as defined in subsection 4.4(c).
"INTEREST COVERAGE RATIO": on the last day of any fiscal quarter of
the Company, the ratio of (a) Consolidated EBITDA for the period of four
fiscal quarters ending on such day to (b) cash interest expense (excluding
fees payable on account of Letters of Credit and, to the extent included in
interest expense in accordance with GAAP, net costs associated with
Interest Rate Agreements to which the Company is party in respect of the
Loans and amortization of debt discount (including discount of liabilities
and reserves established under APB 16), costs of debt issuance and interest
expense on customer deposits) for such period net of interest income, in
each case for or during such period on a consolidated basis for the Company
and its Subsidiaries.
"INTEREST PAYMENT DATE": (a) as to Alternate Base Rate Loans, the
last day of each March, June, September and December, commencing on the
first such day to occur after any Alternate Base Rate Loans are made or any
Eurodollar Loans are converted to Alternate Base Rate Loans, (b) as to any
Eurodollar Loan in respect of which the Company has selected an Interest
Period of one, two or three months, the last day of such Interest Period
and (c) as to any Eurodollar Loan in respect of which the Company has
selected an Interest Period of six months, the date which is three months
after the beginning thereof and the last day of such Interest Period.
18
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case may be, the
Borrowing Date or conversion date with respect to such Eurodollar Loan
and ending one, two, three, six or, if available, nine or twelve
months thereafter as selected by the Company in its notice of
borrowing as provided in subsection 4.1 or its notice of conversion as
provided in subsection 4.2; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three, six or, if available, nine or twelve months
thereafter as selected by the Company by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect to such
Eurodollar Loan;
PROVIDED that the foregoing provisions relating to Interest Periods are
subject to the following:
(A) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding 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 immediately preceding
Business Day;
(B) any Interest Period that would otherwise extend beyond (i)
in the case of an Interest Period for a Term Loan, the final
Installment Payment Date for such Term Loan shall end on such
Installment Payment Date or, if such Installment Payment Date shall
not be a Business Day, on the next preceding Business Day and (ii) in
the case of any Interest Period for a Revolving Credit Loan, the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date, or if the Revolving Credit Termination Date shall
not be a Business Day, on the next preceding Business Day;
(C) if the Company shall fail to give notice as provided above
in clause (b), it shall be deemed to have selected a conversion of a
Eurodollar Loan into an Alternate Base Rate Loan (which conversion
shall occur automatically and without need for compliance with the
conditions for conversion set forth in subsection 4.2);
(D) any Interest Period that begins on the last 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 a calendar month; and
(E) the Company shall select Interest Periods so as not to
require a prepayment (to the extent practicable) or a scheduled
payment of a Eurodollar Loan during an Interest Period for such
Eurodollar Loan.
19
"INTEREST RATE AGREEMENT": any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, currency hedge
agreement or other similar agreement or arrangement; PROVIDED that the
amount of any such Interest Rate Agreement for purposes of Section 9(e)
shall be based on calculation of payments for early termination in a
reasonable manner in accordance with customary industry practices.
"IPO": the sale by Holdings through a public offering of a portion of
its common stock pursuant to an effective registration statement, as
amended, as originally filed on Form S-1, Registration Statement No.
333-11517, with the Securities and Exchange Commission on September 6, 1996
(or on such other registration statement determined by Holdings, on the
advice of its counsel, to be appropriate other than a registration
statement on Form X-0, X-0 or any successor or similar forms) filed under
the Securities Act of 1933, as amended.
"ISSUING LENDER": Chase and any of its Affiliates, including The
Chase Manhattan Bank Delaware, issuing Letters of Credit.
"L/C APPLICATION": as defined in subsection 3.5(a).
"L/C OBLIGATIONS": the obligations of the Company to reimburse the
Issuing Lender for any payments made by the Issuing Lender under any Letter
of Credit that have not been reimbursed by the Company pursuant to
subsection 3.8(a).
"L/C PARTICIPATING INTEREST": an undivided participating interest in
the face amount of each issued and outstanding Letter of Credit and the L/C
Application relating thereto.
"L/C PARTICIPATION CERTIFICATE": the certificate in substantially the
form of Exhibit H.
"LEASE OBLIGATIONS": of the Company and its Subsidiaries, as of the
date of any determination thereof, the rental commitments of the Company
and its Subsidiaries determined on a consolidated basis, if any, under
leases for real and/or personal property (net of rental commitments from
sub-leases thereof), excluding however, obligations under Financing Leases.
"LEASED PROPERTIES": as defined in subsection 5.13.
"LETTERS OF CREDIT": the collective reference to the Commercial L/Cs
and the Standby L/Cs; individually, a "LETTER OF CREDIT."
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing
except for the filing of financing statements in connection with Lease
Obligations incurred by the Company or its Subsidiaries to the
20
extent that such financing statements relate to the property subject to
such lease Obligations).
"LOANS": the collective reference to the Swing Line Loans, the Term
Loans and the Revolving Credit Loans; individually, a "LOAN".
"MANAGING AGENTS": Chase and BTCo in their capacities as managing
agents hereunder.
"MATURITY DATE": December 31, 2002.
"MORTGAGED PROPERTY": (a) the fee real property listed on Schedule
5.13 covered by Mortgages delivered pursuant to subsection 7.9 of the
Existing Credit Agreement and (b) any fee real property covered by a
Mortgage delivered pursuant to subsection 7.9 hereof.
"MORTGAGES": collective reference to the mortgages and/or deeds of
trust or other similar documents, as the case may be, delivered pursuant to
sections 7.9 or 7.10 of the Existing Credit Agreement, or substantially in
the form of Exhibit I (with any changes necessary to comply with applicable
state law requirements), to be executed and delivered by the Company or any
Subsidiary to the Collateral Agent pursuant to subsection 7.9, as the same
may be amended, supplemented, or otherwise modified from time to time.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NET PROCEEDS": the aggregate cash proceeds received by Holdings, the
Company or any Subsidiary of the Company in respect of:
(a) (i) any issuance or borrowing of any debt securities or
loans by the Company or any Subsidiary other than debt or loans
permitted to be incurred or borrowed pursuant to subsection 8.1 or
(ii) any issuance of Capital Stock in the IPO net of proceeds used to
redeem (x) Holdings subordinated debt in the principal amount of
$10,000,000 plus a $350,000 redemption premium and (y) $33,300,000 of
the Company's 12.75% senior subordinated notes due March 1, 2005 plus
a $4,200,000 redemption premium.
(b) any Asset Sale, excluding (i) any net proceeds received upon
any condemnation or exercise of rights of eminent domain to the extent
the same shall be deemed not to constitute Net Proceeds pursuant to
the proviso to subsection 8.5(d) and (ii) any proceeds of insurance
received upon any casualty or loss;
(c) any cash received in respect of substantially like-kind
exchanges of property to the extent provided in the proviso to
subsection 8.5(e); and
(d) any cash payments received in respect of promissory notes
delivered to the Company or such Subsidiary in respect of an Asset
Sale;
21
in each case net of (without duplication) (A) the amount required to repay
any Indebtedness (other than the Loans) secured by a Lien on any assets of
the Company or a Subsidiary of the Company that are collateral for any such
debt securities or loans that are sold or otherwise disposed of in
connection with such Asset Sale, (B) the reasonable expenses (including
legal fees and brokers' and underwriters' commissions, lenders fees or
credit enhancement fees, in any case, paid to third parties or, to the
extent permitted hereby, Affiliates) incurred in effecting such issuance or
sale and (C) any taxes reasonably attributable to such sale and reasonably
estimated by the Company or such Subsidiary to be actually payable.
"NON-FUNDING LENDER": as defined in subsection 4.9(c).
"NOTES": the collective reference to the Swing Line Note, the
Revolving Credit Notes and the Term Loan Notes; each of the Notes, a
"NOTE".
"PARTICIPANTS": as defined in subsection 11.6(b).
"PARTICIPATING LENDER": any Lender (other than the Issuing Lender)
with respect to its L/C Participating Interest in each Letter of Credit.
"PAYMENT SHARING NOTICE": a written notice from the Company or any
Lender informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to
allocate payments thereafter received from or on behalf of the Company in
accordance with the provisions of subsection 4.9.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA or any successor.
"PERMITTED LIENS": Liens permitted to exist under subsection 8.2.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PLAN": at any particular time, any employee benefit plan as defined
in Section 3(3) of ERISA and not excluded by Section 4(b) of ERISA and in
respect of which the Company or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENTS": the collective reference to the Holdings Pledge
Agreement and any pledge agreement from time to time executed and delivered
by the Company providing for the pledge of the Capital Stock of any
Subsidiary pursuant to subsection 8.6(b).
"PRIME EQUIPMENT": Prime Equipment Company, a Texas corporation, and
a wholly-owned Subsidiary of the Company.
22
"PUBLIC WAREHOUSE": any warehouse other than a warehouse which is
(a) owned or leased by the Company or (b) under the control and management
of the Company.
"REFERENCE LENDERS": Chase and BTCo.
"REFUNDED SWING LINE LOANS": as defined in subsection 3.4(b).
"REGISTER": as defined in subsection 11.6(d).
"REGULATION U": Regulation U of the Board of Governors of the Federal
Reserve System, as from time to time in effect.
"RELATED DOCUMENT": any agreement, certificate, document or
instrument relating to a Letter of Credit.
"RENTAL FLEET EQUIPMENT": as defined in the definition of "Eligible
Rental Fleet Equipment".
"REORGANIZATION": with respect to a Multiemployer Plan, the condition
that such Plan is in reorganization as such term is used in Section 4241 of
ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b) of
ERISA other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"REQUIRED LENDERS": at a particular time, the holders of at least 51%
of the sum of (i) the aggregate unpaid principal amount of the Term Loans,
if any, and (ii) the Revolving Credit Commitments or, if the Revolving
Credit Commitments are terminated, the aggregate unpaid principal amount of
the Revolving Credit Loans. The Term Loans and the Revolving Credit
Commitments of any Non-Funding Lender shall be disregarded in determining
Required Lenders at any time.
"REQUIREMENT OF LAW": as to any Person, the Articles or Certificate
of Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation, order, or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its
property, or to which such Person or any of its property is subject.
"RESPONSIBLE OFFICER": with respect to any Person, the president,
chief executive officer, the chief operating officer, the chief financial
officer, treasurer, controller or any vice president of such Person.
"REVOLVING CREDIT COMMITMENT": as to any Lender, its obligations as
provided for in subsection 3.1 to make Revolving Credit Loans to the
Company pursuant to subsection 3.1, and to purchase its L/C Participating
Interest in any Letter of Credit, in an aggregate amount not to exceed the
sum of the amounts set forth under such Lender's name in Schedule I
opposite the caption "Revolving Credit Commitment" or in Schedule 1 to the
Assignment and Acceptance by which such Lender acquired its Revolving
Credit
23
Commitment, as the same may be reduced from time to time pursuant to
subsection 4.3 or 4.4(b) or adjusted pursuant to subsection 11.6(c);
collectively, as to all the Lenders, the "REVOLVING CREDIT COMMITMENTS".
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Lender at any
time, the percentage of the aggregate Revolving Credit Commitments then
constituted by such Lender's Revolving Credit Commitment.
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and including
the Effective Date to but not including the Revolving Credit Termination
Date.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS": as defined in
subsection 3.1(a).
"REVOLVING CREDIT NOTE": as defined in subsection 4.13(e).
"REVOLVING CREDIT TERMINATION DATE": the earlier of (a) the fifth
anniversary of the Effective Date and (b) such other date as the Revolving
Credit Commitments shall terminate hereunder.
"SECTION 4.4 LENDERS": at a particular time, the holders of (a) at
least 51% of the aggregate unpaid principal amount of the Term Loans, if
any, and (b) at least 51% of the Revolving Credit Commitments or, if the
Revolving Credit Commitments are terminated, the aggregate unpaid principal
amount of the Revolving Credit Loans. The Term Loans and the Revolving
Credit Commitments of any Non-Funding Lender shall be disregarded in
determining Section 4.4 Lenders at any time.
"SECTION 8.6 ACQUISITION": as defined in subsection 8.6(h).
"SECURITY AGREEMENTS": the collective reference to the Company
Security Agreement and any security agreement which may from time to time
be executed and delivered by a Subsidiary of the Company pursuant to
subsection 8.6(b).
"SECURITY DOCUMENTS": the collective reference to the Pledge
Agreements, the Security Agreements, the Mortgages and any assignment of
leases delivered pursuant to the terms of any Mortgage.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA and which is not a Multiemployer Plan.
"STANDBY L/C": an irrevocable letter of credit under which the
Issuing Lender agrees to make payments in Dollars for the account of the
Company, on behalf of the Company or any Subsidiary thereof in respect of
obligations of the Company or such Subsidiary incurred pursuant to
contracts made or performances undertaken or to be undertaken or like
matters relating to contracts to which the Company or such Subsidiary is or
proposes to become a party in the ordinary course of the Company's or such
Subsidiary's business, including, without limiting the foregoing, for
insurance purposes
24
or in respect of advance payments or as bid or performance bonds or for any
other purpose for which a standby letter of credit might customarily be
issued.
"SUBORDINATED DEBT": the $100,000,000 aggregate principal amount of
12.75% senior subordinated notes due March 1, 2005, as contemplated to be
reduced by $33,300,000 (plus a redemption premium of $4,200,000), issued by
the Company pursuant to an indenture, dated as of March 6, 1995, between
the Company and Texas Commerce Bank National Association, as trustee.
"SUBSECTION 4.11(D)(2) CERTIFICATE": as defined in subsection
4.11(d).
"SUBSIDIARY": as to any Person, any corporation of which shares of
stock of each class having ordinary voting power (other than stock having
such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation
are at the time owned by such Person or by one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person. (A
Subsidiary shall be deemed wholly-owned by a Person who owns all of the
voting shares of stock of such Subsidiary having voting power under
ordinary circumstances to vote for directors, except for directors'
qualifying shares.) Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"SUPERMAJORITY LENDERS": at a particular time, the holders of at
least 66-2/3% of the sum of (i) the aggregate unpaid principal amount of
the Term Loans, if any, and (ii) the Revolving Credit Commitments or, if
the Revolving Credit Commitments are terminated, the aggregate unpaid
principal amount of the Revolving Credit Loans. The Term Loans and the
Revolving Credit Commitments of any Non-Funding Lender shall be disregarded
in determining Supermajority Lenders at any time.
"SWING LINE COMMITMENT": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 3.4.
"SWING LINE LENDER": Chase in its capacity as lender of the Swing
Line Loans.
"SWING LINE LOAN PARTICIPATION CERTIFICATE": a certificate in
substantially the form of Exhibit J.
"SWING LINE LOANS": as defined in subsection 3.4(a).
"SWING LINE NOTE": as defined in subsection 4.13(e).
"TERM LOAN COMMITMENT": as to any Lender, its obligation to continue
and to make Term Loans to the Company pursuant to subsection 2.1 in an
aggregate amount not to exceed the amount set forth under such Lender's
name in Schedule I opposite the caption "Term Loan Commitment" or in
Schedule 1 to the Assignment and Acceptance pursuant to which a Lender
acquires its Term Loan Commitment, as the same may be adjusted pursuant to
subsection 11.6(c); collectively, as to all the Lenders, the "TERM LOAN
COMMITMENTS".
25
"TERM LOAN COMMITMENT PERCENTAGE": as to any Lender at any time, the
percentage of the aggregate Term Loan Commitments then constituted by such
Lender's Term Loan Commitment.
"TERM LOAN NOTE: as defined in subsection 4.13(e).
"TERM LOANS": as defined in subsection 2.1.
"TRANSFEREE": as defined in subsection 11.6(f).
"TYPE": as to any Loan, its nature as an Alternate Base Rate Loan or
Eurodollar Loan.
"TYPE I": at any date of determination, as to any Eligible Rental
Fleet Equipment, its nature as Eligible Rental Fleet Equipment that is aged
one year or less from the date such Eligible Rental Fleet Equipment is
acquired by the Company; PROVIDED that any Eligible Rental Fleet Equipment
acquired by the Company which is used or acquired in connection with a
Section 8.6 Acquisition shall, for purposes of this definition, be aged
from the date such Equipment was delivered new to its original purchaser.
"TYPE II": at any date of determination, as to any Eligible Rental
Fleet Equipment, its nature as Eligible Rental Fleet Equipment that is aged
more than one year but less than or equal to two years from the date such
Eligible Rental Fleet Equipment is acquired by the Company; PROVIDED that
any Eligible Rental Fleet Equipment acquired by the Company which is used
or acquired in connection with a Section 8.6 Acquisition shall, for
purposes of this definition, be aged from date such Equipment was delivered
new to its original purchaser.
"TYPE III": at any date of determination, as to any Eligible Rental
Fleet Equipment, its nature as Eligible Rental Fleet Equipment that is aged
more than two years but less than or equal to three years from the date
such Eligible Rental Fleet Equipment is acquired by the Company; PROVIDED
that any Eligible Rental Fleet Equipment acquired by the Company which is
used or acquired in connection with a Section 8.6 Acquisition shall, for
purposes of this definition, be aged from the date such Equipment was
delivered new to its original purchaser.
"TYPE IV": at any date of determination, as to any Eligible Rental
Fleet Equipment, its nature as Eligible Rental Fleet Equipment that is aged
more than three years from the date such Eligible Rental Fleet Equipment is
acquired by the Company; PROVIDED that any Eligible Rental Fleet Equipment
acquired by the Company which is used or acquired in connection with a
Section 8.6 Acquisition shall, for purposes of this definition, be aged
from the date such Equipment was delivered new to its original purchaser.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, and any amendments thereof.
26
"VIBROPLANT ACQUISITION": the acquisition by the Company or any of
its Subsidiaries of all of the issued and outstanding Capital Stock, or
substantially all of the assets, of Vibroplant U.S., Inc., a Florida
corporation d/b/a American Hi-Lift, for aggregate consideration not to
exceed $70,000,000.
"VIBROPLANT U.S., INC.": a Florida corporation d/b/a American
Hi-Lift.
"WAREHOUSEMEN NOTICE": a warehousemen notice substantially in the
form of Exhibit O.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, any other Credit Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes, any other Credit Document and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Company and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1 to the extent not defined,
shall have the respective meanings given to them under GAAP. All computations
determining compliance with financial covenants or terms, including definitions
used therein, shall be prepared in accordance with generally accepted accounting
principles in effect at the time of the preparation of, and in conformity with
those used to prepare, the historical financial statements delivered to the
Administrative Agent pursuant to subsection 7.1. If at any time the
computations for determining compliance with financial covenants or provisions
relating thereto utilize generally accepted accounting principles different than
those then being utilized in the financial statements then being delivered to
the Administrative Agent, such financial statements shall be accompanied by a
reconciliation statement with respect to such computations.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, subsection,
schedule and exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms.
SECTION 2. TERM LOANS
2.1 TERM LOANS. Subject to the terms and conditions hereof, each
Lender severally agrees on the Effective Date (a) to continue its Term Loan
under the Existing Credit Agreement and (b) to acquire a term loan hereunder for
the purpose of refinancing the Term Loans under the Existing Credit Agreement
that are not being continued pursuant to clause (a) above (the term loans
continued or acquired hereunder, individually, a "TERM LOAN"; and collectively,
the "TERM LOANS"), in an aggregate amount equal to that set forth on Schedule I.
The parties agree that all the Term Loans continued or acquired hereunder shall
be deemed to be a continuation of the Term Loans extended to the Company under
the Existing Credit Agreement,
27
which Term Loans shall after the Effective Date be governed by the terms and
conditions stated herein.
2.2 REPAYMENT OF TERM LOANS. The Company shall repay the Term Loans
as provided in subsection 4.4(c).
2.3 USE OF PROCEEDS. The proceeds of the Term Loans shall be used for
the purposes of continuing or refinancing the Term Loans under the Existing
Credit Agreement on and as of the Effective Date and thereafter for general
corporate purposes.
2.4 PROCEDURE FOR EFFECTIVE DATE. (a) The Company shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 noon, New York City time), (i) three
Business Days prior to the requested Effective Date if all or any part of the
Term Loans as of the Effective Date are to be Eurodollar Loans and (ii) one
Business Day prior to the requested Effective Date (or, if the Effective Date
occurs on the date this Agreement is executed and delivered, on the requested
Borrowing Date) if the Term Loans as of the Effective Date are to be solely of
Alternate Base Rate Loans and specifying (A) whether the Term Loans are
initially to be Eurodollar Loans or Alternate Base Rate Loans or a combination
thereof and (B) whether the Term Loans are initially to be entirely or partly
Eurodollar Loans, the length of the Interest Period for such Eurodollar Loans.
Upon receipt of such notice the Administrative Agent shall promptly notify each
Lender. Not later than 12:00 noon, New York City time, on the Effective Date
specified in such notice, each Lender shall make available to the Administrative
Agent at the office of the Administrative Agent specified in subsection 11.2 (or
at such other location as the Administrative Agent may direct) an amount in
immediately available funds equal to the amount of the Term Loan to be made by
such Lender pursuant to subsection 2.1(b). Loan proceeds received by the
Administrative Agent hereunder shall promptly be applied by the Administrative
Agent to the Term Loan under the Existing Credit Agreement not being continued
pursuant to subsection 2.1(a) by payment directly to the holders thereof under
the Existing Credit Agreement.
SECTION 3. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS
3.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Lender severally agrees on the Effective Date (i) to
continue its Revolving Credit Commitment under the Existing Credit Agreement and
(ii) to provide an additional Revolving Credit Commitment hereunder for the
purpose of refinancing the Revolving Credit Commitments under the Existing
Credit Agreements that are not being continued pursuant to clause (i) above (the
loans in Dollars continued or provided hereunder, individually, such a Loan is a
"REVOLVING CREDIT LOAN", and collectively such Loans are the "REVOLVING CREDIT
LOANS"), in an aggregate amount equal to that set forth on Schedule I. The
parties agree that all the Revolving Credit Loans continued or provided
hereunder shall be deemed to be a continuation of the Revolving Credit Loans
provided to the Company under the Existing Credit Agreement, which Revolving
Credit Loans shall after the Effective Date be governed by the terms and
conditions stated herein. Notwithstanding the above, (x) in no event shall any
Letter of Credit be issued if after giving effect thereto the sum of the undrawn
amount of all outstanding Letters of Credit and the amount of all L/C
Obligations would exceed $15,000,000 and (y) in no event shall any Revolving
Credit
28
Loans be made, or Letters of Credit be issued, (A) if the aggregate amount of
the Revolving Credit Loans to be made or Letters of Credit to be issued would,
after giving effect to the use of proceeds, if any, thereof, exceed the
aggregate Available Revolving Credit Commitments or (B) if, after giving effect
to such Revolving Credit Loan or Letter of Credit, a Borrowing Base Deficiency
would exist. During the Revolving Credit Commitment Period, the Company may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof, and/or by having the Issuing Lender issue Letters of Credit,
having such Letters of Credit expire undrawn upon or if drawn upon, reimbursing
the Issuing Lender for such drawing, and having the Issuing Lender issue new
Letters of Credit.
(b) Each borrowing of Revolving Credit Loans pursuant to the Revolving
Credit Commitments shall be in an aggregate principal amount of the lesser of
(i) $1,000,000 or a whole multiple of $100,000 in excess thereof, in the case of
Alternate Base Rate Loans, and $2,000,000 or a whole multiple of $1,000,000 in
excess thereof, in the case of Eurodollar Loans and (ii) the Available Revolving
Credit Commitments, except that any borrowing of Revolving Credit Loans to be
used solely to pay a like amount of Swing Line Loans may be in the aggregate
principal amount of such Swing Line Loans.
3.2 COMMITMENT FEE. The Company agrees to pay to the Administrative
Agent for the account of each Lender (other than any Non-Funding Lender) a
commitment fee from and including the Effective Date to and including the
Revolving Credit Termination Date, computed at the rate per annum set forth
below on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made (whether or not the
Company shall have satisfied the applicable conditions to borrowing or issuance
of a Letter of Credit set forth in Section 6). If the applicable Debt Coverage
Ratio is:
(i) greater than 3.75, a rate per annum equal to 0.50%;
(ii) less than or equal to 3.75 but greater than 2.25, a rate
per annum equal to 0.375%;
(iii) less than or equal to 2.25 but greater than 1.75, a rate
per annum equal to 0.350%; and
(iv) less than or equal to 1.75, a rate per annum equal to
0.300%.
Such commitment fee shall be payable quarterly in arrears on the last day of
each March, June, September and December and on the Revolving Credit Termination
Date, commencing on the first such date to occur on or following the Effective
Date (or, if earlier, the Revolving Credit Termination Date). The commitment
fee for the period commencing with each Adjustment Date and ending on the next
succeeding Adjustment Date shall be determined by reference to the Debt Coverage
Ratio of the Company set forth on the certificate most recently required to be
delivered to the Lenders pursuant to subsection 7.2(b); PROVIDED, that, (a)
until the first Adjustment Date, the commitment fee shall be as set forth in
clause (iii) of this Section 3.2 and (b) if for any reason the certificate
required by subsection 7.2(b) is not timely delivered to the Lenders, then (i)
during the period from the date upon which such certificate was required to be
delivered until the date upon which it actually is delivered, the commitment fee
shall be the commitment fee in
29
effect immediately prior to the date such financial statements were due, and
(ii) if such certificate, when actually delivered, would have required an
increase in the commitment fee over the commitment fee in effect immediately
prior to the date such certificate was due, the Company shall promptly following
the delivery of such certificate pay to the Lenders and the Administrative Agent
any additional amounts of fees which would have been payable on any previous
commitment fee payment date had such higher commitment fee been in effect from
the date such certificate was required to be delivered; and PROVIDED, FURTHER,
that any change in the commitment fee as a result of a change in the Debt
Coverage Ratio shall apply for each day during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change in the commitment fee.
3.3 PROCEEDS OF REVOLVING CREDIT LOANS. The Company shall use the
proceeds of Revolving Credit Loans for general corporate purposes.
3.4 SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees, so long as the Administrative Agent has
not received notice that an Event of Default has occurred and is continuing, to
make swing line loans (individually, a "SWING LINE LOAN"; collectively, the
"SWING LINE LOANS") to the Company from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed $10,000,000, PROVIDED that no Swing Line Loan may be made if the
aggregate principal amount of the Swing Line Loans to be made would exceed the
aggregate Available Revolving Credit Commitments at such time, and PROVIDED,
FURTHER, that no Swing Line Loan may be made if, after giving effect thereto, a
Borrowing Base Deficiency would exist. Amounts borrowed by the Company under
this subsection 3.4 may be repaid and, through but excluding the Revolving
Credit Termination Date, reborrowed. All Swing Line Loans shall be made as
Alternate Base Rate Loans and shall not be entitled to be converted into
Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to
3:00 p.m., New York City time) on the requested Borrowing Date specifying the
amount of each requested Swing Line Loan, which shall be in an aggregate minimum
amount of $250,000 or a whole multiple of $100,000 in excess thereof. The
proceeds of each Swing Line Loan will be made available by the Swing Line Lender
to the Company by crediting the account of the Company at the office of the
Swing Line Lender with such proceeds. The proceeds of Swing Line Loans may be
used solely for the purposes referred to in subsection 3.3.
(b) The Swing Line Lender at any time in its sole and absolute
discretion may, and on the fifteenth day (or if such day is not a Business Day,
the next Business Day) and last Business Day of each month shall, on behalf of
the Company (which hereby irrevocably directs the Swing Line Lender to act on
its behalf) request each Lender, including the Swing Line Lender, to make a
Revolving Credit Loan in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the amount of the Swing Line Loans (the "REFUNDED SWING
LINE LOANS") outstanding on the date such notice is given. Unless any of the
events described in paragraph (f) of Section 9 shall have occurred (in which
event the procedures of paragraph (c) of this subsection 3.4 shall apply) each
Lender shall make the proceeds of its Revolving Credit Loan available to the
Swing Line Lender for the account of the Swing Line Lender at the Alternate Base
Rate Lending Office of the Swing Line Lender prior to 12:00 noon (New York City
time) in funds immediately available on the Business Day next succeeding the
date such
30
notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this subsection 3.4 one of the events described in paragraph
(f) of Section 9 shall have occurred, each Lender will, on the date such Loan
was to have been made, purchase an undivided participating interest in the
Refunded Swing Line Loan in an amount equal to its Revolving Credit Commitment
Percentage of such Refunded Swing Line Loan. Each Lender will immediately
transfer to the Swing Line Lender in immediately available funds, the amount of
its participation and upon receipt thereof the Swing Line Lender will deliver to
such Lender a Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
(d) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's participating interest in a Refunded Swing Line
Loan, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded) in like funds as received; PROVIDED, HOWEVER, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like funds as such payment is
required to be returned by the Swing Line Lender.
(e) Each Lender's obligation to purchase participating interests
pursuant to subsection 3.4(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Company; (iv)
any breach of this Agreement by the Company or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
3.5 ISSUANCE OF LETTERS OF CREDIT. (a) The Company may from time to
time request the Issuing Lender to issue a Standby L/C or a Commercial L/C by
delivering to the Administrative Agent at its address specified in subsection
11.2 a letter of credit application in the Issuing Lender's then customary form
(the "L/C APPLICATION") completed to the satisfaction of the Issuing Lender,
together with the proposed form of such Letter of Credit (which shall comply
with the applicable requirements of paragraph (b) below) and such other
certificates, documents and other papers and information as the Issuing Lender
may reasonably request; PROVIDED that if the Issuing Lender informs the Company
that it is for any reason unable to open such Letter of Credit, the Company may
request any Lender to open such Letter of Credit upon the same terms offered to
the Issuing Lender and each reference to the Issuing Lender for purposes of
subsections 3.5 through 3.14, 6.1 and 6.2 shall be deemed to be a reference to
such issuing Lender. As of the Effective Date the letters of credit listed on
Schedule 3.5(a) shall be deemed to be Letters of Credit hereunder for all
purposes issued on the Effective Date.
(b) Each Standby L/C and Commercial L/C issued hereunder shall, among
other things, (i) be in such form requested by the Company as shall be
acceptable to the Issuing Lender in its sole discretion and (ii) in the case of
each Standby L/C, have an expiry date occurring not
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later than 365 days after the date of issuance of such Standby L/C and, in the
case of each Commercial L/C, have an expiry date occurring not later than 120
days after the date of issuance of such Commercial L/C and, in all cases, have
an expiry date occurring not later than the Revolving Credit Termination Date.
Each L/C Application and each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
3.6 PARTICIPATING INTERESTS. (a) Effective as of the Effective Date,
the Issuing Lender hereby repurchases from each Existing Lender, and each
Existing Lender sells to the Issuing Lender, its L/C Participating Interest in
each existing Letter of Credit listed on Schedule 3.5(a).
(b) Effective in the case of each Standby L/C and Commercial L/C as of
the date of the opening thereof (or, in the case of each existing Letter of
Credit listed on Schedule 3.5(a), the Effective Date), the Issuing Lender agrees
to allot and does allot, to itself and each other Lender, and each Lender
severally and irrevocably agrees to take and does take in such Letter of Credit
and the related L/C Application, an L/C Participating Interest in a percentage
equal to such Lender's Revolving Credit Commitment Percentage.
3.7 PROCEDURE FOR OPENING LETTERS OF CREDIT. The Issuing Lender will
notify each Lender after the end of each calendar month of any L/C Applications
received by the Issuing Lender from the Company during such month. Upon receipt
of any L/C Application from the Company, the Issuing Lender will process such
L/C Application, and the other certificates, documents and other papers
delivered to the Issuing Lender in connection therewith, in accordance with its
customary procedures and, subject to the terms and conditions hereof, shall
promptly open such Letter of Credit by issuing the original of such Letter of
Credit to the beneficiary thereof and by furnishing a copy thereof to the
Company and, after the end of the calendar month in which such Letter of Credit
was opened, to the other Lenders, PROVIDED that no such Letter of Credit shall
be issued if subsection 3.1 would be violated thereby.
3.8 PAYMENTS IN RESPECT OF LETTERS OF CREDIT. (a) The Company agrees
forthwith upon demand by the Issuing Lender and otherwise in accordance with the
terms of the L/C Application relating thereto (i) to reimburse the Issuing
Lender for any payment made by the Issuing Lender under any Letter of Credit
issued for the account of the Company and (ii) to pay interest on any
unreimbursed portion of any such payment from the date of such payment until
reimbursement in full thereof at a rate per annum equal to (A) on or prior to
the date which is one Business Day after the day on which the Issuing Lender
demands reimbursement from the Company for such payment, 1-1/4% above the
Alternate Base Rate and (B) thereafter, 3-1/4% above the Alternate Base Rate.
(b) In the event that the Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor forthwith upon demand of
the Issuing Lender, and otherwise in accordance with the terms of the L/C
Application relating to such Letter of Credit, the Issuing Lender will promptly
notify each other Lender. Forthwith upon its receipt of any such notice, each
other Lender will transfer to the Issuing Lender, in immediately available
funds, an amount equal to such other Lender's PRO RATA share of the L/C
Obligation arising from such unreimbursed payment. Promptly, upon its receipt
from such other Lender of such amount, the
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Issuing Lender will complete, execute and deliver to such other Lender an L/C
Participation Certificate dated the date of such receipt and in such amount.
(c) Whenever, at any time after the Issuing Lender has made a payment
under any Letter of Credit and has received from any other Lender such other
Lender's PRO RATA share of the L/C Obligation arising therefrom, the Issuing
Lender receives any reimbursement on account of such L/C Obligation or any
payment of interest on account thereof, the Issuing Lender will promptly
distribute to such other Lender its PRO RATA share thereof in like funds as
received; PROVIDED, HOWEVER, that in the event that the receipt by the Issuing
Lender of such reimbursement or such payment of interest (as the case may be) is
required to be returned, such other Lender will return to the Issuing Lender any
portion thereof previously distributed by the Issuing Lender to it in like funds
as such reimbursement or payment is required to be returned by the Issuing
Lender.
3.9 LETTER OF CREDIT FEES. (a) In lieu of any letter of credit
commissions and fees provided for in any L/C Application relating to Commercial
L/Cs or Standby L/Cs (other than standard issuance, amendment and negotiation
fees), the Company agrees to pay the Administrative Agent, for the account of
the Issuing Lender and the Participating Lenders, with respect to each
Commercial L/C or each Standby L/C issued for the account of the Company, a
Commercial L/C fee or Standby L/C fee, as applicable, which is equal to the then
applicable margin for Eurodollar loans that are Revolving Credit Loans, as set
forth in the definition of "Applicable Margin", on the daily average amount
available to be drawn under each Standby L/C payable, in arrears, on the last
day of each fiscal quarter of the Company. Of such fee, the Issuing Lender
shall receive, for its own account, a fee of .25% per annum. The Administrative
Agent will disburse any L/C fees received pursuant to this subsection 3.9(a) to
the respective Lenders promptly following the receipt of any such fees.
(b) For purposes of any payment of fees required pursuant to this
subsection 3.9, the Administrative Agent agrees to provide to the Company a
statement of any such fees to be so paid; PROVIDED that the failure by the
Administrative Agent to provide the Company with any such invoice shall not
relieve the Company of its obligation to pay such fees.
3.10 LETTER OF CREDIT RESERVES. (a) If any Change in Law shall either
(i) impose, modify, deem or make applicable any reserve, special deposit,
assessment or similar requirement against letters of credit issued by the
Issuing Lender or (ii) impose on the Issuing Lender any other condition
regarding this Agreement (with respect to Letters of Credit) or any Letter of
Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be the result of the Issuing
Lender's reasonable allocation of the aggregate of such cost increases resulting
from such events), then, upon demand by the Issuing Lender, the Company shall
immediately pay to the Issuing Lender, from time to time as specified by the
Issuing Lender, additional amounts which shall be sufficient to compensate the
Issuing Lender for such increased cost, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the rate applicable to Alternate Base Rate Loans pursuant to subsection
4.5(b). The Company shall not be required to make any payments to the Issuing
Lender for any additional amounts pursuant to this subsection 3.10(a) unless the
Issuing Lender has given written notice to the Company of its intent to request
such payments prior to or within 60 days after the date on which the Issuing
Lender became entitled to claim such
33
amounts. A certificate, setting forth in reasonable detail the calculation of
the amounts involved, submitted by the Issuing Lender to the Company
concurrently with any such demand by the Issuing Lender, shall be conclusive,
absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law with respect to the Issuing
Lender shall, in the opinion of the Issuing Lender, require that any obligation
under any Letter of Credit be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be maintained by
the Issuing Lender or any corporation controlling the Issuing Lender, and such
Change in Law shall have the effect of reducing the rate of return on the
Issuing Lender's or such corporation's capital, as the case may be, as a
consequence of the Issuing Lender's obligations under such Letter of Credit to a
level below that which the Issuing Lender or such corporation, as the case may
be, could have achieved but for such Change in Law (taking into account the
Issuing Lender's or such corporation's policies, as the case may be, with
respect to capital adequacy) by an amount deemed by the Issuing Lender to be
material, then from time to time following notice by the Issuing Lender to the
Company of such Change in Law, within 15 days after demand by the Issuing
Lender, the Company shall pay to the Issuing Lender such additional amount or
amounts as will compensate the Issuing Lender or such corporation, as the case
may be, for such reduction. The Issuing Lender agrees that, upon the occurrence
of any event giving rise to the operation of paragraph (a) or (b) of this
subsection 3.10 with respect to the Issuing Lender, it will, if requested by the
Company and to the extent permitted by law or by the relevant Governmental
Authority, endeavor in good faith to avoid or minimize the increase in costs or
reduction in payments resulting from such event; PROVIDED, HOWEVER, that such
avoidance or minimization can be made in such a manner that the Issuing Lender,
in its sole determination, suffers no economic, legal or regulatory
disadvantage. The Company shall not be required to make any payments to the
Issuing Lender for any additional amounts pursuant to this subsection 3.10(b)
unless the Issuing Lender has given written notice to the Company of its intent
to request such payments prior to or within 60 days after the date on which the
Issuing Lender became entitled to claim such amounts. A certificate, in
reasonable detail setting forth the calculation of the amounts involved,
submitted by the Issuing Lender to the Company concurrently with any such demand
by the Issuing Lender, shall be conclusive, absent manifest error, as to the
amount thereof.
(c) The Company and each Participating Lender agrees that the
provisions of the foregoing paragraphs (a) and (b) shall apply equally to each
Participating Lender in respect of its L/C Participating Interest in such Letter
of Credit, as if the references in such paragraphs and provisions referred to,
where applicable, such Participating Lender or, in the case of paragraph (b),
any corporation controlling such Participating Lender.
3.11 FURTHER ASSURANCES. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of Letters of Credit hereunder.
3.12 OBLIGATIONS ABSOLUTE. The payment obligations of the Company
under this Agreement with respect to the Letters of Credit shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
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(i) the existence of any claim, set-off, defense or other right which
the Company or any of its Subsidiaries may have at any time against any
beneficiary, or any transferee, of any Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Lender, the Administrative Agent, the Collateral Agent or any
Lender, or any other Person, whether in connection with this Agreement, any
Credit Document, the transactions contemplated herein, or any unrelated
transaction;
(ii) any statement or any other document presented under any Letter of
Credit proving to be forged, fraudulent or invalid or any statement therein
being untrue or inaccurate in any respect;
(iii) payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or certificate or other document which does not
comply with the terms of such Letter of Credit or is insufficient in any
respect, except where such payment constitutes gross negligence or willful
misconduct on the part of the Issuing Lender; or
(iv) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except for any such circumstances or
happening constituting gross negligence or willful misconduct on the part
of the Issuing Lender.
3.13 ASSIGNMENTS. No Participating Lender's participation in any
Letter of Credit or any of its rights or duties hereunder shall be subdivided,
assigned or transferred (other than in connection with a transfer of part or all
of such Participating Lender's Revolving Credit Commitment in accordance with
subsection 11.6(c)) without the prior written consent of the Issuing Lender,
which consent will not be unreasonably withheld. Such consent may be given or
withheld without the consent or agreement of any other Participating Lender.
Notwithstanding the foregoing, a Participating Lender may subparticipate its L/C
Participating Interest without obtaining the prior consent or agreement of the
Issuing Lender.
3.14 PARTICIPATIONS. Each Lender's obligation to purchase
participating interests pursuant to subsection 3.6 shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Lender, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an Event
of Default; (iii) any adverse change in the condition (financial or otherwise)
of the Company; (iv) any breach of this Agreement by the Company or any other
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 PROCEDURE FOR BORROWING. (a) The Company may borrow under the
Revolving Credit Commitments on any Business Day, PROVIDED that, with respect to
any borrowing, the Company shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 12:00
noon (or, with respect to Swing Line Loans, 3:00 p.m.), New York City time), (i)
three Business Days prior to the requested Borrowing Date if all or any part of
the Loans are to be Eurodollar Loans and (ii) one Business
35
Day prior to the requested Borrowing Date (or, in the case of Swing Line
Loans and, if the Effective Date occurs on the date this Agreement is
executed and delivered, Loans made on the Effective Date, on the requested
Borrowing Date) if the borrowing is to be solely of Alternate Base Rate
Loans) and specifying (A) the amount of the borrowing, (B) whether such Loans
are initially to be Eurodollar Loans or Alternate Base Rate Loans or a
combination thereof, (C) if the borrowing is to be entirely or partly
Eurodollar Loans, the length of the Interest Period for such Eurodollar Loans
and (D) whether the Loan is a Term Loan, a Swing Line Loan or a Revolving
Credit Loan. Upon receipt of such notice the Administrative Agent shall
promptly notify each Lender. Not later than 12:00 noon, New York City time,
on the Borrowing Date specified in such notice, each Lender shall make
available to the Administrative Agent at the office of the Administrative
Agent specified in subsection 11.2 (or at such other location as the
Administrative Agent may direct) an amount in immediately available funds
equal to the amount of the Loan to be made by such Lender (except that
proceeds of Swing Line Loans will be made available to the Company in
accordance with subsection 3.4(a)). Loan proceeds received by the
Administrative Agent hereunder shall promptly be made available to the
Company by the Administrative Agent's crediting the account of the Company,
at the office of the Administrative Agent specified in subsection 11.2, with
the aggregate amount actually received by the Administrative Agent from the
Lenders and in like funds as received by the Administrative Agent.
(b) Any borrowing of Eurodollar Loans hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of all Eurodollar Loans having the
same Interest Period shall not be less than $2,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) no more than sixteen Interest Periods
shall be in effect at any one time.
4.2 CONVERSION AND CONTINUATION OPTIONS. (a) The Company may elect
from time to time to convert Eurodollar Loans into Alternate Base Rate Loans by
giving the Administrative Agent irrevocable notice of such election, to be
received by the Administrative Agent prior to 12:00 noon, New York City time, at
least three Business Days prior to the proposed conversion date, PROVIDED that
any such conversion of Eurodollar Loans shall only be made on the last day of an
Interest Period with respect thereto. The Company may elect from time to time
to convert all or a portion of the Alternate Base Rate Loans (other than Swing
Line Loans) then outstanding to Eurodollar Loans by giving the Administrative
Agent irrevocable notice of such election, to be received by the Administrative
Agent prior to 12:00 noon, New York City time, at least three Business Days
prior to the proposed conversion date, specifying the Interest Period selected
therefor, and, if no Default or Event of Default has occurred and is continuing,
such conversion shall be made on the requested conversion date or, if such
requested conversion date is not a Business Day, on the next succeeding Business
Day. Upon receipt of any notice pursuant to this subsection 4.2, the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of the outstanding Loans (other than Swing Line Loans) may be converted as
provided herein, PROVIDED that partial conversions of Alternate Base Loans shall
be in the aggregate principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof and the aggregate principal amount of the resulting
Eurodollar Loans outstanding in respect of any one Interest Period shall be at
least $2,000,000 or a whole multiple of $1,000,000 in excess thereof.
36
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Company giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
next Interest Period to be applicable to such Loans, PROVIDED that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have, by written
notice to the Company, determined that such a continuation is not appropriate,
(ii) if, after giving effect thereto, subsection 4.1(b) would be contravened or
(iii) after the date that is one month prior to the Revolving Credit Termination
Date (in the case of continuations of Revolving Credit Loans) or the date of the
final installment of principal of the Term Loans, as applicable.
4.3 CHANGES OF COMMITMENT AMOUNTS. (a) The Company shall have the
right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate or, from time to time, permanently reduce the Revolving
Credit Commitments, subject to the provisions of this subsection 4.3. To the
extent, if any, that the sum of the amount of the Revolving Credit Loans, Swing
Line Loans and L/C Obligations then outstanding and the amounts available to be
drawn under outstanding Letters of Credit exceeds the amount of the Revolving
Credit Commitments as then reduced, the Company shall be required to make a
prepayment equal to such excess amount, the proceeds of which shall be applied
FIRST, to payment of the Swing Line Loans then outstanding, SECOND, to payment
of the Revolving Credit Loans then outstanding, THIRD, to payment of any L/C
Obligations then outstanding, and FOURTH, to cash collateralize any outstanding
Letters of Credit on terms reasonably satisfactory to the Administrative Agent.
Any such termination of the Revolving Credit Commitments shall be accompanied by
prepayment in full of the Revolving Credit Loans, Swing Line Loans and L/C
Obligations then outstanding and by cash collateralization of any outstanding
Letters of Credit on terms reasonably satisfactory to the Administrative Agent.
Upon termination of the Revolving Credit Commitments, any Letter of Credit then
outstanding which has been so cash collateralized shall no longer be considered
a "Letter of Credit" as defined in subsection 1.1 and any L/C Participating
Interests heretofore granted by the Issuing Lender to the Lenders in such Letter
of Credit shall be deemed terminated (subject to automatic reinstatement in the
event that such cash collateral is returned and the Issuing Lender is not fully
reimbursed for any such L/C Obligations) but the Letter of Credit fees payable
under subsection 3.9 shall continue to accrue to the Issuing Lender and the
Participating Lenders (or, in the event of any such automatic reinstatement, as
provided in subsection 3.9) with respect to such Letter of Credit until the
expiry thereof.
(b) In the case of termination of the Revolving Credit Commitments,
interest accrued on the amount of any prepayment relating thereto and any unpaid
commitment fee accrued hereunder shall be made on the date of such termination.
Any such partial reduction of the Revolving Credit Commitments shall be in an
amount of $2,000,000, or a whole multiple of $1,000,000 in excess thereof, and
shall, in each case, reduce permanently the amount of the Revolving Credit
Commitments then in effect.
4.4 OPTIONAL AND MANDATORY PREPAYMENTS; REPAYMENTS OF TERM LOANS. (a)
The Company may at any time and from time to time prepay Loans, in whole or in
part, without premium or penalty, upon at least two Business Days' (or, in the
case of Swing Line Loans, by 12:00 noon, New York City time, on the same
Business Day) irrevocable notice to the Administrative Agent in the case of
Alternate Base Rate Loans, and three Business Days' irrevocable notice to the
Administrative Agent in the case of Eurodollar Loans, specifying the
37
date and amount of prepayment and whether the prepayment is of Revolving
Credit Loans or Term Loans, PROVIDED that Eurodollar Loans may not be
optionally prepaid on other than the last day of any Interest Period with
respect thereto. Upon receipt of such notice the Administrative Agent shall
promptly notify each Lender thereof. If such notice is given, the Company
shall make such prepayment, and the payment amount specified in such notice
shall be due and payable, on the date specified therein. Partial prepayments
(i) of Term Loans shall be in an aggregate principal amount equal to the
lesser of (A) $2,000,000, or a whole multiple of $1,000,000 in excess thereof
and (B) the aggregate unpaid principal amount of the Term Loans and (ii) of
Revolving Credit Loans shall be in an aggregate principal amount equal to the
lesser of (A) $2,000,000 or a whole multiple of $1,000,000 in excess thereof
and (B) the aggregate unpaid principal amount of the Revolving Credit Loans,
as the case may be. Prepayments of the Term Loans pursuant to this
subsection 4.4(a) shall be applied to the remaining installments thereof
ratably according to the amounts of such installments.
(b)(i) If, subsequent to the Effective Date, unless the Section 4.4
Lenders and the Company shall otherwise agree, the Company or any of its
Subsidiaries shall incur or permit the incurrence of any Indebtedness (other
than Indebtedness permitted pursuant to subsection 8.1), 100% of the Net
Proceeds thereof shall be promptly applied toward the prepayment of the Loans
and reduction of the Commitments as set forth in clause (iv)(A) of this
subsection 4.4(b).
(ii) If, subsequent to the Effective Date, unless the Section 4.4
Lenders shall otherwise agree, the Company or any of its Subsidiaries shall
receive Net Proceeds from any Asset Sale, such Net Proceeds shall be promptly
applied toward the prepayment of the Loans and reduction of the Commitments as
set forth in clause (iv)(A), of this subsection 4.4(b); PROVIDED that such Net
Proceeds need not be applied to the prepayment of the Loans and the reduction of
the Commitments until the earlier of the date that the aggregate amount of Net
Proceeds received by the Company or any of its Subsidiaries from any Asset Sales
exceeds $2,000,000 (and has not yet been applied to the prepayment of the Loans
and the reduction of the Commitments hereunder) and the date which is six months
after the last application of Net Proceeds pursuant to this subsection
4.4(b)(ii).
(iii) Unless the Section 4.4 Lenders and the Company shall otherwise
agree, if for any fiscal year, commencing with its fiscal year ending on
December 31, 1996, there shall be Excess Cash Flow for such fiscal year, 50% of
such Excess Cash Flow shall be applied toward prepayment of the Loans and
reduction of the Commitments as set forth in clause (iv)(A) of this subsection
4.4(b). Each such prepayment shall be made on or before the date that the
consolidated financial statements referred to in subsection 7.1(a) are
delivered, but in no event later than the date by which such statements are
required to be delivered pursuant to such subsection.
(iv)(A) Except as otherwise provided in this subsection 4.4(b)(iv),
prepayments made pursuant to this subsection 4.4(b) shall be applied by the
Company, FIRST, to the prepayment of the Term Loans (applied to the
remaining installments thereof ratably according to the amounts thereof)
and, SECOND, to reduce the Revolving Credit Commitments. Any such
reduction of the Revolving Credit Commitments shall be accompanied by
prepayment of, FIRST, the Swing Line Loans, SECOND, the Revolving Credit
Loans and, THIRD, the L/C Obligations to the extent, if any, that the sum
of the aggregate outstanding principal amount of Revolving Credit Loans,
the aggregate outstanding
38
principal amount of all Swing Line Loans, the aggregate amount available to
be drawn under all outstanding Letters of Credit and the aggregate
outstanding amount of all L/C Obligations, in each case of all Lenders,
exceeds the amount of the aggregate Revolving Credit Commitments as so
reduced, PROVIDED that if the aggregate principal amount of Revolving
Credit Loans, Swing Line Loans and L/C Obligations then outstanding is less
than the amount of such excess (because Letters of Credit constitute a
portion thereof), the Company shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in
cash in a cash collateral account established for the benefit of the
Lenders.
(B) Any Net Proceeds (other than Net Proceeds resulting from (x) the
incurrence of any Indebtedness by the Company or any of its Subsidiaries,
(y) the issuance by Holdings, the Company or any of its Subsidiaries of any
Capital Stock in the IPO or (z) any Asset Sale) shall be applied to the
remaining installments of the Term Loans ratably according to the amounts
thereof.
(v) If, at any time, a Borrowing Base Deficiency shall exist, the
Company shall immediately prepay the Revolving Credit Loans, Swing Line Loans
and L/C Obligations then outstanding in an aggregate principal amount sufficient
to eliminate such Borrowing Base Deficiency, PROVIDED that if the aggregate
principal amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations
then outstanding is less than the amount of such Borrowing Base Deficiency
(because Letters of Credit constitute a portion thereof), the Company shall, to
the extent of the balance of such Borrowing Base Deficiency in excess of such
amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations then
outstanding, immediately replace outstanding Letters of Credit and/or deposit an
amount in cash in a cash collateral account established for the benefit of the
Lenders. Prepayments of Loans made pursuant to this subsection 4.4(b)(v) shall
be applied, FIRST, to the aggregate outstanding Swing Line Loans, SECOND, to the
aggregate outstanding Revolving Credit Loans and, THIRD, to the aggregate
outstanding L/C Obligations.
(vi) If, at any time after June 30, 2000, a Borrowing Base Deficiency
shall exist, the Company shall immediately prepay the Revolving Credit Loans,
Swing Line Loans, L/C Obligations and Term Loans then outstanding in an
aggregate principal amount sufficient to eliminate such Borrowing Base
Deficiency, PROVIDED that if the aggregate principal amount of Revolving Credit
Loans, Swing Line Loans, L/C Obligations and Term Loans then outstanding is less
than the amount of such Borrowing Base Deficiency (because Letters of Credit
constitute a portion thereof), the Company shall, to the extent of the balance
of such Borrowing Base Deficiency in excess of such amount of Revolving Credit
Loans, Swing Line Loans, L/C Obligations and Term Loans then outstanding,
immediately replace outstanding Letters of Credit and/or deposit an amount in
cash in a cash collateral account established for the benefit of the Lenders.
Prepayments of Loans made pursuant to this subsection 4.4(b)(vi) shall be
applied, FIRST, to the aggregate outstanding Swing Line Loans, SECOND, to the
aggregate outstanding Revolving Credit Loans, THIRD, to the aggregate
outstanding L/C Obligations and, FOURTH, to the remaining installments of the
Term Loans ratably according to the amounts thereof.
(vii) The Company shall give the Administrative Agent (which shall
promptly notify each Lender) at least one Business Day's notice of each
prepayment or mandatory reduction pursuant to this subsection 4.4(b) setting
forth the date and amount thereof. Except as
39
otherwise may be agreed by the Company and the Required Lenders, any prepayment
of Loans pursuant to this subsection 4.4 shall be applied, first, to any
Alternate Base Rate Loans then outstanding and the balance of such prepayment,
if any, to the Eurodollar Loans then outstanding; PROVIDED that prepayments of
Eurodollar Loans, if not on the last day of the Interest Period with respect
thereto, shall, at the Company's option, be prepaid subject to the provisions of
subsection 4.12 or the amount of such prepayment (after application to any
Alternate Base Rate Loans) shall be deposited with the Administrative Agent as
cash collateral for the Loans on terms reasonably satisfactory to the
Administrative Agent and thereafter shall be applied in the order of the
Interest Periods next ending most closely to the date such prepayment is
required to be made and on the last day of each such Interest Period. After
such application, unless an Event of Default shall have occurred and be
continuing, any remaining interest earned on such cash collateral shall be paid
to the Company.
(c) The Term Loans shall be repaid in twelve consecutive installments
each on the dates set forth below (each such day, an "INSTALLMENT PAYMENT DATE")
in an aggregate amount equal to the amount specified for each such Installment
Payment Date, as such amounts may be reduced pursuant to subsection 4.4(b):
INSTALLMENT PAYMENT DATE INSTALLMENT AMOUNT
December 31, 1996 $500,000
June 30, 1997 $500,000
December 31, 1997 $500,000
June 30, 1998 $1,000,000
December 31, 1998 $10,000,000
June 30, 1999 $10,500,000
December 31, 1999 $10,500,000
June 30, 2000 $12,500,000
December 31, 2000 $12,500,000
June 30, 2001 $15,000,000
December 31, 2001 $15,000,000
June 30, 2002 $17,500,000
December 31, 2002 $17,500,000
(d) Any and all amounts repaid on account of the Term Loans pursuant
to this subsection 4.4 or otherwise may not be reborrowed. Accrued interest on
the amount of any prepayments shall be paid on the Interest Payment Date next
succeeding the date of any partial prepayment and on the date on such prepayment
in the case of a prepayment in full of any Loans.
4.5 INTEREST RATES AND PAYMENT DATES. (a) Eurodollar Loans shall bear
interest for each day during each Interest Period applicable thereto, commencing
on (and including) the first day of such Interest Period to, but excluding, the
last day of such Interest Period, on the unpaid principal amount thereof at a
rate per annum equal to the Eurodollar Rate determined for such Interest Period
plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period from
and including the date such Loans are made to, but excluding, the maturity date
thereof, or to, but excluding, the conversion date if such Loans are earlier
converted into Eurodollar Loans on the unpaid
40
principal amount thereof at a rate per annum equal to the Alternate Base Rate
plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any of the
Loans or (ii) any interest payable thereon shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise) such Loan, if a Eurodollar
Loan, shall be converted into an Alternate Base Rate Loan at the end of the
then-current Interest Period for said Eurodollar Loan (which conversion shall
occur automatically and without need for compliance with the conditions for
conversion set forth in subsection 4.2), and any such overdue amount shall,
without limiting the rights of the Lenders under Section 9, bear interest (which
shall be payable on demand) at a rate per annum which is 2% above the Alternate
Base Rate plus the Applicable Margin (or, in the case of a Eurodollar Loan, the
Eurodollar Rate for the Interest Period plus the Applicable Margin plus 2%, if
higher) from the date of such non-payment until paid in full (as well after as
before judgment).
(d) Except as otherwise provided in subsection 4.5, interest shall be
payable in arrears on each Interest Payment Date.
4.6 COMPUTATION OF INTEREST AND FEES. (a) Interest in respect of
Alternate Base Rate Loans, at any time that the Alternate Base Rate is
determined by reference to the Prime Rate, and all fees hereunder shall be
calculated on the basis of a 365 (or 366 as the case may be) day year for the
actual days elapsed. Interest in respect of Eurodollar Loans and in respect of
Alternate Base Rate Loans, at any time that the Alternate Base Rate is
determined by reference to the Base CD Rate or the Federal Funds Effective Rate,
shall be calculated on the basis of a 360 day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the Company and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate is announced
or such change in the Eurocurrency Reserve Requirements becomes effective, as
the case may be. The Administrative Agent shall as soon as practicable notify
the Company and the Lenders of the effective date and the amount of each such
change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent in
determining the Eurodollar Rate.
(c) If at any time any Reference Lender shall cease to be a Lender
hereunder, such Reference Lender shall cease to be a Reference Lender and, if as
a result of the foregoing, there shall only be one Reference Lender remaining,
then the Administrative Agent, upon agreement with the Company, shall, by notice
to the Company and the Lenders, designate another Lender as a Reference Lender
so that there shall at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or otherwise fails to supply such rates
to the Administrative Agent upon its request,
41
the rate of interest shall be determined on the basis of the quotations of the
remaining Reference Lenders or Reference Lender.
4.7 CERTAIN FEES. The Company agrees to pay to the Administrative
Agent, for its own account, a non-refundable agent's fee, in the amount per
annum as set forth in the fee letter, dated as of November 3, 1994, between
Chase and the Company payable in advance on the Closing Date and annually
thereafter.
4.8 INABILITY TO DETERMINE INTEREST RATE. In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that (a) by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest Period with respect
to (i) proposed Loans that the Company has requested be made as Eurodollar
Loans, (ii) any Eurodollar Loans that will result from the requested conversion
of all or part of the Alternate Base Rate Loans into Eurodollar Loans or (iii)
the continuation of any Eurodollar Loan as such for an additional Interest
Period, or (b) dollar deposits in the relevant amount and for the relevant
period with respect to any such Eurodollar Loan are not generally available to
the Lenders in their respective Eurodollar Lending Offices' interbank eurodollar
markets, the Administrative Agent shall forthwith give telecopy notice of such
determination, confirmed in writing, to the Company and the Lenders at least one
day prior to, as the case may be, the requested Borrowing Date, the conversion
date or the last day of such Interest Period. If such notice is given (i) any
requested Eurodollar Loans shall be made as Alternate Base Rate Loans, (ii) any
Alternate Base Rate Loans that were to have been converted to Eurodollar Loans
shall be continued as Alternate Base Rate Loans, and (iii) any outstanding
Eurodollar Loans shall be converted, on the last day of the then current
Interest Period applicable thereto, into Alternate Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made and no Alternate Base Rate Loans shall be converted to
Eurodollar Loans.
4.9 PRO RATA TREATMENT AND PAYMENTS. (a) Except to the extent
otherwise provided herein, each borrowing of Loans by the Company from the
Lenders and any reduction of the Commitments of the Lenders hereunder shall be
made PRO RATA according to the relevant Commitment Percentages of the Lenders
with respect to the Loans borrowed or the Commitments to be reduced.
(b) Whenever any payment received by the Administrative Agent under
this Agreement or any Note or any Credit Document is insufficient to pay in full
all amounts then due and payable to the Administrative Agent and the Lenders
under this Agreement:
(i) If the Administrative Agent has not received a Payment Sharing
Notice (or, if the Administrative Agent has received a Payment Sharing
Notice but the Event of Default specified in such Payment Sharing Notice
has been cured or waived in accordance with the provisions of this
Agreement), such payment shall be distributed by the Administrative Agent
and applied by the Administrative Agent and the Lenders in the following
order: FIRST, to the payment of fees and expenses due and payable to the
Administrative Agent and the Collateral Agent under and in connection with
this Agreement and the other Credit Documents; SECOND, to the payment of
all expenses due and payable under subsection 11.5, ratably among the
Lenders in accordance with the
42
aggregate amount of such payments owed to each such Lender; THIRD, to the
payment of fees due and payable under subsections 3.2 and 3.9, ratably
among the Lenders in accordance with the Commitment Percentage of each
Lender of the Commitment for which such payment is owed and, in the case of
the Issuing Lender, the amount retained by the Issuing Lender for its own
account pursuant to subsection 3.9; FOURTH, to the payment of interest then
due and payable on the Loans and on the L/C Obligations, ratably in
accordance with the aggregate amount of interest owed to each such Lender;
and FIFTH, to the payment of the principal amount of the Loans and the L/C
Obligations which is then due and payable, ratably among the Lenders in
accordance with the aggregate principal amount owed to each such Lender; or
(ii) If the Administrative Agent has received a Payment Sharing Notice
which remains in effect, all payments received by the Administrative Agent
under this Agreement or any Note shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the
following order: FIRST, to the payment of all amounts described in clauses
"FIRST" through "THIRD" of the foregoing clause (i), in the order set forth
therein; SECOND, to the payment of the interest accrued on all Loans and
L/C Obligations, regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate accrued
interest PLUS the aggregate principal amount owed to such Lender; and
THIRD, to the payment of the principal amount of all Loans and L/C
Obligations, regardless of whether any such amount is then due and payable,
ratably among the Lenders in accordance with the aggregate principal amount
owed to such Lender.
(c) If any Lender (a "NON-FUNDING LENDER") has (x) failed to make a
Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Revolving Credit Loan or (y) given notice to the Company or the Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loan, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, or otherwise, (i) any payment made on account of the principal
of the Revolving Credit Loans outstanding shall be made as follows:
(A) in the case of any such payment made on any date when and to the
extent that, in the determination of the Administrative Agent, the Company
would be able, under the terms and conditions hereof, to reborrow the
amount of such payment under the Commitments and to satisfy any applicable
conditions precedent set forth in Section 6 to such reborrowing, such
payment shall be made on account of the outstanding Revolving Credit Loans
held by the Lenders other than the Non-Funding Lender PRO RATA according to
the respective outstanding principal amounts of the Revolving Credit Loans
of such Lenders; and
(B) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Lenders PRO RATA according
to the respective outstanding principal amounts of such Revolving Credit
Loans; and
(ii) any payment made on account of interest on the Revolving Credit Loans shall
be made PRO RATA according to the respective amounts of accrued and unpaid
interest due and payable on the
43
Revolving Credit Loans with respect to which such payment is being made. The
Company agrees to give the Administrative Agent such assistance in making any
determination pursuant to subparagraph (i)(A) of this paragraph as the
Administrative Agent may reasonably request. The Administrative Agent shall
notify the Lenders of any such determination, which shall be conclusive and
binding on the Lenders.
(d) All payments (including prepayments) to be made by the Company on
account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent, for the account of
the Lenders at the Administrative Agent's office located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in lawful money of the United States of America and in
immediately available funds. The Administrative Agent shall promptly distribute
such payments in accordance with the provisions of subsection 4.9(b) promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on Eurodollar Loans) would become due and payable on a day other than a
Business Day, such payment shall become due and payable on the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day (and
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension), unless the result of such extension
would be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Business Day.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount which would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent in
accordance with subsection 4.1 and the Administrative Agent may, in reliance
upon such assumption, make available to the Company thereof a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this subsection 4.9(e) shall be conclusive, absent
manifest error. If such Lender's Commitment Percentage of such borrowing is not
in fact made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to Alternate Base Rate Loans hereunder, on demand, from the Company,
without prejudice to any rights which the Company or the Administrative Agent
may have against such Lender hereunder. Nothing contained in this subsection
4.9 shall relieve any Lender which has failed to make available its ratable
portion of any borrowing hereunder from its obligation to do so in accordance
with the terms hereof.
(f) The failure of any Lender to make the Loan to be made by it on any
Borrowing Date shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on such Borrowing Date.
44
(g) All payments and optional prepayments (other than prepayments as
set forth in subsection 4.11 with respect to increased costs) of Eurodollar
Loans hereunder shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Loans with the same Interest Period shall not be less than $2,000,000
or a whole multiple of $1,000,000 in excess thereof.
4.10 ILLEGALITY. Notwithstanding any other provision herein, if any
Change in Law occurring after the date that any lender becomes a Lender party to
this Agreement, shall make it unlawful for such Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, the commitment of such
Lender hereunder to make Eurodollar Loans or to convert all or a portion of
Alternate Base Rate Loans into Eurodollar Loans shall forthwith be suspended
until such time, if any, as such illegality shall no longer exist and such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans for the duration of the respective
Interest Periods (or, if permitted by applicable law, at the end of such
Interest Periods) and all payments of principal which would otherwise be applied
to such Eurodollar Loans shall be applied instead to such Lender's Alternate
Base Rate Loans. The Company hereby agrees to pay any Lender, promptly upon its
demand, any amounts payable pursuant to subsection 4.12 in connection with any
conversion in accordance with this subsection 4.10 (such Lender's notice of such
costs, as certified in reasonable detail as to such amounts to the Company
through the Administrative Agent, to be conclusive absent manifest error).
4.11 REQUIREMENTS OF LAW. (a) In the event that any Change in Law or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority
occurring after the Effective Date as to Lenders party hereto as of such date,
and otherwise after the date that any lender becomes a Lender party to this
Agreement:
(i) does or shall subject any such Lender or its Eurodollar Lending
Office to any tax of any kind whatsoever with respect to this Agreement,
any Note or any Eurodollar Loans made by it, or change the basis of
taxation of payments to such Lender or its Eurodollar Lending Office of
principal, the commitment fee, interest or any other amount payable
hereunder (except for (x) net income and franchise taxes imposed on the net
income of such Lender or its Eurodollar Lending Office by the jurisdiction
under the laws of which such Lender is organized or any political
subdivision or taxing authority thereof or therein, or by any jurisdiction
in which such Lender's Eurodollar Lending Office is located or any
political subdivision or taxing authority thereof or therein, including
changes in the rate of tax on the overall net income of such Lender or such
Eurodollar Lending Office, and (y) taxes resulting from the substitution of
any such system by another system of taxation, PROVIDED that the taxes
payable by Lenders subject to such other system of taxation are not
generally charged to borrowers from such Lenders having loans or advances
bearing interest at a rate similar to the Eurodollar Rate);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Lender which are not otherwise included in the
determination of the Eurodollar Rate; or
45
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender or
its Eurodollar Lending Office of making, converting, renewing or maintaining
advances or extensions of credit or to reduce any amount receivable hereunder,
in each case, in respect of its Eurodollar Loans, then, in any such case, the
Company shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such Lender
with respect to such Eurodollar Loans, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the Alternate Base Rate plus 1%.
(b) In the event that any Change in Law occurring after the Effective
Date as to Lenders party hereto as of such date, and otherwise after the date
that any lender becomes a Lender party to this Agreement shall, with respect to
and in the opinion of such Lender, require that any Commitment of such Lender be
treated as an asset or otherwise be included for purposes of calculating the
appropriate amount of capital to be maintained by such Lender or any corporation
controlling such Lender, and such Change in Law shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital, as
the case may be, as a consequence of such Lender's obligations hereunder to a
level below that which such Lender or such corporation, as the case may be,
could have achieved but for such Change in Law (taking into account such
Lender's or such corporation's policies, as the case may be, with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time following notice by such Lender to the Company of such Change in
Law as provided in paragraph (c) of this subsection 4.11, within 15 days after
demand by such Lender, the Company shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such corporation, as the
case may be, for such reduction.
(c) The Company shall not be required to make any payments to any
Lender for any additional amounts pursuant to this subsection 4.11 unless such
Lender has given written notice to the Company, through the Administrative
Agent, of its intent to request such payments prior to or within 60 days after
the date on which such Lender became entitled to claim such amounts. If any
Lender has notified the Company through the Administrative Agent of any
increased costs pursuant to paragraph (a) of this subsection 4.11, the Company
at any time thereafter may, upon at least three Business Days' notice to the
Administrative Agent (which shall promptly notify the Lenders thereof), and
subject to subsection 4.12, prepay (or convert into Alternate Base Rate Loans)
all (but not a part) of the Eurodollar Loans then outstanding. Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
paragraph (a) of this subsection 4.11 with respect to such Lender, it will, if
requested by the Company and to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to avoid or minimize the increase
in costs or reduction in payments resulting from such event (including, without
limitation, endeavoring to change its Eurodollar Lending Office); PROVIDED,
HOWEVER, that such avoidance or minimization can be made in such a manner that
such Lender, in its sole determination, suffers no economic, legal or regulatory
disadvantage. If any Lender requests compensation from the Company under this
subsection 4.11, the Company may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter to make
or continue Loans of the Type with respect to which such compensation is
requested, or to convert Loans of any other Type into Loans of such Type, until
46
the Requirement of Law giving rise to such request ceases to be in effect,
PROVIDED that such suspension shall not affect the right of such Lender to
receive the compensation so requested.
(d) Each Lender that is not a United States Person (as defined in
Section 7701(a)(30) of the Code) for federal income tax purposes either (1) in
the case of a Lender that is a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (i) represents to the Company (for the benefit of the Company and
the Administrative Agent) that under applicable law and treaties no taxes are
required to be withheld by the Company or the Administrative Agent with respect
to any payments to be made to such Lender in respect of the Loans or the L/C
Participating Interests, (ii) agrees to furnish to the Company, with a copy to
the Administrative Agent, either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Lender claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) agrees (for the benefit of the Company and the
Administrative Agent), to the extent it may lawfully do so at such times, to
provide the Company, with a copy to the Administrative Agent, a new Form 4224 or
Form 1001 upon the expiration or obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Lender, and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption or (2) in the case of a Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i)
represents to the Company (for the benefit of the Company and the Administrative
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agrees to furnish to the Company, with a copy to the Administrative
Agent, (A) a certificate substantially in the form of Exhibit L hereto (any such
certificate, a "SUBSECTION 4.11(d)(2) CERTIFICATE") and (B) two accurate and
complete original signed copies of Internal Revenue Service Form W-8, certifying
to such Lender's legal entitlement at the Effective Date to an exemption from
U.S. withholding tax under the provisions of Section 881(c) of the Code with
respect to all payments to be made under this Agreement, and (iii) agrees, to
the extent legally entitled to do so, upon reasonable request by the Company, to
provide to the Company (for the benefit of the Company and the Administrative
Agent) such other forms as may be required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments under this Agreement. Notwithstanding any provision of this subsection
4.11 to the contrary, the Company shall have no obligation to pay any amount to
or for the account of any Lender (or the Eurodollar Lending Office of any
Lender) on account of any taxes pursuant to this subsection 4.11, to the extent
that such amount results from (i) the failure of any Lender to comply with its
obligations pursuant to this subsection 4.11, (ii) any representation or
warranty made or deemed to be made by any Lender pursuant to this subsection
4.11(d) proving to have been incorrect, false or misleading in any material
respect when so made or deemed to be made or (iii) any Change in Law or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, the
effect of which would be to subject to any taxes any payment made pursuant to
this Agreement to any Lender making the representation and covenants set forth
in subsection 4.11(d)(2), which payment would not be subject to such taxes were
such Lender eligible to make and comply with, and actually made and complied
with, the representation and covenants set forth in subsection 4.11(d)(1)
hereinabove.
(e) A certificate in reasonable detail as to any amounts submitted by
such Lender, through the Administrative Agent, to the Company, shall be
conclusive in the absence of manifest
47
error. The covenants contained in this subsection 4.11 shall survive the
termination of this Agreement and repayment of the Loans.
4.12 INDEMNITY. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss or expense (but without duplication of
any amounts payable as default interest) which such Lender may sustain or incur
as a consequence of (a) default by the Company in payment of the principal
amount of or interest on any Eurodollar Loans of such Lender, including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder, (b) default by the Company in making a borrowing
after the Company has given a notice in accordance with subsection 4.1 or in
making a conversion of Alternate Base Rate Loans to Eurodollar Loans or in
continuing Eurodollar Loans as such, in either case, after the Company has given
notice in accordance with subsection 4.2, (c) default by the Company in making
any prepayment after the Company has given a notice in accordance with
subsection 4.4 or (d) a payment or prepayment of a Eurodollar Loan or conversion
(including without limitation, a conversion pursuant to subsection 4.10) of any
Eurodollar Loan into an Alternate Base Rate Loan, in either case on a day which
is not the last day of an Interest Period with respect thereto, including, but
not limited to, any such loss or expense arising from interest or fees payable
by such Lender to lenders of funds obtained by it in order to maintain its
Eurodollar Loans hereunder (but excluding loss of profit). This covenant shall
survive termination of this Agreement and repayment of the Loans.
4.13 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Company hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender (i) the then unpaid principal amount of each Revolving Credit Loan
of such Lender on the Revolving Credit Termination Date, (ii) the principal
amount of the Term Loan of such Lender, in twelve consecutive installments,
payable on each Installment Payment Date (or the then unpaid principal amount of
such Term Loan, or the date that the Term Loans become due and payable pursuant
to Section 9 and on the Maturity Date and (iii) the then unpaid principal amount
of the Swing Line Loans of the Swing Line Lender on the Revolving Credit
Termination Date. The Company hereby further agrees to pay interest on the
unpaid principal amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in subsection 4.5.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan and Term Loan made
hereunder, the Type thereof and each Interest Period applicable thereto, (ii)
the amount of any principal or interest due and payable or to become due and
payable from the Company to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the Company and each
Lender's share thereof.
48
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 4.13(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Company therein recorded; PROVIDED, HOWEVER, that the failure
of any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the Loans made to such Company
by such Lender in accordance with the terms of this Agreement.
(e) The Company agrees that, upon the request to the Administrative
Agent by any Lender, the Company will execute and deliver to such Lender (i) a
promissory note of the Company evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A with appropriate insertions as to
date and principal amount (a "REVOLVING CREDIT NOTE"), and/or (ii) a promissory
note of the Company evidencing the Term Loan of such Lender, substantially in
the form of Exhibit B with appropriate insertions as to date and principal
amount (a "TERM LOAN NOTE"), and/or (iii) in the case of the Swing Line Lender,
a promissory note of the Company evidencing the Swing Line Loans of the Swing
Line Lender, substantially in the form of Exhibit C with appropriate insertions
as to date and principal amount (the "SWING LINE NOTE ").
4.14 INTEREST RATE PROTECTION. Within 60 days of the Closing Date,
the Company shall have purchased or shall have entered into Interest Rate
Agreements or a series thereof in each case having an effective specified
maximum rate of interest and other terms and with parties satisfactory to the
Administrative Agent and the Managing Agents, jointly, providing to the Company
such effective specified maximum rate of interest on no less than $80,000,000 of
the aggregate principal amount of the Loans that will be outstanding from time
to time during the 24 month period following the date of acquisition of such
hedging agreements, and the Company agrees and confirms that the Company
Security Agreement grants to the Collateral Agent, for benefit of the Lenders, a
first priority perfected security interest (subject to Permitted Liens) in its
rights under such interest rate hedging arrangements. If any such Interest Rate
Agreement shall be entered into with a Hedge Lender, intercreditor arrangements
shall have been entered into between such Hedge Lender and the Administrative
Agent and Collateral Agent, satisfactory to the Administrative Agent and the
Collateral Agent, prior to such Hedge Lender obtaining any Lien on or rights in
any of the Collateral under the Security Agreements.
4.15 REPLACEMENT OF LENDERS. In the event any Lender or the Issuing
Lender exercises its rights pursuant to subsection 4.10 or requests payments
pursuant to subsections 3.10 or 4.11, the Company may require, at the Company's
expense and subject to subsection 4.12, such Lender or the Issuing Lender to
assign, at par plus accrued interest and fees, without recourse (in accordance
with subsection 11.6) all of its interests, rights and obligations hereunder
(including all of its Commitments and the Loans and other amounts at the time
owing to it hereunder and its Notes and its interest in the Letters of Credit)
to a bank, financial institution or other entity specified by the Company,
PROVIDED that (i) such assignment shall not conflict with or violate any law,
rule or regulation or order of any court or other Governmental Authority, (ii)
the Company shall have received the written consent of the Administrative Agent,
which consent shall not unreasonably be withheld, to such assignment, (iii) the
Company shall have paid to the assigning Lender or the Issuing Lender all monies
other than principal, interest and fees accrued and owing hereunder to it
(including pursuant to subsections 3.10, 4.10 and 4.11) and (iv) in the
49
case of a required assignment by the Issuing Lender, the Letters of Credit shall
be canceled and returned to the Issuing Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to
make the Loans and to induce the Issuing Lender to issue, and the Participating
Lenders to participate in, the Letters of Credit, the Company hereby represents
and warrants to each Lender and the Administrative Agent, as of the Effective
Date and as of the making of any extension of credit hereunder:
5.1 FINANCIAL CONDITION. (a) The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at December 31, 1995 and the
related consolidated statement of operations for the fiscal year ended on such
date, audited by Coopers & Xxxxxxx LLP, a copy of which has heretofore been
furnished to each Lender, present fairly in accordance with GAAP the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. All such
financial statements have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Contingent Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any material interest rate or foreign
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto or expressly permitted to be incurred
hereunder.
(b) The unaudited consolidated balance sheets of the Company as at
June 30, 1996, certified by a Responsible Officer of the Company, copies of
which have heretofore been furnished to each Lender, present fairly in
accordance with GAAP the financial position of the Company and its consolidated
Subsidiaries as at such dates. Such balance sheets, including the related
schedules and notes thereto, have been prepared in accordance with GAAP (except
as approved by such Responsible Officer and disclosed therein). The Company and
its consolidated Subsidiaries did not have at the date of such balance sheets,
any material Contingent Obligation, contingent liability or liability for taxes,
or any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency exchange transaction,
which is not reflected in such balance sheets or in the notes thereto. During
the period from December 31, 1995 to the Effective Date, no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Company or any of its consolidated Subsidiaries except as permitted under the
Existing Credit Agreement, nor has any of the Capital Stock of the Company or
any of its consolidated Subsidiaries been redeemed, retired, purchased or
otherwise acquired for value by the Company or any of its consolidated
Subsidiaries, respectively.
(c) The unaudited consolidated PRO FORMA balance sheet of the Company
and its consolidated Subsidiaries as at June 30, 1996, certified by a
Responsible Officer of the Company (the "PRO FORMA BALANCE SHEET"), a copy of
which has heretofore been furnished to each Lender, is the unaudited balance
sheet of the Company and its consolidated Subsidiaries, adjusted to give
50
effect (as if such events had occurred on such date) to (i) the IPO, (ii) the
extension of the Loans and the issuance of the Letters of Credit to be incurred
or issued, as the case may be, on the Effective Date, (iii) the prepayment by
Holdings of indebtedness in the principal amount of $10,000,000 (plus a $350,000
redemption premium), (iv) the contribution by Holdings to the Company of
preferred stock, (v) the sale by the Company of one or more shares of the
Company's Capital Stock to Holdings, (vi) the redemption by the Company, from
the proceeds of the sale of its Capital Stock to Holdings, of approximately
$33,300,000 of the Company's outstanding 12.75% Subordinated Notes, due March 1,
2005, for $37,500,000 (including the redemption premium), and (vii) the
prepayment by the Company of a portion of the Revolving Credit Loans without
reducing the Commitments. The Pro Forma Balance Sheet, together with the notes
thereto, was prepared based on good faith assumptions in accordance with GAAP
and is based on the best information available to the Company and its
consolidated Subsidiaries as of the date of delivery thereof, and reflects on a
PRO FORMA basis the financial position of the Company and its consolidated
Subsidiaries as of September 30, 1996, as adjusted, as described above, assuming
that the events specified in the preceding sentence had actually occurred at
September 30, 1996.
5.2 NO CHANGE. Since June 30, 1996 (before and after giving effect to
the transactions described in subsection 5.1(c)) (a) there has been no change
and, (as of the Effective Date only) no development or event involving a
prospective change, which has had or could reasonably be expected to have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole and (b) no dividends or other distributions have been declared, paid or
made upon the Capital Stock of the Company nor has any of the Capital Stock of
the Company been redeemed, retired, repurchased or otherwise acquired for value
by the Company or any of its Subsidiaries, except as permitted by subsection
8.11.
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Company and
its Subsidiaries (a) is a corporation duly organized and validly existing under
the laws of the jurisdiction of its incorporation, (b) has full corporate power
and authority and possesses all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to use its corporate name
and to own, lease or otherwise hold its properties and assets and to carry on
its business as presently conducted other than such franchises, licenses,
permits, authorizations and approvals the lack of which, individually or in the
aggregate, would not have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, (c) is duly qualified and in good standing
to do business in each jurisdiction in which the nature of its business or the
ownership, leasing or holding of its properties makes such qualification
necessary, except such jurisdictions where the failure so to qualify would not
have a material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole, and (d) except as disclosed in the Environmental Audit, is in
compliance with all applicable statutes, laws, ordinances, rules, orders,
permits and regulations of any governmental authority or instrumentality,
domestic or foreign (including, without limitation, those related to Hazardous
Materials and substances), except where noncompliance would not have a material
adverse effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a whole.
Except as disclosed in the Environmental Audit, none of the Company or any of
its Subsidiaries has received any written communication from a Governmental
Authority that alleges that the Company or any of its
51
Subsidiaries is not in compliance, in all material respects, with all material
federal, state, local or foreign laws, ordinances, rules and regulations.
5.4 CORPORATE POWER; AUTHORIZATION. Each of the Company and its
Subsidiaries has the corporate power and authority to make, deliver and perform
each of the Credit Documents to which it is a party, and the Company has the
corporate power and authority and legal right to borrow hereunder and to have
Letters of Credit issued for its account hereunder. Each of the Company and its
Subsidiaries has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the Credit Documents to which it
is or will be a party and the Company has taken all necessary corporate action
to authorize the borrowings hereunder and the issuance of Letters of Credit for
its account hereunder. No consent or authorization of, or filing with, any
Person (including, without limitation, any Governmental Authority) is required
in connection with the execution, delivery or performance by the Company or any
of its Subsidiaries, or for the validity or enforceability against the Company
or any of its Subsidiaries, of any Credit Document except for consents,
authorizations and filings which have been obtained or made and are in full
force and effect and except (i) such consents, authorizations and filings, the
failure to obtain or perform (x) which would not have a material adverse effect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole and (y) which
would not adversely affect the validity or enforceability of any of the Credit
Documents or the rights or remedies of the Administrative Agent, the Collateral
Agent or the Lenders thereunder and (ii) such filings as are necessary to
perfect the Liens of the Lenders created pursuant to this Agreement and the
Security Documents.
5.5 ENFORCEABLE OBLIGATIONS. This Agreement and each of the other
Credit Documents have been duly executed and delivered on behalf of any Credit
Party that is party thereto. This Agreement and each of the other Credit
Documents constitute the legal, valid and binding obligation of such Credit
Party, and is enforceable against such Credit Party in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
5.6 NO LEGAL BAR. The execution, delivery and performance of each
Credit Document, the incurrence or issuance of and use of the proceeds of the
Loans and of drawings under the Letters of Credit and the Credit Documents (a)
will not violate any Requirement of Law or any Contractual Obligation applicable
to or binding upon the Company or any Subsidiary of the Company or any of their
respective properties or assets, in any manner which, individually or in the
aggregate, (i) would have a material adverse effect on the ability of the
Company or any such Subsidiary to perform its obligations under the Credit
Documents (ii) would give rise to any liability on the part of the
Administrative Agent, the Collateral Agent or any Lender or (iii) would have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole, and (b) will not result in the creation or imposition of any Lien on
any of its properties or assets pursuant to any Requirement of Law applicable to
it, as the case may be, or any of its Contractual Obligations, except for the
Liens arising under the Security Documents.
5.7 NO MATERIAL LITIGATION. No litigation by, investigation known to
the Company by, or proceeding of, any Governmental Authority is pending against
the Company or any of its
52
Subsidiaries with respect to the validity, binding effect or enforceability of
any Credit Document, the Loans made hereunder, the use of proceeds thereof or of
any drawings under a Letter of Credit. No lawsuits, claims, proceedings or
investigations pending or, to the best knowledge of the Company, threatened as
of the Effective Date against or affecting the Company or any Subsidiary of the
Company or any of their respective properties, assets, operations or businesses,
in which there is a probability of an adverse determination, is reasonably
likely, if adversely decided, to have a material adverse effect on the business,
assets, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole.
5.8 INVESTMENT COMPANY ACT. Neither the Company nor any Subsidiary of
the Company is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
5.9 FEDERAL REGULATION. No part of the proceeds of any of the Loans
or any drawing under a Letter of Credit will be used for any purpose which
violates the provisions of Regulation G, T, U or X of the Board. Neither the
Company nor any of its Subsidiaries is engaged or will engage, principally or as
one of its important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under said Regulation U.
5.10 NO DEFAULT. The Company and each of its Subsidiaries have
performed all material obligations required to be performed by them under their
respective Contractual Obligations and they are not (with or without the lapse
of time or the giving of notice, or both) in breach or default in any respect
thereunder, except to the extent that such breach or default would not have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole. Neither the Company nor any of its Subsidiaries is in default under
any material judgment, order or decree of any Governmental Authority domestic or
foreign, applicable to it or any of its respective properties, assets,
operations or business, except to the extent that any such defaults would not,
in the aggregate, have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries taken as a whole.
5.11 TAXES. Each of the Company and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the best knowledge of the
Company, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves (or other sufficient provisions) in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the best knowledge of the
Company, no written claim is being asserted, with respect to any such taxes,
fees or other charges.
5.12 SUBSIDIARIES. As of the Effective Date, after giving effect to
the consummation of the IPO, the only Subsidiary of the Company is Prime
Equipment. As of the Effective Date, Prime Equipment is an inactive Subsidiary
and the aggregate value of its assets does not exceed $50,000.
53
5.13 OWNERSHIP OF PROPERTY; LIENS. As of the Effective Date and as of
the making of any extension of credit hereunder (subject to transfers and
dispositions of property permitted under subsection 8.5) each of the Company and
its Subsidiaries has good and valid title to all of its material assets (other
than real property or interests in real property) in each case free and clear of
all mortgages, liens, security interests or encumbrances of any nature
whatsoever except Permitted Liens. With respect to real property or interests
in real property, as of the Effective Date, each of the Company and its
Subsidiaries has (i) fee title to all of the real property listed on Schedule
5.13 under the heading "Fee Properties" (each, a "FEE PROPERTY"), and (ii) good
and valid title to the leasehold estates in all of the real property leased by
it and listed on Schedule 5.13 under the heading "Leased Properties" (each, a
"LEASED PROPERTY"), in each case free and clear of all mortgages, liens,
security interests, easements, covenants, rights-of-way and other similar
restrictions of any nature whatsoever, except (A) Permitted Liens, (B) any
conditions that may be shown by a current, accurate survey or physical
inspection of any Fee Property or Leased Property, (C) as to Leased Property,
the terms and provisions of the respective lease therefor and any matters
affecting the fee title and any estate superior to the leasehold estate related
thereto, and (D) title defects, or leases or subleases granted to others, which
are not material to the Fee Properties or the Leased Properties, as the case may
be, taken as a whole. The Fee Properties and the Leased Properties constitute,
as of the Effective Date, all of the real property owned in fee or leased by the
Company and its Subsidiaries.
5.14 ERISA. The "amount of unfunded benefit liabilities" (within the
meaning of Section 4001(a)(18) of ERISA) of any Plan of the Company or any
Commonly Controlled Entity would not result in a material liability to the
Company if any or all such Plans were terminated. None of the Company, any
Subsidiary of the Company or any Commonly Controlled Entity would be liable for
any amount pursuant to Sections 4063, 4064 or 4069 of ERISA, if any Single
Employer Plan were to terminate. Neither the Company nor any Commonly
Controlled Entity has been involved in any transaction that would cause the
Company to be subject to material liability with respect to a Plan to which the
Company or any Commonly Controlled Entity contributed or was obligated to
contribute during the six-year period ending on the date this representation is
made or deemed made under Sections 4062, 4069 or 4212(c) of ERISA. Neither the
Company nor any Commonly Controlled Entity has incurred any material liability
under Title IV of ERISA which could become or remain a material liability of the
Company after the Closing Date and the consummation of the Acquisition. None of
the Company, any Subsidiary of the Company, or any director, officer or employee
thereof, or any of the Plans (to the best knowledge of the Company with respect
to any Multiemployer Plan), or any trust created thereunder, or any fiduciary
thereof, has engaged in a transaction or taken any other action or omitted to
take any action involving any Plan which could constitute a prohibited
transaction within the meaning of Section 406 of ERISA which is not otherwise
exempted and which would result in a material liability to the Company, or would
cause the Company to be subject to either a material liability or material civil
penalty assessed pursuant to Sections 409 or 502(i) or (l) of ERISA or a
material tax imposed pursuant to Sections 4975 or 4976 of the Code. Each of the
Plans (to the best knowledge of the Company with respect to any Multiemployer
Plan) has been operated and administered in all material respects in accordance
with applicable laws, including but not limited to ERISA and the Code. There
are no material pending or, to the best knowledge of the Company, threatened
claims by or on behalf of any of the Plans or any fiduciary, by any employee or
beneficiary covered under any such Plan, or otherwise involving any such Plan or
fiduciary for which the Company could have any material liability (other than
routine claims for benefits). No condition exists and no event has occurred
with respect to any Multiemployer Plan
54
which presents a material risk of a complete or partial withdrawal under
Subtitle E of Title IV of ERISA for which the Company could have any material
liability, nor has the Company or any Commonly Controlled Entity been notified
that any such Multiemployer Plan is insolvent or in reorganization within the
meaning of Section 4241 of ERISA. Neither the Company nor any Commonly
Controlled Entity nor any Subsidiary has been a party to any transaction or
agreement to which the provisions of Section 4204 of ERISA were applicable (a
"4204 AGREEMENT"). None of the Company, or any Commonly Controlled Entity or
any of their respective Subsidiaries is obligated to contribute to a
Multiemployer Plan, on behalf of any current or former employee of the Company,
any Commonly Controlled Entity or such Subsidiary. The liability to which the
Company, any Commonly Controlled Entity or any of their respective Subsidiaries
would become subject under ERISA if all such Persons were to withdraw completely
from all Plans on the Closing Date (after giving effect to the Acquisition) is
not in excess of $2,000,000. None of the Plans or any trust established
thereunder has incurred any "accumulated funding deficiency" (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of
the last day of the most recent fiscal year of each of the Plans. No
contribution failure has occurred with respect to any Plan sufficient to give
rise to a lien under Section 302(f) of ERISA.
5.15 COLLATERAL DOCUMENTS. (a) Each of the Pledge Agreements is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Lenders, a legal, valid and enforceable security interest in the pledged
stock described therein and, when stock certificates representing or
constituting the pledged stock described in each of the Pledge Agreements are
delivered to the Collateral Agent, such security interest shall, subject to the
existence of Permitted Liens, constitute a perfected first lien on, and security
interest in, all right, title and interest of the pledgor party thereto in the
pledged stock described therein.
(b) Each of the Security Agreements is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Lenders, a legal, valid and
enforceable security interest in the collateral described therein and Uniform
Commercial Code financing statements have been filed in each of the
jurisdictions listed on Schedule 5.15(b), or arrangements have been made for
such filing in such jurisdictions, and upon such filing, and upon the taking of
possession by the Collateral Agent of any such collateral the security interests
in which may be perfected only by possession, such security interests will,
subject to the existence of Permitted Liens, constitute perfected first liens
on, and security interests in, all right, title and interest of the debtor party
thereto in the collateral described therein, except to the extent that a
security interest cannot be perfected therein by the filing of a financing
statement or the taking of possession under the Uniform Commercial Code of the
relevant jurisdiction.
(c) Each Mortgage is effective to create in favor of the Collateral
Agent, for the ratable benefit of the Lenders, a legal, valid and enforceable
security interest in the collateral described therein, and upon filing the
Mortgages in the jurisdictions listed on Schedule 5.13 (or, in the case of a
Mortgage delivered pursuant to subsection 7.9, the jurisdiction in which the
property covered by such Mortgage is located), such security interests will,
subject to the existence of Permitted Liens, constitute perfected first liens
on, and security interests in, all right, title and interest of the debtor party
thereto in the collateral described therein.
5.16 COPYRIGHTS, PERMITS, TRADEMARKS AND LICENSES. Schedule 5.16 sets
forth a true and complete list of all material trademarks (registered or
unregistered), trade names, service marks and copyrights and applications
therefor owned, used or filed by or licensed to the
55
Company and its Subsidiaries and, with respect to registered trademarks (if
any), contains a list of all jurisdictions in which such trademarks are
registered or applied for and all registration and application numbers. Except
as disclosed on Schedule 5.16, the Company or a Subsidiary owns or has the right
to use, without payment to any other party, trademarks (registered or
unregistered), trade names, service marks, copyrights and applications therefor
referred to in such Schedule. To the best knowledge of the Company, no claims
are pending by any Person with respect to the ownership, validity,
enforceability or the Company's or any Subsidiary's use of any such trademarks
(registered or unregistered), trade names, service marks, copyrights, or
applications therefor, challenging or questioning the validity or effectiveness
of any of the foregoing, in any jurisdiction, domestic or foreign.
5.17 ENVIRONMENTAL MATTERS. (a) Except as set forth in the
Environmental Audit, to the best knowledge of the Company, the Mortgaged
Properties do not contain, and have not previously contained, in, on or under
including, without limitation, the soil and groundwater thereunder, any
Hazardous Materials in amounts or concentrations that constitute or constituted
a material violation of, or could reasonably give rise to material liability
under, Environmental Laws.
(b) Except as set forth in the Environmental Audit, to the best
knowledge of the Company, the Mortgaged Properties and all operations and
facilities at the Mortgaged Properties are in material compliance with all
Environmental Laws, and there is no contamination or violation of any
Environmental Law which could materially interfere with the continued operation
of, or materially impair the fair saleable value of, the Mortgaged Property.
(c) Except as set forth in the Environmental Audit, to the best
knowledge of the Company, neither the Company nor any of its Subsidiaries has
received or is aware of any complaint, notice of violation, alleged violation,
or notice of investigation or of potential liability under Environmental Laws
with regard to the Mortgaged Properties or the operations of the Company or its
Subsidiaries, nor does the Company or any of its Subsidiaries have knowledge
that any such action is being contemplated, considered or threatened.
(d) Except as set forth in the Environmental Audit, to the best
knowledge of the Company, Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under the Mortgaged Property, nor have any
Hazardous Materials been transported from the Mortgaged Property, in material
violation of or in a manner that could reasonably give rise to material
liability under any Environmental Laws.
(e) Except as set forth in the Environmental Audit, there are no
governmental administrative actions or judicial proceedings pending or, to the
best knowledge of the Company and its Subsidiaries, threatened, under any
Environmental Law to which the Company or any of its Subsidiaries is a party
with respect to the Mortgaged Property, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements, other than permits authorizing
operations at facilities at the Mortgaged Property, outstanding under any
Environmental Law with respect to the Mortgaged Property.
(f) Each of the representations and warranties set forth in subsection
5.17(a) through (e) is true and correct with respect to each parcel of real
property owned or operated by
56
the Company or any of its Subsidiaries (other than the Mortgaged Properties),
except to the extent that the facts and circumstances giving rise to any such
failure to be so true and correct would not have any reasonable likelihood of
having a material adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of the Company and its Subsidiaries taken
as a whole.
5.18 ACCURACY AND COMPLETENESS OF INFORMATION. The factual statements
contained in the financial statements referred to in subsection 5.1(a), the
Credit Documents and any other certificates or documents furnished or to be
furnished to the Administrative Agent, the Collateral Agent or the Lenders from
time to time in connection with this Agreement, taken as a whole, do not and
will not, to the best knowledge of the Company, as of the date when made,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading in
light of the circumstances in which the same were made, all except as otherwise
qualified herein or therein, such knowledge qualification being given only with
respect to factual statements made by Persons other than the Company or any of
its Subsidiaries.
SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO INITIAL LOANS AND LETTERS OF CREDIT. The obligation
of each Lender to make its Loans and the obligation of the Issuing Lender to
issue any Letter of Credit on the Effective Date are subject to the
satisfaction, or waiver by such Lender, of the following conditions on or prior
to November 29, 1996 (the date on which such conditions are so satisfied or
waived, the "EFFECTIVE DATE"):
(a) AGREEMENT; NOTES. The Administrative Agent shall have received
(w) a counterpart of this Agreement for each Lender duly executed and
delivered by a duly authorized officer of the Company, (x) for the account
of each Revolving Credit Lender requesting the same pursuant to subsection
4.13, a Revolving Credit Note of the Company conforming to the requirements
hereof and executed by a duly authorized officer of the Company, (y) for
the account of each Lender holding a Term Loan and requesting the same
pursuant to subsection 4.13, a Term Loan Note of the Company conforming to
the requirements hereof and executed by a duly authorized officer of the
Company, and (z) for the account of Chase, a Swing Line Note, conforming to
the requirements hereof and executed by a duly authorized officer of the
Company.
(b) IPO. The IPO shall have been consummated for aggregate gross
proceeds to Holdings of at least $150,000,000, of which at least
$80,000,000 shall be applied to prepay the Revolving Credit Loans in
accordance with subsection 4.4(b)(iv)(A) without permanently reducing such
Revolving Credit Commitments.
(c) FEES. The Administrative Agent, the Collateral Agent and the
Lenders shall have received all fees, expenses and other consideration
required to be paid or delivered and presented for payment on or before the
Effective Date.
(d) LEGAL OPINIONS. The Administrative Agent shall have received,
dated the Effective Date and addressed to the Administrative Agent, the
Collateral Agent and the
57
Lenders, an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to Holdings and
the Company, in substantially the form of Exhibit K-2 with such changes
thereto as may be approved by the Administrative Agent and its counsel.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(e) CLOSING CERTIFICATE. The Administrative Agent shall have received
a Closing Certificate of the Company and Holdings dated the Effective Date,
in substantially the form of Exhibits M-1 and M-2, respectively, with
appropriate insertions and attachments, in form and substance satisfactory
to the Administrative Agent and its counsel, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of the
Company and Holdings, respectively.
(f) CONSENTS, AUTHORIZATIONS AND FILINGS, ETC. Except for the
financing statements contemplated by the Company Security Agreement and the
Mortgages, and the filing of the Mortgages, all consents, authorizations
and filings, if any, required in connection with the execution, delivery
and performance by Holdings or the Company, and the validity and
enforceability against Holdings and the Company, of the Credit Documents to
which any of them is a party, shall have been obtained or made, and such
consents, authorizations and filings shall be in full force and effect,
except such consents, authorizations and filings, the failure to obtain
which would not have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company
and its Subsidiaries, taken as a whole.
6.2 CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. The obligation of
each Lender to make any Loan (other than any Revolving Credit Loan the proceeds
of which are to be used to repay Refunded Swing Line Loans) and the obligation
of the Issuing Lender to issue any Letter of Credit is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date including the Effective Date:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made in or pursuant to Section 5 or which are contained in any
other Credit Document shall be true and correct in all material respects on
and as of the date of such Loan or of the issuance of such Letter of Credit
as if made on and as of such date (unless stated to relate to a specific
earlier date, in which case, such representations and warranties shall be
true and correct in all material respects as of such earlier date).
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing on such Borrowing Date or after
giving effect to such Loan to be made or such Letter of Credit to be issued
on such Borrowing Date.
(c) CERTIFICATE. The Administrative Agent shall have received, with a
copy for each Lender, a certificate of a Responsible Officer of the Company
to the effect that the applicable statements contained in paragraphs (a)
and (b) above are true and correct as at the Borrowing Date.
Each borrowing by the Company hereunder and the issuance of each Letter of
Credit by the Issuing Lender hereunder shall constitute a representation and
warranty by the Company as of
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the date of such borrowing or issuance that the conditions in clauses (a) and
(b) and of this subsection 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan, Note or L/C Obligation remains outstanding and unpaid, any
amount (unless cash in an amount equal to such amount has been deposited to a
cash collateral account established by the Collateral Agent) remains available
to be drawn under any Letter of Credit or any other amount is owing to any
Lender, the Administrative Agent or the Collateral Agent hereunder or under any
of the other Credit Documents, it shall, and, in the case of the agreements
contained in subsections 7.3 through 7.6, and 7.8 through 7.9, the Company shall
cause each of its Subsidiaries to:
7.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent (with
sufficient copies for each Lender which the Administrative Agent shall promptly
furnish to each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such fiscal year and the related consolidated statements of stockholders'
equity and cash flows and the consolidated statements of income of the
Company and its Subsidiaries for such fiscal year, setting forth in each
case (other than for the financial statements delivered with respect to the
first fiscal year of the Company ended following the Closing Date) in
comparative form the figures for the previous year and, in the case of the
consolidated balance sheet referred to above, reported on, without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, or qualification which would affect the
computation of financial covenants, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated balance sheet of the
Company and its Subsidiaries as at the end of each such quarter and the
related unaudited consolidated statements of income and cash flows of the
Company and its Subsidiaries for such quarterly period and the portion of
the fiscal year of the Company through such date, setting forth in each
case (other than for the financial statements delivered with respect to
fiscal quarters occurring during the first fiscal year of the Company ended
following the Closing Date) in comparative form the figures for the
corresponding quarter in, and year to date portion of, the previous year,
and the figures for such periods in the budget prepared by the Company and
furnished to the Administrative Agent, certified by the chief financial
officer, controller or treasurer of the Company as being fairly stated in
all material respects;
(c) concurrently with the delivery of financial statements pursuant to
subsection 7.1(a) or (b), a certificate of the chief financial officer of
the Company setting forth, in reasonable detail, the computations of
Consolidated EBITDA as of the last day of the fiscal period covered by such
financial statements, Capital Expenditures as of such last
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day, the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA
as of such last day and the Interest Coverage Ratio as of such last day;
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal year-end audit
adjustments) and to be prepared in reasonable detail and in accordance with
GAAP.
7.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Administrative
Agent (with sufficient copies for each Lender which the Administrative Agent
shall promptly deliver to each Lender):
(a) concurrently with the delivery of the consolidated financial
statements referred to in subsection 7.1(a), a letter from the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary to express their opinion on such
financial statements no knowledge was obtained of any Default or Event of
Default under subsections 4.4(b), 8.1, 8.3, and 8.6 through 8.11, except as
specified in such letter;
(b) within 15 days of the delivery of the financial statements
referred to in subsections 7.1(a) and (b) (except that the certificate
referred to in clause (i) below shall be delivered concurrently with such
financial statements), a certificate of the chief financial officer of the
Company (i) stating that, to the best of such officer's knowledge, each of
the Company and its Subsidiaries has observed or performed all of its
respective covenants and other agreements, and satisfied every material
condition, contained in this Agreement, the Notes and the other Credit
Documents to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except
as specified in such certificate, (ii) showing in detail as of the end of
the related fiscal period the figures and calculations supporting such
statement in respect of clause (e) of subsection 8.1, clauses (b) and (e)
of subsection 8.3, and subsections 8.7 through 8.12 and (iii) if not
specified in the financial statements delivered pursuant to subsection 7.1,
specifying the aggregate amount of interest paid or accrued by the Company
and its Subsidiaries, and the aggregate amount of depreciation, depletion
and amortization charged on the books of the Company and its Subsidiaries,
during such accounting period;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the Company or to any of its Subsidiaries by independent
certified public accountants in connection with each annual, interim or
special audit of the books of the Company or any of its Subsidiaries made
by such accountants, including, without limitation, any final comment
letter submitted by such accountants to management in connection with their
annual audit;
(d) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available to
the public generally by the Company or any of its Subsidiaries, if any, and
all regular and periodic reports and all final registration statements and
final prospectuses, if any, filed by the Company or any of its Subsidiaries
with any securities exchange or with the Securities and Exchange Commission
or any Governmental Authority succeeding to any of its functions;
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(e) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a management summary describing
and analyzing the performance of the Company and its Subsidiaries during
the periods covered by such financial statements;
(f) within 45 days after the end of each fiscal quarter, a summary of
all Asset Sales during such fiscal quarter including the amount of all Net
Proceeds from such Asset Sales not previously applied to prepayments of the
Loans and reductions of the Commitments pursuant to the proviso to
subsection 4.4(b)(ii);
(g) within 30 days after the end of each calendar month, a borrowing
base certificate calculating the Borrowing Base as of the last day in such
calendar month, substantially in the form of Exhibit N hereto (a "BORROWING
BASE CERTIFICATE"), executed by a Responsible Officer of the Borrower; and
(h) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations and liabilities of whatever nature, except (a) when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Company or any of its Subsidiaries, as the case may
be, (b) for delinquent obligations which do not have a material adverse affect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole and (c) for
trade and other accounts payable in the ordinary course of business which are
not overdue for a period of more than 90 days or, if overdue for more than 90
days, as to which (i) a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of the Company or any of its
Subsidiaries, as the case may be, or (ii) do not, in the aggregate, equal or
exceed $250,000.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to
engage in business of the same general type as now conducted by it, and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all material rights, material privileges,
franchises, copyrights, trademarks and trade names necessary or desirable in the
normal conduct of its business except for rights, privileges, franchises,
copyrights, trademarks and tradenames the loss of which would not in the
aggregate have a material adverse effect on the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole, and except as otherwise permitted by subsections
8.4 and 8.5; and comply with all applicable Requirements of Law except to the
extent that the failure to comply therewith would not, in the aggregate, have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole.
7.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all property useful
and necessary in its business in good working order and condition (ordinary wear
and tear excepted); and
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(b) Maintain with financially sound and reputable insurance companies
(x) insurance on all its property in at least such amounts and with only such
deductibles as are usually maintained by, and against at least such risks (but
including, in any event, public liability insurance) as are usually insured
against in the same general area, by companies engaged in the same or a similar
business and (y) the flood insurance, if any, required pursuant to subsection
7.9(b)(ii); and furnish to each Lender, (i) annually, a schedule disclosing (in
a manner substantially similar to that used in the schedule provided pursuant to
subsection 6.1(o) of the Existing Credit Agreement) all insurance against
products liability risk maintained by the Company and its Subsidiaries pursuant
to this subsection 7.5(b) or otherwise and (ii) upon written request of any
Lender, full information as to the insurance carried; PROVIDED that the Company
may implement programs of self insurance in the ordinary course of business and
in accordance with industry standards for a company of similar size so long as
reserves are maintained in accordance with GAAP for the liabilities associated
therewith.
7.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities
which permit financial statements to be prepared in conformity with GAAP and all
Requirements of Law; permit representatives of any Lender upon reasonable notice
(but no more frequently than monthly unless a Default or Event of Default shall
have occurred and be continuing), to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be requested upon reasonable notice, and to
discuss the business, operations, assets and financial and other condition of
the Company and its Subsidiaries with officers and employees thereof and with
their independent certified public accountants; and permit representatives of
the Collateral Agent upon reasonable notice to perform a collateral examination
in accordance with its customary practices at least once each fiscal year (which
collateral examination the Collateral Agent hereby agrees to perform).
7.7 NOTICES. Promptly give notice to the Administrative Agent, the
Collateral Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any instrument or
other agreement, guarantee or collateral document of the Company or any of
its Subsidiaries which default or event of default has not been waived and
would have a material adverse effect on the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole, or any other default or event of default
under any such instrument, agreement, guarantee or other collateral
document which, but for the proviso to clause (e) of Section 9, would have
constituted a Default or Event of Default under this Agreement, or (ii)
litigation, investigation or proceeding which may exist at any time between
the Company or any of its Subsidiaries and any Governmental Authority, or
receipt of any notice of any environmental claim or assessment against the
Company or any of its Subsidiaries by any Governmental Authority, which in
any such case would have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company
and its Subsidiaries taken as a whole;
62
(c) of any litigation or proceeding against the Company or any of its
Subsidiaries (i) in which more than $2,000,000 of the amount claimed is not
covered by insurance or (ii) in which injunctive or similar relief is
sought which if obtained would have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole;
(d) of the following events, as soon as practicable after, and in any
event within 30 days after, the Company knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any
Plan which Reportable Event could reasonably result in material liability
to the Company and its Subsidiaries taken as a whole or (ii) the
institution of proceedings or the taking of any other action by PBGC, the
Company or any Commonly Controlled Entity to terminate, withdraw or
partially withdraw from any Plan and, with respect to a Multiemployer Plan,
the Reorganization or Insolvency of the Plan, in each of the foregoing
cases which could reasonably result in material liability to the Company
and its Subsidiaries taken as a whole, and in addition to such notice,
deliver to the Administrative Agent, the Collateral Agent and each Lender
whichever of the following may be applicable: (A) a certificate of a
Responsible Officer of the Company setting forth details as to such
Reportable Event and the action that the Company or such Commonly
Controlled Entity proposes to take with respect thereto, together with a
copy of any notice of such Reportable Event that may be required to be
filed with PBGC or (B) any notice delivered by PBGC evidencing its intent
to institute such proceedings or any notice to PBGC that such Plan is to be
terminated, as the case may be;
(e) concurrently with the delivery of the information delivered
pursuant to subsection 7.2(f) and each prepayment required pursuant to
subsection 4.4(b)(ii), of any Asset Sale or substantially like-kind
exchange of real property by the Company or any of its Subsidiaries; and
(f) of a material adverse change known to the Company or its
Subsidiaries in the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries taken as a whole.
Each notice pursuant to this subsection 7.7 shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and (in the cases of clauses (a) through (d)) stating what
action the Company proposes to take with respect thereto.
7.8 ENVIRONMENTAL LAWS. (a) Comply with, and use all reasonable
efforts to insure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
require that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, registrations or permits required by Environmental
Laws, except to the extent that failure to do so would not have any reasonable
likelihood of having a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries taken as a whole or on the validity or enforceability of any of
the Credit Documents or the rights and remedies of the Administrative Agent, the
Collateral Agent or the Lenders thereunder;
63
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions, required under applicable
Environmental Laws, and promptly comply with all lawful orders and directives of
all Governmental Authorities respecting Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate proceedings; and
(c) In regard to this Agreement or in any way relating to the Company
or its Subsidiaries or their current or former operations, defend, indemnify and
hold harmless the Administrative Agent, the Collateral Agent and the Lenders,
and their respective employees, agents, officers and directors, from and against
any claims, demands, penalties, fines, liabilities, settlements, damages, costs
and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to Hazardous Material or
Environmental Laws, including, without limitation, any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, remediation costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this subsection 7.8(c) shall survive repayment of the Loans and
all other amounts payable hereunder.
7.9 AFTER ACQUIRED REAL PROPERTY; FILING OF MORTGAGES. (a) Within 90
days after the date of acquisition of any fee interest in real property
(including any like kind exchanges in accordance with subsection 8.5(e)) for
consideration in excess of $1,000,000, deliver to the Collateral Agent a
Mortgage granting the Collateral Agent a lien on such acquired real property,
together with in respect of each parcel covered by each Mortgage delivered
pursuant to this subsection 7.9(a) a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each such
policy shall (a) be issued by a title company satisfactory to the Collateral
Agent, (b) be in an amount reasonably satisfactory to the Collateral Agent, (c)
insure that the Mortgage insured thereby creates a valid first Lien on such
parcel free and clear of all Liens, defects and encumbrances, except Permitted
Liens, (d) name the Collateral Agent, for the benefit of the Lenders, as the
insured thereunder, (e) contain such endorsements and affirmative coverage as
the Collateral Agent may reasonably request and (f) provide for the issuance of
an ALTA Loan Policy - 1990 (Amended 6/15/94) or its substantial equivalent.
Such policy or binder may contain an exception for any condition that may be
shown by a current, accurate survey or physical inspection of the property
covered thereby.
(b) If any Mortgaged Property is located in a "special flood hazard
area" designated under the Flood Disaster Protection Act of 1973, deliver to the
Collateral Agent, upon its request, (i) a policy of flood insurance which (A)
covers any parcel of improved real property which is encumbered by any Mortgage,
(B) is written in an amount not less than the outstanding principal amount of
the indebtedness secured by such Mortgage which is reasonably allocable to such
real property or the maximum limit of coverage made available with respect to
the particular type of property under the Flood Disaster Protection Act of 1973,
whichever is less, and (C) has a term ending not later than the maturity of the
indebtedness secured by such Mortgage and (ii) confirmation that the Company has
received the notice required pursuant to Section 208(e)(3) of Regulation H of
the Board of Governors of the Federal Reserve System. The Company shall take
all actions necessary to ensure that the security interest in the collateral
described in each Mortgage delivered pursuant to subsection 7.9 constitutes a
perfected lien on, and security interest in, all right, title and interest of
the debtor party thereto in such collateral (including, without
64
limitation, recording of each mortgage in the appropriate jurisdictions and
payment of all premiums in respect of each title insurance policy and all
charges for mortgage recording tax, intangible tax and recording fees, if any,
and executing all necessary affidavits in connection with the calculation of and
payment of such mortgage recording tax, intangible tax and recording fees).
7.10 NOTICES OF REDEMPTION. (a) Give notices of redemption to the
trustee under the indenture pertaining to the Subordinated Debt and cause
Holdings to give notices of redemption to the trustee under the indenture
pertaining to the Holdings securities by November 29, 1996.
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that it shall not, and the Company shall not
permit any of its Subsidiaries to, directly or indirectly so long as the
Commitments remain in effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount remains available to be drawn under any
Letter of Credit or any other amount is owing to any Lender, the Administrative
Agent or the Collateral Agent hereunder or under any other Credit Document (it
being understood that each of the permitted exceptions to each of the covenants
in this Section 8 is in addition to, and not overlapping with, any other of such
permitted exceptions except to the extent expressly provided):
8.1 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) the Indebtedness outstanding on the Effective Date and reflected
on Schedule 8.1(a), but excluding the refinancing of any such Indebtedness;
(b) Indebtedness consisting of the Loans and in connection with the
Letters of Credit and this Agreement;
(c) Indebtedness (i) of the Company to any Subsidiary and (ii) of any
Subsidiary to the Company or any other Subsidiary in an aggregate principal
amount at any time outstanding not to exceed $500,000;
(d) Indebtedness of the Company in respect of the Subordinated Debt;
(e)(i) Indebtedness of the Company and its Subsidiaries for (A)
industrial revenue bonds or other similar governmental and municipal bonds
and (B) the deferred purchase price of newly acquired property of the
Company and its Subsidiaries (pursuant to purchase money mortgages or
otherwise) used in the ordinary course of business of the Company and its
Subsidiaries other than Rental Fleet Equipment (PROVIDED such financing is
entered into within 180 days of the acquisition of such property) in an
amount (based on the remaining balance of the obligations therefor on the
books of the Company and its Subsidiaries) which in the case of preceding
clauses (A) and (B) shall not exceed $10,000,000 in the aggregate at any
one time outstanding and (ii) Indebtedness of the Company and its
Subsidiaries in respect of Financing Leases to the extent subsections 8.7
and 8.10 would not be contravened;
65
(f) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount at any time outstanding not in excess of the equivalent at the date
of each incurrence thereof of $500,000;
(g) Indebtedness of the Company and Subsidiaries in an aggregate
principal amount at any one time outstanding not in excess of $10,000,000;
(h) Indebtedness in respect of letters of credit (other than Letters
of Credit issued hereunder) not to exceed an aggregate amount equal to
$5,000,000;
(i) (i) Indebtedness assumed in connection with acquisitions permitted
by subsection 8.6(g) (so long as such Indebtedness was not incurred in
anticipation of such acquisitions), (ii) Indebtedness of newly acquired
Subsidiaries acquired in such acquisitions (so long as such Indebtedness
was not incurred in anticipation of such acquisition) and (iii)
Indebtedness owed to the seller in any acquisition permitted by subsection
8.6(g) constituting part of the purchase price thereof, all of which
Indebtedness permitted by this subsection 8.1(i) shall not exceed in the
aggregate at any time $5,000,000; and
(j) Indebtedness in connection with workmen's compensation obligations
and general liability exposure of the Company and its Subsidiaries.
8.2 LIMITATION ON LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets, income or profits, whether now owned or
hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental charges not yet
delinquent or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Company or such Subsidiary, as the case may be, in accordance
with GAAP;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations which are not yet due or which are bonded or
which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Company or such Subsidiary, as the case may be, in accordance with GAAP;
(c) pledges or deposits in connection with workmen's compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, tenders, trade or
government contracts (other than for borrowed money), leases, licenses,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements (including, without limitation, reciprocal easement
agreements), rights-of-way, building, zoning and similar restrictions,
utility agreements, covenants, reservations, restrictions, encroachments,
changes, and other similar encumbrances or title defects incurred, or
leases or subleases granted to others, in the ordinary course of
66
business, which do not in the aggregate materially detract from the aggregate
(i) value of the properties of the Company and its Subsidiaries, taken as a
whole or (ii) materially interfere with or adversely affect in any material
respect the ordinary conduct of the business of the Company and its Subsidiaries
on the properties subject thereto, taken as a whole;
(f) Liens in favor of the Collateral Agent and the Lenders pursuant to
the Credit Documents delivered in connection with the Existing Credit
Agreement or hereunder and bankers' liens arising by operation of law;
(g) Liens on property of the Company or any of its Subsidiaries
created solely for the purpose of securing Indebtedness permitted by
subsection 8.1(e) or 8.1(i)(i) or (ii) (so long as such Lien was not
incurred in anticipation of the related acquisition), representing or
incurred to finance, refinance or refund the purchase price of property,
PROVIDED that no such Lien shall extend to or cover other property of the
Company or such Subsidiary other than the respective property so acquired,
and the principal amount of Indebtedness secured by any such Lien shall at
no time exceed the original purchase price of such property;
(h) Liens existing on the Effective Date and described in subsection
5.13 or Schedule 8.2;
(i) Liens on documents of title and the property covered thereby
securing Indebtedness in respect of the Commercial L/Cs;
(j) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the Company
or any Subsidiary of the Company has easement rights or on any Leased
Property and subordination or similar agreements relating thereto and
(ii) any condemnation or eminent domain proceedings affecting any real
property;
(k) Liens in connection with workmen's compensation obligations and
general liability exposure of the Company and its Subsidiaries; and
(l) Liens on goods (and Proceeds thereof) securing reimbursement
obligations in respect of commercial letters of credit issued in accordance
with the terms of this Agreement.
8.3 LIMITATION ON CONTINGENT OBLIGATIONS. Create, incur, assume or
suffer to exist any Contingent Obligation except:
(a) the Guarantees;
(b) other guarantees by the Company incurred in the ordinary course of
business for an aggregate amount not to exceed $2,000,000 at any one time;
(c) guarantees by the Company of obligations of its Subsidiaries;
67
(d) Contingent Obligations existing on the Effective Date and
described in Schedule 8.3(d);
(e) guarantees of obligations to third parties in connection with
relocation of employees of the Company or any of its Subsidiaries, in an
amount which, together with all loans and advances made pursuant to
subsection 8.6(f), shall not exceed $2,000,000 at any time outstanding;
(f) Contingent Obligations in connection with workmen's compensation
obligations and general liability exposure of the Company and its
Subsidiaries; and
(g) subordinated guarantees of subordinated debt issued by
Subsidiaries of the Company which have also issued Guarantees, PROVIDED
such subordinated guarantees are subordinated to the Guarantees on the same
basis as the Subordinated Debt is subordinated to the Loans.
8.4 PROHIBITION OF FUNDAMENTAL CHANGES. Enter into any merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or engage in any type of business other
than of the same general type now conducted by it, except (a) for the
transactions otherwise permitted pursuant to clause (b) of subsection 8.5 and
(b) any Subsidiary of the Company may be merged with and into the Company or a
Subsidiary of the Company.
8.5 PROHIBITION ON SALE OF ASSETS. Convey, sell, lease (other than a
sublease of real property), assign, transfer or otherwise dispose of (including
through a transaction of merger or consolidation of any Subsidiary of the
Company) any of its property, business or assets (including, without limitation,
tax benefits, receivables and leasehold interests), whether now owned or
hereafter acquired, except:
(a) for (i) sales or other dispositions of inventory, new equipment or
rental fleet equipment, stores (whether owned in fee or leased by the
Company or any Subsidiary), leaseholds or other tangible personal property
made in the ordinary course of business, but in no event may such sales or
dispositions of Rental Fleet Equipment exceed, in aggregate original
purchase prices, during any fiscal year of the Company, 33% of the
aggregate original purchase prices of all Rental Fleet Equipment of the
Company and its Subsidiaries at the end of the immediately preceding fiscal
year and (ii) sales of obsolete or worn-out property;
(b) that any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to, or merge with and into, the Company or a wholly-owned
Subsidiary of the Company and any Subsidiary of the Company may sell or
otherwise dispose of, or part with control of any or all of, the stock of
any Subsidiary to a wholly-owned Subsidiary of the Company, PROVIDED that
no such transaction may be effected if it would result in the transfer of
any assets of, or any stock of, a Subsidiary to, or the merger with and
into, another Subsidiary all of the Capital Stock of which owned by the
Company or any Subsidiary has not been pledged to the Collateral Agent and
which has not guaranteed the obligations of the Company under the Notes and
this Agreement, and granted liens or security interests in
68
favor of the Collateral Agent, for the benefit of the Lenders, on
substantially all of its assets to secure such guarantee, pursuant to a
guarantee, security agreement and other documentation reasonably
satisfactory to the Collateral Agent;
(c) leases of Fee Properties and other real property owned in fee and
subleases of Leased Properties;
(d) any condemnation or eminent domain proceedings affecting any real
property, PROVIDED, however, that the parties hereto agree that the net
proceeds received in connection with such proceeding shall be deemed not to
constitute "Net Proceeds" if such net proceeds are reinvested in new or
existing properties within eighteen months;
(e) substantially like-kind exchanges of real property PROVIDED that
any cash received by the Company or any Subsidiary of the Company in
connection with such an exchange (net of all costs and expenses incurred in
connection with such transaction or with the commencement of operation of
real property received in such exchange) shall be deemed to be Net Proceeds
and shall be applied as provided for herein;
(f) for the sale or other disposition of any personal property that,
in the reasonable judgment of the Company has become uneconomic, obsolete
or worn out, and which in each case is disposed of in the ordinary course
of business; and
(g) for the sale or other disposition of any property the aggregate
amount of the net proceeds received in respect of which shall not exceed
$1,000,000.
8.6 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of, or make any other investment in
(including, without limitation, any acquisition of all or any substantial
portion of the assets, and any acquisition of a business or a product line, of
other companies, other than the acquisition of inventory in the ordinary course
of business), any Person, except:
(a) the Company may make loans or advances to any Subsidiary, and any
Subsidiary may make loans or advances to the Company or any other
Subsidiary, to the extent in each case the Indebtedness created thereby is
permitted by paragraph (c) of subsection 8.1;
(b)(i) any Subsidiary may make investments in the Company (by way of
capital contribution or otherwise),(ii) the Company and any Subsidiary may
make investments in, or create, any wholly-owned Domestic Subsidiary (by
way of capital contribution or otherwise) or make investments permitted by
subsection 8.5(b), PROVIDED that, in any such case, (x) if stock is issued
or otherwise acquired in connection with such investment, or if the stock
of such Subsidiary was not previously pledged to the Collateral Agent, such
stock is pledged to the Collateral Agent for the benefit of the Lenders so
that 100% of the Capital Stock of such Subsidiary is pledged to the
Collateral Agent and (y) such Subsidiary guarantees the obligations of the
Company under the Notes and this Agreement, and grants liens or security
interests in favor of the Collateral Agent, for the benefit of the Lenders,
on substantially all of its assets to secure such guarantee, pursuant
69
to a guarantee, a security agreement and other documentation reasonably
satisfactory to the Collateral Agent and (iii) the Company and any
Subsidiary may make investments in, or create, any wholly-owned Foreign
Subsidiary (by way of capital contribution or otherwise) or make
investments permitted by subsection 8.5(b), PROVIDED that (x) at least 66%
of the Capital Stock of such wholly-owned Foreign Subsidiary is pledged to
the Administrative Agent for the benefit of the Lenders and (y) the
aggregate amount of all investments in such Foreign Subsidiaries shall not
exceed $500,000;
(c) the Company and its Subsidiaries may invest in, acquire and hold
Cash Equivalents;
(d) the Company or any of its Subsidiaries may make payroll advances
in the ordinary course of business;
(e) the Company or any of its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms, (PROVIDED that nothing in this clause (e) shall prevent the Company
or any Subsidiary from offering such concessionary trade terms, or from
receiving such investments in connection with the bankruptcy or
reorganization of their respective suppliers or customers or the settlement
of disputes with such customers or suppliers arising in the ordinary course
of business, as management deems reasonable in the circumstances);
(f) the Company or any of its Subsidiaries may make travel and
entertainment advances and relocation and other loans to officers and
employees of the Company or any such Subsidiary, PROVIDED that the
aggregate principal amount of all such loans and advances outstanding at
any one time, together with the guarantees of such loans and advances made
pursuant to subsection 8.3(e), shall not exceed $2,000,000 at any one time
outstanding;
(g) the Company and its Subsidiaries may make expenditures to acquire
all or a portion of the Capital Stock or assets of any Person, PROVIDED
that such expenditures are not prohibited by subsection 8.7 and the
provisions of subsection 8.6(b)(ii) are satisfied; and
(h) acquisitions of companies engaged primarily in businesses similar
to the businesses in which the Company and its Subsidiaries are engaged
("SECTION 8.6 ACQUISITIONS") to the extent that the amount expended to make
such Acquisitions constitutes Capital Expenditures permitted pursuant to
subsection 8.7(b).
8.7 CAPITAL EXPENDITURES. Make or commit to make any Capital
Expenditures, except that the Company and its Subsidiaries may make or commit to
make:
(a) Capital Expenditures not exceeding the amount set forth below (the
"BASE AMOUNT") for each of the fiscal years of the Company (or other
period) set forth below:
70
FISCAL YEAR
OR PERIOD BASE AMOUNT
1996 106,000,000
1997 130,000,000
1998 135,000,000
1999 150,000,000
2000 175,000,000
2001 200,000,000
2002 225,000,000
PROVIDED, however, that for any fiscal year commencing with the 1996 fiscal
year of the Company, the Base Amount set forth above may be increased by a
maximum of $20,000,000 for any such fiscal year by carrying over to any
such fiscal year any portion of the Base Amount (as increased) not spent in
the immediately preceding fiscal year; and
(b) additional Capital Expenditures in respect of (i) Section 8.6
Acquisitions in an aggregate amount not to exceed $60,000,000 (the
"Acquisition Base Amount") and (ii) the Vibroplant Acquisition; PROVIDED
that the aggregate amount of Capital Expenditures permitted to be made
pursuant to this subsection 8.7(b) may be increased from time to time by a
maximum of $10,000,000 in the aggregate by applying a portion of the Base
Amount for the respective fiscal year equal to such increase to such
Section 8.6 Acquisitions (such application of the Base Amount for any such
year not being considered a usage of the Acquisition Base Amount).
8.8 CONSOLIDATED EBITDA. At the last day of any fiscal quarter set
forth below, commencing with the first full fiscal quarter of the 1995 fiscal
year of the company beginning on or after the Closing Date, permit Consolidated
EBITDA for the period of four fiscal quarters ending on such day (or, if
shorter, the period commencing on the first day of the first fiscal quarter
commencing on or after the Closing Date and ending on such day) to be less than
the amount set forth opposite such fiscal quarter below:
FISCAL YEAR FISCAL QUARTER AMOUNT
1996 First 60,000,000
Second 66,000,000
Third 74,000,000
Fourth 81,000,000
1997 First 85,000,000
Second 91,000,000
Third 97,000,000
Fourth 103,000,000
1998 First 103,000,000
Second 106,000,000
Third 111,000,000
Fourth 116,000,000
1999 First 116,000,000
Second 120,000,000
71
Third 123,000,000
Fourth 130,000,000
2000 First 130,000,000
Second 133,000,000
Third 138,000,000
Fourth 142,000,000
2001 First 142,000,000
Second 142,000,000
Third 142,000,000
Fourth 142,000,000
2002 First 142,000,000
Second 142,000,000
Third 142,000,000
8.9 DEBT COVERAGE RATIO. At the last day of any fiscal quarter set
forth below, commencing with the fourth fiscal quarter of the 1995 fiscal year
of the Company, permit the Debt Coverage Ratio for the period of four fiscal
quarters ending on such day to be greater than the ratio set forth below for
such fiscal quarter:
FISCAL YEAR FISCAL QUARTER RATIO
1996 Second 5.20 to 1
Third 5.10 to 1
Fourth 5.00 to 1
1997 First 5.00 to 1
Second 4.90 to 1
Third 4.70 to 1
Fourth 4.50 to 1
1998 First 4.50 to 1
Second 4.40 to 1
Third 4.20 to 1
Fourth 4.00 to 1
1999 First 4.00 to 1
Second 3.95 to 1
Third 3.85 to 1
Fourth 3.75 to 1
2000 First 3.75 to 1
Second 3.70 to 1
Third 3.60 to 1
Fourth 3.50 to 1
2001 First 3.50 to 1
Second 3.50 to 1
Third 3.50 to 1
Fourth 3.50 to 1
2002 First 3.50 to 1
Second 3.50 to 1
Third 3.50 to 1
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8.10 INTEREST COVERAGE. At the last day of any fiscal quarter set
forth below, permit the Interest Coverage Ratio to be less than the ratio set
forth below for such fiscal quarter:
INTEREST
COVERAGE
FISCAL YEAR FISCAL QUARTER RATIO
1996 Second 2.00 to 1
Third 2.00 to 1
Fourth 2.05 to 1
1997 First 2.05 to 1
Second 2.05 to 1
Third 2.10 to 1
Fourth 2.10 to 1
1998 First 2.20 to 1
Second 2.20 to 1
Third 2.25 to 1
Fourth 2.30 to 1
1999 First 2.30 to 1
Second 2.30 to 1
Third 2.40 to 1
Fourth 2.50 to 1
2000 First 2.50 to 1
Second 2.50 to 1
Third 2.60 to 1
Fourth 2.70 to 1
2001 First 2.70 to 1
Second 2.70 to 1
Third 2.70 to 1
Fourth 2.70 to 1
2002 First 2.70 to 1
Second 2.70 to 1
Third 2.70 to 1
8.11 LIMITATION ON DIVIDENDS. Declare any dividends on any shares of
any class of stock, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, retirement or
other acquisition of any shares of any class of stock, or any warrants or
options to purchase such stock, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Company or any of its
Subsidiaries; except that:
(a) Subsidiaries may pay dividends to the Company or to Subsidiaries
which are directly or indirectly wholly owned by the Company;
(b) the Company may pay or make dividends or distributions to any
holder of its capital stock in the form of additional shares of Capital
Stock of the same class and type, PROVIDED such shares of Capital Stock are
pledged to the Collateral Agent for the benefit of the Lenders; and
73
(c) the Company may pay dividends or make other distributions:
(i) to Holdings in amounts equal to amounts required for
Holdings to pay franchise taxes and other fees required to maintain
its corporate existence and provide for other operating costs in the
ordinary course of business;
(ii) to Holdings in amounts equal to amounts required for
Holdings to pay Federal, state and local income taxes to the extent
such income taxes are attributable to the income of the Company and
its Subsidiaries;
(iii) to Holdings in amounts equal to amounts expended by Holdings
to repurchase Capital Stock of Holdings owned by former employees of
the Company or its Subsidiaries or their assigns, estates and heirs,
PROVIDED that the aggregate amount paid, loaned or advanced to
Holdings pursuant to this clause (iii) shall not, in the aggregate,
exceed the sum of $4,000,000 plus any amounts contributed by Holdings
to the Company as a result of resales of such repurchased shares of
Capital Stock;
(iv) so long as, after giving effect thereto, no Default or Event
of Default has occurred and is continuing, the Company may pay cash
dividends to Holdings, PROVIDED that, after giving effect to such cash
dividends, the aggregate amount of payments by the Company of cash
dividends pursuant to this clause (iv) in respect of its common stock
made on and after the Effective Date shall not exceed 25% of
consolidated net income of the Company for the period commencing with
the fiscal quarter commencing immediately prior to the Effective Date
through the fiscal quarter ending immediately prior to the date of
proposed payment of such dividend, but in no event more than
$3,000,000 in any fiscal year pursuant to this clause (iv).
8.12 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate except for transactions
which are otherwise permitted under this Agreement and which are in the ordinary
course of the Company's or a Subsidiary's business and which are upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than it
would obtain in a hypothetical comparable arm's length transaction with a Person
not an Affiliate; PROVIDED, HOWEVER, that nothing in this subsection 8.12 shall
prohibit the Company or any of its Subsidiaries from engaging in the following
transactions: (x) the performance of the Company's or such Subsidiary's
obligations under any employment contract, collective bargaining agreement,
employee benefit plan, related trust agreement or any other similar arrangement
heretofore or hereafter entered into in the ordinary course, (y) payment of
compensation to employees, officers, directors or consultants in the ordinary
course of business and (z) maintenance of benefit programs or arrangements for
employees, officers or directors, including, without limitation, vacation plans,
health and life insurance plans, deferred compensation plans, and retirement or
savings plans and similar plans.
8.13 PREPAYMENTS AND AMENDMENTS OF SUBORDINATED DEBT AND EQUITY. (a)
Optionally prepay, retire, redeem, purchase, defease or exchange, or make any
mandatory prepayment of the Subordinated Debt or pay any interest on the
Subordinated Debt in cash if
74
such interest may be paid by the issuance of additional Subordinated Debt or (b)
amend, supplement or otherwise modify any documentation governing any
Subordinated Debt (other than (I) amendments to such Subordinated Debt which
reduce the interest rate or extend the maturity thereof, (II) waivers of
compliance by the Company with any of the terms or conditions of such
Subordinated Debt (except those which by their terms run to the benefit of the
Lenders) and (III) any amendment, supplement or modification described in clause
(ii) of Section 9(k)).
8.14 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of
the Company to end on a day other than December 31.
8.15 LIMITATION ON LINES OF BUSINESS. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Company is engaged on the date of this Agreement or which are directly related
thereto.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
events:
(a) The Company shall fail (i) to pay any principal of any Note when
due in accordance with the terms hereof or thereof or to reimburse the
Issuing Lender in accordance with subsection 3.8 or (ii) pay any interest
on any Loan or any other amount payable hereunder within five days after
any such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by any Credit
Party in any Credit Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any
agreement contained in subsection 7.7(a), 7.9 or Section 8 of this
Agreement or Holdings shall default in the observance or performance of any
agreement contained in Section 5 of the Holdings Pledge Agreement or the
Company shall default in the observance or performance of any agreement
contained in subsections 3(a), (h) through (k) and (o) of the Company
Security Agreement or Holdings shall default in the observance or
performance of any agreement contained in Section 10 of the Holdings
Guarantee, or, with respect to any Subsidiary which becomes a Credit Party
after the Closing Date, the Company or such Subsidiary shall default in the
observance or performance of the corresponding provisions of the pledge
agreement, guarantee and security agreement to which it is a party; or
(d) Any Credit Party shall default in the observance or performance of
any other agreement contained in any Credit Document and such default shall
continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on or other amounts in respect of any
Indebtedness (other than the Loans, the L/C Obligations and any
inter-company debt) or Interest Rate Agreement or
75
in the payment of any Contingent Obligation, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness,
Interest Rate Agreement or Contingent Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness, Interest Rate Agreement or
Contingent Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Contingent Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity, any applicable grace period having
expired, or such Contingent Obligation to become payable, any applicable
grace period having expired; in each case, PROVIDED that the aggregate
principal amount of all such Indebtedness, Interest Rate Agreements and
Contingent Obligations under which a payment default exists as in (a) above
or which would then become due or payable equals or exceeds $5,000,000; or
(f) (i) The Company or any of its Subsidiaries or Holdings shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts or (B) seeking appointment
of a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any of its
Subsidiaries or Holdings shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Company or any
of its Subsidiaries or Holdings any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Subsidiaries or
Holdings any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Company or any of its Subsidiaries or Holdings shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Company or any of its Subsidiaries or Holdings shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan which is not otherwise exempted, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such
76
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any material liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan; and in each case in clauses (i) through (v) above, such
event or condition, together with all other such events or conditions
relating to a Plan, if any, would be reasonably likely to subject the
Company or any of its Subsidiaries to any tax, penalty or other liabilities
in the aggregate material in relation to the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within the time required by the terms of such
judgment; or
(i) Any Credit Document shall cease, for any reason, to be in full
force and effect or any Credit Party or any of its Subsidiaries shall so
assert in writing, or any Pledge Agreement, Security Agreement or any
Mortgage recorded in accordance with subsection 7.9 shall cease to be
effective to grant a perfected Lien on the collateral described therein
with the priority purported to be created thereby (other than as a result
of any action or inaction on the part of the Collateral Agent or the
Lenders), subject to such exceptions as may be permitted therein, and in
the case of any Security Agreement or the Mortgages such condition shall
continue unremedied for 30 days after notice thereof to the Company by the
Collateral Agent or any Lender; or
(j) There shall have occurred a Change in Control; or
(k) (i) There shall have occurred any amendment, supplement or other
modification of the Subordinated Debt or the documents governing such
Subordinated Debt, which in any such case shall not have been consented to
in advance in writing by the Collateral Agent and the Required Lenders,
except (A) as otherwise expressly permitted by subsection 8.13 or (B) to
the extent such amendment, supplement or modification gives effect to any
retirement or redemption of Subordinated Debt expressly permitted by this
Agreement or (ii) the subordination provisions of any document governing
any Subordinated Debt shall cease, for any reason, to be valid or any
Credit Party or any of its Subsidiaries shall so assert in writing;
then, and in any such event, (a) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically (i) the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (ii) all
obligations of the Company in respect of the Letters of Credit, although
contingent and unmatured, shall become immediately due and payable and the
Issuing Lender's obligations to issue the Letters of Credit shall immediately
terminate and (b) if such event is any other Event of Default, so long as any
such Event of Default shall be continuing, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative
77
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Company, declare the Commitments and the Issuing
Lender's obligations to issue the Letters of Credit to be terminated forthwith,
whereupon the Commitments and such obligations shall immediately terminate; and
(ii) with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice of default to the Company, (A) declare all or a portion of the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable, and (B) declare all or a portion of
the obligations of the Company in respect of the Letters of Credit, although
contingent and unmatured, to be due and payable forthwith, whereupon the same
shall immediately become due and payable and/or demand that the Company
discharge any or all of the obligations supported by the Letters of Credit by
paying or prepaying any amount due or to become due in respect of such
obligations. All payments under this Section 9 on account of undrawn Letters of
Credit shall be made by the Company directly to a cash collateral account
established by the Administrative Agent for such purpose for application to the
Company's reimbursement obligations under subsection 3.8 as drafts are presented
under the Letters of Credit, with the balance, if any, to be applied to the
Company's obligations under this Agreement and the Notes as the Administrative
Agent shall determine with the approval of the Required Lenders. Except as
expressly provided above in this Section 9, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE COLLATERAL
AGENT; THE ISSUING LENDER
10.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent and CIT as the Collateral Agent under
this Agreement and irrevocably authorizes Chase as Administrative Agent and CIT
as Collateral Agent for such Lender, to take such action on its behalf under the
provisions of the Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent or the Collateral
Agent, as the case may be, by the terms of the Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Credit Documents or otherwise exist against the Administrative Agent or the
Collateral Agent.
10.2 DELEGATION OF DUTIES. Each of the Administrative Agent and the
Collateral Agent may execute any of its duties under this Agreement and each of
the other Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. Neither the Administrative Agent nor the Collateral Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care, except as otherwise provided in subsection
10.3.
10.3 EXCULPATORY PROVISIONS. None of the Administrative Agent, the
Collateral Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such
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Person under or in connection with the Credit Documents (except for its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Credit Party or any officer thereof contained in the
Credit Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent or the
Collateral Agent under or in connection with the Credit Documents or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
the Credit Documents or for any failure of any Credit Party to perform its
obligations thereunder. Neither the Administrative Agent nor the Collateral
Agent shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, any Credit Document or to inspect the properties, books or
records of any Credit Party.
10.4 RELIANCE BY ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT. The
Administrative Agent and the Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, the writings maintained in
the Register, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Company), independent accountants and other experts selected by the
Administrative Agent or the Collateral Agent. Each of the Administrative Agent
and the Collateral Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent or the
Collateral Agent. The Administrative Agent and the Collateral Agent shall be
fully justified in failing or refusing to take any action under any Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, where a higher percentage of the Lenders is expressly
required hereunder, such Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent and the Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any
Credit Document in accordance with a request of the Required Lenders (or, where
a higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
10.5 NOTICE OF DEFAULT. Neither the Administrative Agent nor the
Collateral Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Administrative Agent or
the Collateral Agent, as the case may be, has received written notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent or the Collateral Agent receives such a
notice, the Administrative Agent or the Collateral Agent, as the case may be,
shall promptly give notice thereof to the Lenders. The Administrative Agent or
the Collateral Agent, as the case may be, shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders; PROVIDED that unless and until the Administrative Agent or the
Collateral Agent shall have received such directions, each of the Administrative
Agent and the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with
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respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND
OTHER LENDERS. Each Lender expressly acknowledges that none of the
Administrative Agent, the Collateral Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent,
the Collateral Agent or any such Person hereinafter taken, including any review
of the affairs of the Credit Parties, shall be deemed to constitute any
representation or warranty by the Administrative Agent or the Collateral Agent
to any Lender. Each Lender represents to the Administrative Agent and the
Collateral Agent that it has, independently and without reliance upon the
Administrative Agent or the Collateral Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of Holdings, the Company and
its Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, the Collateral Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under the Credit Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of Holdings, the Company and its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent or the Collateral Agent hereunder, neither
the Administrative Agent nor the Collateral Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Credit Parties which may come into the possession of the
Administrative Agent or the Collateral Agent or any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 INDEMNIFICATION. The Lenders agree to indemnify each of the
Administrative Agent and the Collateral Agent in its capacity as such (to the
extent not reimbursed by the Credit Parties and without limiting the obligation
of the Credit Parties to do so), ratably according to the respective amounts of
their respective Commitments (or, to the extent such Commitments have been
terminated, according to the respective outstanding principal amounts of the
Loans and the L/C Obligations and the respective obligations, whether as Issuing
Lender or a Participating Lender, under the Letter of Credit), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Notes) be imposed on, incurred by or asserted against the Administrative
Agent or the Collateral Agent in any way relating to or arising out of the
Credit Documents or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the
Administrative Agent or the Collateral Agent under or in connection with any of
the foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent or the Collateral Agent's gross negligence or willful
misconduct. The agreements in this subsection 10.7 shall survive the payment of
the Notes and all other amounts payable hereunder.
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10.8 THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT IN THEIR
INDIVIDUAL CAPACITIES. Each of the Administrative Agent and the Collateral
Agent and their respective Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with Holdings, the Company and its
Subsidiaries as though the Administrative Agent and the Collateral Agent were
not the Administrative Agent and the Collateral Agent, as the case may be,
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it, each of the Administrative Agent and the Collateral Agent shall have the
same rights and powers, duties and liabilities under the Credit Documents as any
Lender and may exercise the same as though it were not the Administrative Agent
or the Collateral Agent, as the case may be, and the terms "Lender" and
"Lenders" shall include the Administrative Agent and the Collateral Agent in
their individual capacities.
10.9 SUCCESSOR AGENT. Each of the Administrative Agent and the
Collateral Agent may resign as Administrative Agent or the Collateral Agent, as
the case may be, upon 30 days' notice to the Lenders. If the Administrative
Agent or the Collateral Agent shall resign as Administrative Agent or Collateral
Agent under the Credit Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor agent shall,
so long as no Event of Default has occurred and is continuing, be approved by
the Company, which shall not unreasonably withhold its approval, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent or the Collateral Agent, as the case may be, and the term
"Administrative Agent" or the term "Collateral Agent", as the case may be, shall
mean such successor agent effective upon its appointment, and the former
Administrative Agent's or Collateral Agent's rights, powers and duties as
Administrative Agent or Collateral Agent, as the case may be, shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or Collateral Agent, as the case may be, or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Administrative Agent's or Collateral Agent's resignation hereunder as
Administrative Agent or Collateral Agent, as the case may be, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent or Collateral Agent, as the
case may be, under the Credit Documents.
10.10 ISSUING LENDER AS ISSUER OF LETTERS OF CREDIT. Each Lender
which is a holder of a Revolving Credit Commitment (collectively "REVOLVING
CREDIT LENDERS") hereby acknowledges that the provisions of this Section 10
shall apply to the Issuing Lender, in its capacity as issuer of the Letters of
Credit, in the same manner as such provisions are expressly stated to apply to
the Administrative Agent, except that obligations to indemnify the Issuing
Lender shall be ratable among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments (or, if the Revolving Credit
Commitments have been terminated, the outstanding principal amount of their
respective Revolving Credit Loans and L/C Obligations and their respective
participating interests in the outstanding Letters of Credit).
SECTION 11. MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth
in this Agreement, no Credit Document nor any terms thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 11.1. With the written consent of the Required Lenders, the
Administrative Agent, the Collateral Agent and the
81
respective Credit Parties or their Subsidiaries may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to any Credit Document to which they are parties or
changing in any manner the rights of the Lenders or of any such Credit Party or
its Subsidiaries thereunder or waiving, on such terms and conditions as the
Administrative Agent or the Collateral Agent, as the case may be, may specify in
such instrument, any of the requirements of any such Credit Document or any
Default or Event of Default and its consequences; PROVIDED, HOWEVER, that:
(a) no such waiver and no such amendment, supplement or modification
shall release collateral not required or permitted by any Credit Document
to be released and which, in the aggregate with all other collateral
released pursuant to this clause (a) (other than collateral released
pursuant to the proviso to this clause (a)) during the calendar year in
which such proposed release would be effected and the immediately preceding
calendar year, has fair market value on the proposed date of release in
excess of 20% of the fair market value of all collateral on such date
without the written consent of the Supermajority Lenders; PROVIDED that,
notwithstanding the foregoing, this clause (a) shall not be applicable to
and no consent shall be required for (i) releases of collateral in
connection with any Asset Sales permitted by subsection 8.5 as in effect on
the Closing Date or (ii) releases of collateral in accordance with
subsection 11.11;
(b) no such waiver and no such amendment, supplement or modification
shall extend the final maturity date of any Note or the scheduled payment
date of any installment of any Loan, or reduce the rate or extend the time
of payment of interest thereon, or change the method of calculating
interest thereon, or reduce any fee payable to the Lenders hereunder, or
reduce the principal amount thereof, or change the amount of any Lender's
Commitment or Commitment Percentage, or amend, modify or waive any
provision of subsection 4.9(b) or this subsection 11.1 or reduce the
percentage specified in the definition of Required Lenders or reduce the
percentage specified in the definition of Supermajority Lenders or reduce
the percentage specified in the definition of Section 4.4 Lenders or
consent to the assignment or transfer by any Credit Party of any of its
rights and obligations under any Credit Document, in each case, without the
prior written consent of each Lender directly affected thereby;
(c) no such waiver and no such amendment, supplement or modification
affecting the then Administrative Agent, Collateral Agent or Issuing Lender
shall amend, modify or waive any provision of Section 10 without the written
consent of such Administrative Agent, Collateral Agent or Issuing Lender;
(d) without the consent of the Lenders which are holders of the
Revolving Credit Loans only, the Lenders which are holders of all the Term
Loans may amend this Agreement and the Term Loan Notes to extend the
maturities of the installments of the Term Loans; and without the consent
of the Lenders which are holders of the Term Loans, all the Revolving
Credit Lenders may amend this Agreement and the Revolving Credit Notes to
extend the Revolving Credit Termination Date; and
(e) no such waiver, and no such amendment, supplement or modification
shall amend, modify or waive (i) the Section 4.4 Lenders' ability to act
pursuant to subsection 4.4(b)(i), (ii) or (iii) without the written consent
of the Section 4.4 Lenders or (ii) the
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order of application of prepayments specified in subsection 4.4(a) or
4.4(b)(iv) without the written consent of the holders of at least 80% of
the sum of (i) the aggregate unpaid principal amount of the Term Loans, if
any, and (ii) the Revolving Credit Commitments or, if the Revolving Credit
Commitments are terminated, the aggregate unpaid principal amount of the
Revolving Credit Loans (the Term Loans and the Revolving Credit Commitments
of any Non-Funding Lender to be disregarded in determining such percentage
at any time).
Any such waiver and any such amendment, supplement or modification described in
this subsection 11.1 shall apply equally to each of the Lenders and shall be
binding upon each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent, the Collateral Agent and Issuing Lender and all future
holders of the Notes and the Loans. Any extension of a Letter of Credit by the
Issuing Lender shall be treated hereunder as a new Letter of Credit. In the
case of any waiver, the Credit Parties, the Lenders, the Administrative Agent,
the Collateral Agent and Issuing Lender shall be restored to their former
position and rights hereunder and under the outstanding Notes, and any Default
or Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
11.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy or telex, if one is listed), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when sent, confirmation of receipt received, or,
in the case of telex notice, when sent, answerback received, addressed as
follows in the case of the Company, the Administrative Agent, the Collateral
Agent and as set forth in Schedule I-B in the case of any Lender, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
The Company: Primeco Inc.
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telex: 177920 GIBTRASK NYK
Telecopy: (000) 000-0000
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The Administrative Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Chase Agency Services Group
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
The Collateral Agent: The CIT Group/Business Credit, Inc.
1211 Avenue of the Americas - 22nd Floor
New York, New York 10036
Attention: [Xxxxxxx Xxxx]
Telecopy: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 shall not
be effective until received and PROVIDED that the failure to provide the copies
of notices to the Company provided for in this subsection 11.2 shall not result
in any liability to the Administrative Agent or the Collateral Agent.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, the Collateral
Agent or any Lender, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Letters of Credit and the Notes.
11.5 PAYMENT OF EXPENSES AND TAXES. The Company agrees (a) to pay or
reimburse each of the Administrative Agent and the Collateral Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, the Credit Documents and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable fees and
disbursements of one counsel to the Administrative Agent and the Collateral
Agent, (b) to pay or reimburse each Lender, the Administrative Agent and the
Collateral Agent for all their costs and expenses incurred in connection with,
and to pay, indemnify, and hold the Administrative Agent, the Collateral Agent
and each Lender harmless from and against any and all other
84
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever arising out of
or in connection with, the enforcement or preservation of any rights under any
Credit Document and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Administrative Agent, the
Collateral Agent and each Lender incurred in connection with the foregoing and
in connection with advising the Administrative Agent and the Collateral Agent
with respect to its rights and responsibilities under this Agreement and the
documentation relating thereto, (c) to pay, indemnify, and to hold the
Administrative Agent, the Collateral Agent and each Lender harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other similar taxes
(other than withholding taxes), if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Credit
Document and any such other documents, and (d) to pay, indemnify, and hold the
Administrative Agent, the Collateral Agent and each Lender and their respective
Affiliates, officers and directors harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including,
without limitation, reasonable fees and disbursements of counsel) which may be
incurred by or asserted against the Administrative Agent, the Collateral Agent
or the Lenders or such Affiliates, officers or directors (x) arising out of or
in connection with any investigation, litigation or proceeding related to this
Agreement, the other Credit Documents, the proceeds of the Loans or the
Subordinated Debt and the transactions contemplated by or in respect of such use
of proceeds, or any of the other transactions contemplated hereby, whether or
not the Administrative Agent, the Collateral Agent or any of the Lenders or such
Affiliates, officers or directors is a party thereto, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Company, any of its Subsidiaries or any of the facilities and properties
owned, leased or operated by the Company or any of its Subsidiaries, or (y)
without limiting the generality of the foregoing, by reason of or in connection
with the execution and delivery or transfer of, or payment or failure to make
payments under, Letters of Credit (it being agreed that nothing in this
subsection 11.5(d)(y) is intended to limit the Company's obligations pursuant to
subsection 3.8) (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"), PROVIDED that the Company shall have no obligation hereunder with
respect to indemnified liabilities of the Administrative Agent, the Collateral
Agent or any Lender or any of their respective Affiliates, officers and
directors arising from (i) the gross negligence or willful misconduct of such
Administrative Agent, Collateral Agent or Lender or their respective directors
or officers or (ii) legal proceedings commenced against the Administrative
Agent, the Collateral Agent or a Lender by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such or (iii) legal proceedings commenced
against the Administrative Agent, the Collateral Agent or any such Lender by any
Transferee (as defined in subsection 11.6). The agreements in this subsection
11.5 shall survive repayment of the Loans and all other amounts payable
hereunder.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, the Collateral Agent, all future holders of
the Notes and the Loans, 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 each Lender.
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(b) Any Lender may, in the ordinary course of its commercial banking
or lending business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("PARTICIPANTS") participating interests in
any Loan owing to such Lender, any participating interest in the Letters of
Credit of such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and Holdings, the Company, the Administrative
Agent and the Collateral Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. The Company agrees that if amounts outstanding under this Agreement
and the Notes 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 setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note; PROVIDED, that such right of
setoff shall be subject to the obligation of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
subsection 11.7. The Company also agrees that each Participant shall be
entitled to the benefits of subsections 3.10, 4.11 and 4.12 with respect to its
participation in the Letters of Credit and in the Commitments and the Loans
outstanding from time to time as if it were a Lender; PROVIDED, that no
Participant shall be entitled to receive any greater amount pursuant to any such
subsection than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. Each Lender agrees that the
participation agreement pursuant to which any Participant acquires its
participating interest (or any other document) may afford voting rights to such
Participant, or any right to instruct such Lender with respect to voting
hereunder, only with respect to matters requiring the consent of either all of
the Lenders hereunder or all of the Lenders holding the relevant Term Loans or
Revolving Credit Commitments subject to such participation.
(c) Subject to paragraph (g) of this subsection 11.6, any Lender may,
in the ordinary course of its commercial banking or lending business and in
accordance with applicable law, (i) at any time and from time to time assign all
or any part of its rights and obligations under this Agreement and the Notes to
any Lender or any Affiliate thereof, PROVIDED that, in the event of a sale of
less than all of such rights and obligations, such assigning Lender after any
such sale to any other Lender or any Affiliate of such Lender shall retain
Commitments and/or Loans and/or L/C Participating Interests aggregating at least
$5,000,000 (or such lesser amount as the Administrative Agent may determine),
and, (ii) with the consent of the Company and the Administrative Agent (which in
each case shall not be unreasonably withheld or delayed) at any time and from
time to time assign to one or more additional banks, mutual funds or financial
institutions or entities (each, an "ASSIGNEE"), all or any part of its rights
and obligations under this Agreement and the Notes, pursuant to an Assignment
and Acceptance, executed by such Assignee, such transferor Lender (and, in the
case of an Assignee that is not then a Lender or an Affiliate thereof, by the
Company and the Administrative Agent), and delivered to the Administrative Agent
for its acceptance and recording in the Register (as defined below); PROVIDED
that (A) each such sale pursuant to clause (ii) of this subsection 11.6(c) shall
be in a principal amount of $5,000,000 or more unless the Assigning Lender is
transferring all of its
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rights and obligations and (B) in the event of a sale of less than all of such
rights and obligations, such Lender after any such sale shall retain Commitments
and/or Loans and/or L/C Participating Interests aggregating at least $5,000,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent of the interest transferred, as reflected in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of a Assignment and Acceptance covering all or the remaining
portion of a transferor Lender's rights and obligations under this Agreement,
such transferor Lender shall cease to be a party hereto).
(d) The Administrative Agent, which for purposes of this subsection
11.6(d) only shall be deemed the agent of the Company, shall maintain at the
address of the Administrative Agent referred to in subsection 11.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Company, the Administrative Agent, the Collateral
Agent and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder shall be effective only upon appropriate entries with
respect thereto being made in the Register. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Company, the Administrative Agent
and the Collateral Agent), together with payment to the Administrative Agent of
a registration and processing fee of $4,000 if the Assignee is not a Lender
prior to the execution of such supplement and $1,000 otherwise, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders, the Collateral Agent and the Company. On or
prior to such effective date, the Company at its own expense, shall execute and
deliver to the Administrative Agent (in exchange for any or all of the Term Loan
Note, or Revolving Credit Notes of the assigning Lender, if any ) new Term Loan
Note, or Revolving Credit Notes, as the case may be, to the order of such
Assignee (if requested by such Assignee) in an amount equal to the Revolving
Credit Commitment or the Term Loans, as the case may be, assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment or any Term Loans hereunder, new Term Loan Note, or Revolving Credit
Notes, as the case may be, to the order of the assigning Lender in an amount
equal to the Commitment or such Term Loans, as the case may be, retained by it
hereunder (if requested). Such new Notes shall be dated the Effective Date and
shall otherwise be in the form of the Notes replaced thereby.
(f) The Lenders agree that they will use reasonable efforts to protect
the confidentiality of any confidential information concerning Holdings, the
Company and its
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Subsidiaries and Affiliates. Notwithstanding the foregoing, the Company
authorizes each Lender to disclose to any Participant or Assignee (each, a
"TRANSFEREE") and any prospective Transferee any and all financial information
in such Lender's possession concerning Holdings, the Company and its
Subsidiaries and Affiliates which has been delivered to such Lender by or on
behalf of Holdings or the Company pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of Holdings, or the Company in
connection with such Lender's credit evaluation of Holdings, the Company and its
Subsidiaries and Affiliates prior to becoming a party to this Agreement;
PROVIDED that each Lender shall cause its respective prospective Transferee to
agree in writing to protect the confidentiality of any confidential information
concerning Holdings, the Company and its Subsidiaries and Affiliates.
(g) If, pursuant to this subsection 11.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer either (1) in the case of a Transferee that is a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) to represent
to the transferor Lender (for the benefit of the transferor Lender, the
Administrative Agent, the Collateral Agent and the Company) that under
applicable law and treaties no taxes will be required to be withheld by the
Administrative Agent, the Collateral Agent, the Company or the transferor Lender
with respect to any payments to be made to such Transferee in respect of the
Loans or L/C Participating Interests, (ii) to furnish to the transferor Lender
(and, in the case of any Transferee registered in the Register, the
Administrative Agent, the Collateral Agent and the Company) either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
such Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for the
benefit of the transferor Lender, the Administrative Agent, the Collateral Agent
and the Company) to provide the transferor Lender (and, in the case of any
Transferee registered in the Register, the Administrative Agent, the Collateral
Agent and the Company) a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption or (2) in the case of any Transferee that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) to represent to the transferor
Lender (for the benefit of the transferor Lender, the Administrative Agent, the
Collateral Agent and the Company) that it is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (ii) to furnish to the transferor Lender (and,
in the case of any Transferee registered in the Register, to the Company), with
a copy to the Administrative Agent, (A) a Subsection 4.11(d)(2) Certificate and
(B) two (2) accurate and complete original signed copies of Internal Revenue
Service form W-8, certifying to such Transferee's legal entitlement on the date
of the effectiveness of such transfer to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with respect to all payments
to be made under this Agreement, and (iii) to agree (for the benefit of the
transferor Lender, the Administrative Agent, the Collateral Agent and the
Company), to the extent legally entitled to do so, upon reasonable request by
the transferor Lender (or, in the case of any Transferee registered in the
Register, the Administrative Agent, the Collateral Agent or the Company), to
provide to the transferor Lender, the Administrative Agent, the Collateral Agent
and the Company such other forms as may be required in order to establish the
legal entitlement of such Transferee to an exemption from withholding tax with
respect to payments under this Agreement.
88
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
11.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of any of its Loans or L/C
Participating Interests, as the case may be, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in clause (f) of
Section 9, or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or L/C Participating Interests, as the case may be, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders
such portion of each such other Lender's Loans or L/C Participating Interests,
as the case may be, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Lender so purchasing a portion of another Lender's
Loans and/or L/C Participating Interests may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion. The
Administrative Agent shall promptly give the Company notice of any set-off,
PROVIDED that the failure to give such notice shall not affect the validity of
such set-off.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Company, any
such notice being expressly waived by the Company to the extent permitted by
applicable law, upon the filing of a petition under any of the provisions of the
federal bankruptcy code or amendments thereto, by or against; the making of an
assignment for the benefit of creditors by; the application for the appointment,
or the appointment, of any receiver of, or of any substantial portion of the
property of; the issuance of any execution against any substantial portion of
the property of; the issuance of a subpoena or order, in supplementary
proceedings, against or with respect to any substantial portion of the property
of; or the issuance of a warrant of attachment against any substantial portion
of the property of; the Company to set-off and apply against any indebtedness,
whether matured or unmatured, of the Company to such Lender, any amount owing
from such Lender to the Company, at or at any time after, the happening of any
of the above mentioned events, and as security for such indebtedness, the
Company hereby grants to each Lender a continuing security interest in any and
all deposits, accounts or moneys of the Company then or thereafter maintained
with such Lender, subject in each case to subsection 11.7(a) of this Agreement.
The aforesaid right of set-off may be exercised by such Lender against the
Company or against any trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receiver or execution, judgment or attachment creditor
of the Company, or against anyone else claiming through or against the Company
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition;
89
assignment for the benefit of creditors; appointment or application for the
appointment of a receiver; or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Company and the Administrative Agent
after any such set-off and application made by such Lender, PROVIDED that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.8 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent. This Agreement
shall become effective with respect to the Company, the Administrative Agent,
the Collateral Agent and the Lenders when the Administrative Agent shall have
received copies of this Agreement executed by the Company, the Collateral Agent
and the Lenders, or, in the case of any Lender, shall have received telephonic
confirmation from such Lender stating that such Lender has executed counterparts
of this Agreement or the signature pages hereto and sent the same to the
Administrative Agent.
11.9 GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement and the
Notes and the rights and obligations of the parties under this Agreement and the
Notes shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York. This Agreement is solely for the benefit of
the parties hereto and their respective successors and assigns, and, except as
set forth in subsection 11.6, no other Persons shall have any right, benefit,
priority or interest under, or because of the existence of, this Agreement.
11.10 SUBMISSION TO JURISDICTION; WAIVERS. (a) Each party to this
Agreement hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any of the other Credit Documents,
or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in subsection 11.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
90
(b) Each party hereto unconditionally waives trial by jury in any
legal action or proceeding referred to in paragraph (a) above and any
counterclaim therein.
11.11 RELEASES. The Administrative Agent, the Collateral Agent and
the Lenders agree to cooperate with the Company and its Subsidiaries with
respect to any sale or other disposition permitted by subsection 8.5 and
promptly take such action and execute and deliver such instruments and documents
necessary to release the liens and security interests created by the Security
Documents relating to any of the assets or property affected by any such sale
permitted by subsection 8.5 including, without limitation, any necessary release
or satisfaction of a Mortgage in properly recordable form and any Uniform
Commercial Code amendment, release or termination or partial release or
termination statements.
11.12 INTEREST. Each provision in this Agreement and each other
Credit Document is expressly limited so that in no event whatsoever shall the
amount paid, or otherwise agreed to be paid, by the Company for the use,
forbearance or detention of the money to be loaned under this Agreement or any
other Credit Document or otherwise (including any sums paid as required by any
covenant or obligation contained herein or in any other Credit Document which is
for the use, forbearance or detention of such money), exceed that amount of
money which would cause the effective rate of interest to exceed the highest
lawful rate permitted by applicable law (the "HIGHEST LAWFUL RATE"), and all
amounts owed under this Agreement and each other Credit Document shall be held
to be subject to reduction to the effect that such amounts so paid or agreed to
be paid which are for the use, forbearance or detention of money under this
Agreement or such Credit Document shall in no event exceed that amount of money
which would cause the effective rate of interest to exceed the Highest Lawful
Rate. Notwithstanding any provision in this Agreement or any other Credit
Document to the contrary, if the maturity of the Loans or the obligations in
respect of the other Credit Documents are accelerated for any reason, or in the
event of any prepayment of all or any portion of the Loans or the obligations in
respect of the other Credit Documents by the Company or in any other event,
earned interest on the Loans and such other obligations of the Company may never
exceed the Highest Lawful Rate, and any unearned interest otherwise payable on
the Loans or the obligations in respect of the other Credit Documents that is in
excess of the Highest Lawful Rate shall be cancelled automatically as of the
date of such acceleration or prepayment or other such event and (if theretofore
paid) shall, at the option of the holder of the Loans or such other obligations,
be either refunded to the Company or credited on the principal of the Loans. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Company and the Lenders shall,
to the maximum extent permitted by applicable law, amortize, prorate, allocate
and spread, in equal parts during the period of the actual term of this
Agreement, all interest at any time contracted for, charged, received or
reserved in connection with this Agreement.
11.13 SPECIAL INDEMNIFICATION. Notwithstanding any provision in this
Agreement to the contrary, (A) each Lender, or Transferee of any Lender pursuant
to subsection 11.6(g) of this Agreement, shall indemnify the Company, the
Administrative Agent and the Collateral Agent, and hold each of them harmless
against any and all payments, expenses or taxes which the Company, the
Administrative Agent or the Collateral Agent may become subject to or obligated
to pay if and to the extent that, (i) on the Effective Date or the effective
date of transfer, as the case may be, such Lender, or such Transferee of a
Lender pursuant to subsection 11.6(g) of this Agreement, (a) makes the
representation and covenants set forth in subsection 4.11(d)(2) of this
Agreement, or, in the case of a Transferee, pursuant to subsection 11.6(g)(2) of
this Agreement
91
and the Assignment and Acceptance and (b) is not in fact also qualified to make
the representation and covenants set forth in subsection 4.11(d)(1) of this
Agreement or, in the case of a Transferee, pursuant to subsection 11.6(g)(1) of
this Agreement and the Assignment and Acceptance and (ii) as a result of any
Change in Law or compliance by such Lender, or Transferee, with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority the Company, the Administrative Agent or the
Collateral Agent are required to make any additional payments on account of U.S.
withholding taxes and amounts related thereto with respect to any payments under
this Agreement, any Note, or a Eurodollar Loan, made prior to such Change in Law
or request or directive, none of which payments would have been required if such
Lender, or Transferee, was qualified on the Effective Date or the date of the
transfer, as the case may be, to make the representation and covenants set forth
in subsection 4.11(d)(1) of this Agreement or pursuant to subsection 11.6(g)(1)
of this Agreement and the Assignment and Acceptance, as the case may be, and (B)
each Lender, or Transferee, agrees that to the extent any amount payable by such
Lender or Transferee pursuant to this subsection 11.13 remains unpaid on any
Interest Payment Date or the date on which any prepayment is made, the Company
shall have the right to set-off against any payment due to such Lender or
Transferee on such date any amounts owing to the Company pursuant to this
subsection 11.13.
11.14 PERMITTED PAYMENTS AND TRANSACTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company and its
Subsidiaries shall be permitted to pay fees and expenses pursuant to or in
respect of, the following agreements, and, in the case of clauses (c) and (d)
below, to engage in the following transactions: (a) agreements with any Person
or Persons providing for the payment of customary fees in connection with
serving as a director of the Company or any Subsidiary of the Company; (b)
agreements providing for the payment of commercially reasonable fees in
connection with any permitted financing, refinancing, sale, transfer, sale and
leaseback or other permitted disposition of any assets of the Company or its
Subsidiaries; (c) the borrowing of any Indebtedness to the extent, and upon the
terms and conditions, the same is expressly permitted under subsection 8.1; (d)
retiring all of the shares of its preferred stock which were held by Holdings
and contributed to the Company in connection with the IPO; and (e) agreements
providing for commercially reasonable fees in connection with any permitted
purchase or acquisition of stock or assets by the Company or any of its
Subsidiaries.
92
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
PRIMECO INC.
By:
------------------------------------
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent,
Issuing Lender and a Lender
By:
------------------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent and a Lender
By:
------------------------------------
Title:
BANKERS TRUST COMPANY
By:
------------------------------------
Title:
93
BANQUE PARIBAS
By:
------------------------------------
Title:
By:
------------------------------------
Title:
00
XXXXX XXXXX XXXXXXXX XXXX XX
XXXXX XXXXXXXX
By:
------------------------------------
Title:
By:
------------------------------------
Title:
95
FLEET BANK
By:
------------------------------------
Title:
96
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
------------------------------------
Title:
97
BANK OF TOKYO TRUST COMPANY
By:
------------------------------------
Title:
98
THE FIRST NATIONAL BANK OF BOSTON
By:
------------------------------------
Title:
99
XXXXXX FINANCIAL, INC.
By:
------------------------------------
Title:
By:
------------------------------------
Title:
100
SUMITOMO BANK LIMITED (HOUSTON)
By:
------------------------------------
Title:
By:
------------------------------------
Title:
101
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
------------------------------------
Title:
102
CHANCELLOR SENIOR SECURED MANAGEMENT
By:
------------------------------------
Title:
000
XXX XXXXXX XXXXXXX PRIME RATE
INCOME TRUST
By:
------------------------------------
Title:
104
CRESCENT/MACH I PARTNERS, L.P.
By its General Partner
CRESCENT MACH I G.P. CORPORATION
By its attorney-in-fact
CRESCENT CAPITAL CORPORATION
By:
------------------------------------
Title:
SCHEDULE I
LIST OF ADDRESSES FOR NOTICES;
COMMITMENT AMOUNTS
THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNTS:
Revolving Credit Commitment: $22,500,000
Term Loan Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 12.85714%
Term Loan 12.14575%
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxx Xxxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $20,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 11.42857%
2
THE CIT GROUP/BUSINESS CREDIT, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $20,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 11.42857%
BANQUE PARIBAS
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.57143%
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Capital Markets Group - Corporate Finance Division
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000-0000
Attn: Xx Xxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.57143%
3
FLEET BANK
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.57143%
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Koji Sasayama
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.57143%
BANK OF TOKYO TRUST COMPANY
1251 Avenue of the Americas
New York, New York 10116-3139
Attn: Xxxx Strobe
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $15,000,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.57143%
4
THE FIRST NATIONAL BANK OF BOSTON
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-05
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $12,500,000
COMMITMENT PERCENTAGE:
Revolving Credit 7.14286%
XXXXXX FINANCIAL, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $12,500,000
COMMITMENT PERCENTAGE:
Revolving Credit 7.14286%
SUMITOMO BANK LIMITED (HOUSTON)
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Revolving Credit Commitment: $12,500,000
COMMITMENT PERCENTAGE:
Revolving Credit 8.00000%
5
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
000 Xxxxxxxx Xxxx Xxxx
Xxxx 0X
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Term Loan Commitment: $41,500,000
COMMITMENT PERCENTAGE:
Term Loan 33.60324%
CHANCELLOR SENIOR SECURED MANAGEMENT
1166 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Term Loan Commitment: $30,000,000
COMMITMENT PERCENTAGE:
Term Loan 24.29150%
VAN XXXXXX XXXXXXX PRIME RATE INCOME TRUST
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Term Loan Commitment: $29,500,000
COMMITMENT PERCENTAGE:
Term Loan 23.88664%
6
CRESCENT/MACH I PARTNERS
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
COMMITMENT AMOUNT:
Term Loan Commitment: $7,500,000
COMMITMENT PERCENTAGE:
Term Loan 6.07287%
