Exhibit 10.20
WACHOVIA
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CREDIT AGREEMENT
Dated as of April 19, 2005
among
XXXX XXXXX & ASSOCIATES, INC.,
as Borrower,
CERTAIN DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors
THE LENDERS PARTIES HERETO
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
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WACHOVIA CAPITAL MARKETS, LLC,
As Sole Lead Arranger, Manager and Book Runner
Prepared by:
Xxxxx & Xxx Xxxxx
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.......................................... 1
1.1 Definitions.......................................... 1
1.2 Computation of Time Periods.......................... 16
1.3 Accounting Terms..................................... 16
SECTION 2 CREDIT FACILITY...................................... 17
2.1 Revolving Loans...................................... 17
2.2 [Intentionally left blank]........................... 18
2.3 Swingline Loan Subfacility........................... 18
2.4 Letter of Credit Subfacility......................... 19
2.5 Additional Loans..................................... 22
2.6 Default Rate......................................... 22
2.7 Extension and Conversion............................. 22
2.8 Prepayments.......................................... 23
2.9 Termination and Reduction of Commitments............. 23
2.10 Fees................................................. 24
2.11 Computation of Interest and Fees..................... 24
2.12 Pro Rata Treatment and Payments...................... 25
2.13 Non-Receipt of Funds by the Administrative Agent..... 26
2.14 Inability to Determine Interest Rate................. 27
2.15 Illegality........................................... 27
2.16 Requirements of Law.................................. 27
2.17 Indemnity............................................ 27
2.18 Taxes................................................ 29
2.19 Indemnification; Nature of Issuing Lender's Duties... 30
2.20 Replacement of Lenders............................... 31
SECTION 3 REPRESENTATIONS AND WARRANTIES....................... 31
3.1 Existing Indebtedness................................ 32
3.2 Financial Statements................................. 32
3.3 No Material Adverse Change........................... 32
3.4 Organization; Existence.............................. 32
3.5 Authorization; Power; Enforceable Obligations........ 33
3.6 Consent; Government Authorizations................... 33
3.7 No Material Litigation............................... 33
3.8 No Default........................................... 33
3.9 Taxes................................................ 33
3.10 ERISA................................................ 34
3.11 Governmental Regulations, Etc........................ 35
3.12 Subsidiaries......................................... 35
3.13 Use of Proceeds...................................... 36
3.14 Contractual Obligations; Compliance with Laws;
No Conflicts......................................... 36
3.15 Accuracy and Completeness of Information............. 36
3.16 Environmental Matters................................ 37
3.17 Solvency............................................. 37
3.18 No Burdensome Restrictions........................... 37
3.19 Title to Property; Leases............................ 38
3.20 Insurance............................................ 38
3.21 Licenses and Permits................................. 38
3.22 Anti-Terrorism Laws.................................. 38
SECTION 4 CONDITIONS........................................... 38
4.1 Conditions to Closing................................ 38
4.2 Conditions to All Extensions of Credit............... 40
SECTION 5 AFFIRMATIVE COVENANTS................................ 41
5.1 Financial Statements................................. 41
5.2 Certificates; Other Information...................... 42
5.3 Notices.............................................. 42
5.4 Maintenance of Existence; Compliance with Laws;
Contractual Obligations.............................. 43
5.5 Maintenance of Property; Insurance................... 43
5.6 Inspection of Property; Books and Records;
Discussions.......................................... 44
5.7 Use of Proceeds...................................... 44
5.8 Additional Guarantors................................ 44
5.9 Financial Covenants.................................. 44
5.10 Payment of Obligations............................... 45
5.11 Environmental Laws................................... 45
SECTION 6 NEGATIVE COVENANTS................................... 46
6.1 Indebtedness......................................... 46
6.2 Liens................................................ 46
6.3 Nature of Business................................... 46
6.4 Mergers, Sale of Assets and Indebtedness of
Subsidiaries......................................... 47
6.5 Advances, Investments and Loans...................... 47
6.6 Transactions with Affiliates......................... 48
6.7 Fiscal Year; Organizational Documents; Material
Contracts............................................ 48
6.8 Limitation on Restricted Actions..................... 48
6.9 Restricted Payments.................................. 49
6.10 Sale Leasebacks...................................... 49
SECTION 7 EVENTS OF DEFAULT.................................... 49
7.1 Events of Default.................................... 49
7.2 Acceleration; Remedies............................... 51
SECTION 8 AGENCY PROVISIONS.................................... 52
8.1 Appointment.......................................... 52
8.2 Delegation of Duties................................. 52
8.3 Exculpatory Provisions............................... 52
8.4 Reliance by Administrative Agent..................... 52
8.5 Notice of Default.................................... 53
8.6 Non-Reliance on Administrative Agent and Other
Lenders.............................................. 53
8.7 Indemnification...................................... 53
8.8 Administrative Agent in Its Individual Capacity...... 54
8.9 Successor Administrative Agent....................... 54
8.10 Patriot Act Notice................................... 54
8.11 Other Agents, Arrangers and Managers................. 54
SECTION 9 GUARANTY............................................. 55
9.1 The Guaranty......................................... 55
9.2 Bankruptcy........................................... 55
9.3 Nature of Liability.................................. 56
9.4 Independent Obligation............................... 56
9.5 Authorization........................................ 56
9.6 Reliance............................................. 56
9.7 Waiver............................................... 56
9.8 Limitation on Enforcement............................ 57
9.9 Confirmation of Payment.............................. 58
SECTION 10 MISCELLANEOUS....................................... 58
10.1 Amendments and Waivers............................... 58
10.2 Notices.............................................. 58
10.3 No Waiver; Cumulative Remedies....................... 61
10.4 Survival of Representations and Warranties........... 61
10.5 Payment of Expenses and Taxes........................ 61
10.6 Successors and Assigns; Participations; Purchasing
Lenders.............................................. 62
10.7 Adjustments; Set-off................................. 64
10.8 Table of Contents and Section Headings............... 65
10.9 Counterparts......................................... 65
10.10 Effectiveness..................................... 65
10.11 Severability...................................... 65
10.12 Integration....................................... 65
10.13 GOVERNING LAW..................................... 65
10.14 Arbitration....................................... 66
10.15 Consent to Jurisdiction and Service of Process.... 67
10.16 Confidentiality................................... 67
10.17 Acknowledgments................................... 68
10.18 Waivers of Jury Trial............................. 68
SCHEDULES
Schedule 1.1 Form of Account Designation Letter
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.7 Form of Notice of Extension/Conversion
Schedule 2.18 2.18 Certificate
Schedule 3.1 Indebtedness
Schedule 3.12 Subsidiaries
Schedule 3.20 Insurance
Schedule 4.1(d) Form of Secretary's Certificate
Schedule 5.2(b) Form of Officer's Compliance Certificate
Schedule 5.8 Form of Joinder Agreement
Schedule 6.2 Liens
Schedule 10.2 Lenders' Lending Offices
Schedule 10.6(c) Form of Commitment Transfer Supplement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 19, 2005 (the "Credit
Agreement"), is by and among XXXX XXXXX & ASSOCIATES, INC., a Delaware
corporation, (the "Borrower"), those Domestic Subsidiaries of the Borrower
identified as "Guarantors" on the signature pages hereto and such other
Domestic Subsidiaries of the Borrower as may from time to time become a
party hereto (the "Guarantors"), the lenders named herein and such other
lenders as may become a party hereto (collectively, the "Lenders" and
individually, a "Lender") and WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$150,000,000 revolving credit facility for the purposes hereinafter set
forth; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
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1.1 Definitions.
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As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"AAA" means the American Arbitration Association.
"Account Designation Letter" means the Notice of Account Designation
Letter dated the Closing Date from the Borrower to the Administrative Agent
in substantially the form attached hereto as Schedule 1.1.
"Administrative Agent" has the meaning set forth in the first paragraph
hereof, together with any successors or assigns.
"Administrative Agent's Fees" has the meaning set forth in Section
2.10(d).
"Affiliate" means as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, a Person shall be
deemed to be "controlled by" a Person if such Person possesses, directly or
indirectly, power either (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b) to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Aggregate Revolving Committed Amount" means the aggregate amount of
Commitments in effect from time to time, being initially One Hundred Fifty
Million Dollars ($150,000,000) (as such amount may be increased as provided
in Section 2.5 or reduced as provided in Section 2.9 from time to time).
"Alternate Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus / of 1%
or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have reasonably determined (which determination
shall be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Alternate Base Rate
shall be determined without regard to clause (a) of the first sentence of
this definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Alternate Base Rate Loans" means Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"Anti-Terrorism Laws" has the meaning set forth in Section 3.22.
"Applicable Percentage" means, for any day, the rate per annum set
forth below opposite the applicable level then in effect, it being
understood that the Applicable Percentage for (a) Revolving Loans that are
Alternate Base Rate Loans shall be the percentage set forth under the column
"Alternate Base Rate Margin for Revolving Loans", (b) Revolving Loans that
are LIBOR Rate Loans shall be the percentage set forth under the column
"LIBOR Rate Margin for Revolving Loans and Letter of Credit Fee", (c) the
Letter of Credit Fee shall be the percentage set forth under the column
"LIBOR Rate Margin for Revolving Loans and Letter of Credit Fee" and (d) the
Unused Fee shall be the percentage set forth under the column "Unused Fee":
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Applicable Percentage
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LIBOR Rate
Alternate Margin for
Base Rate Revolving
Margin for Loans and
Revolving Letter of Unused
Level Leverage Ratio Loans Credit Fee Fee
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I >= 2.25 to 1.0 0.5000% 1.500% 0.300%
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II < 2.25 to 1.0 but 0.2500% 1.250% 0.250%
>= 1.50 to 1.0
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III < 1.50 to 1.0 but 0.1250% 1.125% 0.225%
>= 0.75 to 1.0
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IV < 0.75 to 1.0 0.0000% 1.000% 0.200%
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The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date
on which the Administrative Agent has received from the Borrower the
financial information and certifications required to be delivered to the
Administrative Agent and the Lenders in accordance with the provisions of
Sections 5.1(a) and (b) and Section 5.2(b) (each an "Interest Determination
Date"). Such Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date. The
initial Applicable Percentages shall be based on Level IV until the first
Interest Determination Date occurring after the delivery of the officer's
compliance certificate pursuant to Section 5.2(b) for the quarter ending
March 31, 2005. After the Closing Date, if the Borrower shall fail to
provide the quarterly financial information and certifications in accordance
with the provisions of Sections 5.1(a) and (b) and Sections 5.2(a) and (b),
the Applicable Percentage from such Interest Determination Date shall, on
the date five (5) Business Days after the date by which the Borrower was so
required to provide such financial information and certifications to the
Administrative Agent and the Lenders, be based on Level I until such time as
such information and certifications are provided, whereupon the Level shall
be determined by the then current Leverage Ratio.
"Arbitration Rules" means the Commercial Financial Disputes Arbitration
Rules of the AAA.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Borrower" has the meaning set forth in the first paragraph hereof,
together with any successors or assigns.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday on which commercial banks are open for business in Xxxxxxxxx, Xxxxx
Xxxxxxxx xxx Xxx Xxxx, Xxx Xxxx; except that when used in connection with a
LIBOR Rate Loan, such day shall also be a day on which dealings between
banks are carried on in London, England in deposits of Dollars.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease on
the balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of capital stock, (c) in the case of a partnership, partnership interests
(whether general or limited), (d) in the case of a limited liability
company, membership interests and (e) any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distribution of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition ("Government
Obligations"), (b) U.S. dollar denominated (or foreign currency fully
hedged) time deposits, certificates of deposit, Eurodollar time deposits and
Eurodollar certificates of deposit of (i) any United States commercial bank
of recognized standing having capital and surplus in excess of $250,000,000
or (ii) bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case
with maturities of not more than 364 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including a Lender) or a
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America, (e) obligations of any state of the United States
or any political subdivision thereof for the payment of the principal and
redemption price of and interest on which there shall have been irrevocably
deposited Government Obligations maturing as to principal and interest at
times and in amounts sufficient to provide such payment, (f) Investments,
classified in accordance with GAAP as current assets of the Borrower or its
Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, that are administered by
financial institutions that have the highest rating obtainable from either
Moody's or S&P, and the portfolios of which are limited solely to
Investments (i) in corporate obligations having a remaining maturity of less
than two years, issued by corporations having outstanding comparable
obligations that are rated in the two highest categories of Moody's and S&P
or no lower than the two highest long term debt ratings categories of either
Moody's or S&P or (ii) of the character, quality and maturity described in
clauses (a)-(e) of this definition and (g) corporate investment grade debt
securities rated BBB+ or better by S&P and Baa1 or better by Moody's and
maturing within 60 days of the date of acquisition.
"Change of Control" means (a) any Person or two or more Persons acting
in concert shall have acquired "beneficial ownership," directly or
indirectly, of, or shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of, or control over, Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 40% or more of the combined voting power of all Voting Stock of
the Borrower, or (b) Continuing Directors shall cease for any reason to
constitute a majority of the members of the board of directors of the
Borrower then in office. As used herein, "beneficial ownership" shall have
the meaning provided in Rule 13d-3 of the Securities and Exchange Commission
under the Securities Act of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Commitment" means the Revolving Commitment, the LOC Commitment and the
Swingline Commitment, individually or collectively, as appropriate.
"Commitment Percentage" means, for each Lender, a fraction (expressed
as a decimal) the numerator of which is the Commitment of such Lender at
such time and the denominator of which is the Aggregate Revolving Committed
Amount at such time. The initial Commitment Percentages are set out on
Schedule 2.1(a).
"Commitment Period" means the period from and including the Closing
Date to but not including the earlier of (a) the Maturity Date, or (b) the
date on which the Commitments terminate in accordance with the provisions of
this Credit Agreement.
"Commitment Transfer Supplement" means a Commitment Transfer Supplement
substantially in the form of Schedule 10.6(c).
"Consolidated Assets" means, at any time, the amount representing the
assets of the Borrower and the Subsidiaries that would appear on a
consolidated balance sheet of the Borrower and its Subsidiaries at such time
prepared in accordance with GAAP.
"Consolidated EBIT" means, for any period, (a) Consolidated Net Income
for such period plus (b) the sum of the following to the extent deducted in
calculating Consolidated Net Income: (i) Consolidated Interest Expense for
such period and (ii) the provision for Federal, state, local and foreign
income taxes payable by the Borrower and its Subsidiaries for such period
and minus (c) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries for such period and (ii) all
non-cash items increasing Consolidated Net Income for such period.
"Consolidated EBITDA" means, for any period, (a) Consolidated Net
Income for such period plus (b) the sum of the following to the extent
deducted in calculating Consolidated Net Income: (i) Consolidated Interest
Expense for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such
period, (iii) depreciation and amortization expense for such period, (iv)
any expense directly related to or associated with FASB Statement No. 123
(revised 2004) Share-Based Payment (Statement No. 123 (R)), which is
effective for the Borrower for periods beginning after June 30, 2005, and
(v) other non-recurring expenses of the Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in
such period or any future period and minus (c) the following to the extent
included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Borrower and its Subsidiaries
for such period and (ii) all non-cash items increasing Consolidated Net
Income for such period.
"Consolidated Funded Debt" means, as of any date of determination,
Funded Debt of the Borrower and its Subsidiaries on a consolidated basis.
"Consolidated Interest Expense" means, for any period, all Interest
Expense (excluding amortization of debt discount and premium, but including
the interest component under Capital Leases) for such period of the Borrower
and its Subsidiaries on a consolidated basis.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and
its Subsidiaries (excluding extraordinary gains but including extraordinary
losses) for that period.
"Consolidated Net Worth" means, as of any date of determination, (a)
the shareholders' equity of the Borrower and its Subsidiaries minus (b) the
sum of treasury stock (if included in shareholders' equity), all as would be
reflected on a consolidated balance sheet of the Borrower and its
Subsidiaries as determined in accordance with GAAP.
"Continuing Directors" means, during any period of up to 24 consecutive
months commencing after the Closing Date, individuals who at the beginning
of such 24 month period were directors of the Borrower (together with any
new director whose election by the Borrower's board of directors or whose
nomination for election by the Borrower's shareholders was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved).
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, the Fee Letter, any Joinder
Agreement and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto (excluding, however,
any Hedging Agreement).
"Credit Party" means any of the Borrower or the Guarantors.
"Credit Party Obligations" means, without duplication, (a) all of the
obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Administrative Agent, whenever arising, under this Credit
Agreement or any of the other Credit Documents (including, but not limited
to, any interest accruing after the occurrence of a filing of a petition of
bankruptcy under the Bankruptcy Code with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code) and (b) all liabilities and obligations, whenever arising, owing from
any Credit Party or any of its Subsidiaries to any Hedging Agreement
Provider arising under any Hedging Agreement permitted pursuant to
Section 6.1(e).
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) has failed to make a Loan required pursuant to the terms of this Credit
Agreement, (b) has failed to pay to the Administrative Agent or any Lender
an amount owed by such Lender pursuant to the terms of the Credit Agreement
or any other of the Credit Documents, or (c) has been deemed insolvent or
has become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar proceeding.
"Dispute" means any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Credit
Agreement and other Credit Documents.
"Dollars" and "$" means dollars in lawful currency of the United States
of America.
"Domestic Subsidiary" means any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Environmental Laws" means any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements or any Governmental Authority or
other Requirement of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time be in effect during the
term of this Credit Agreement.
"Equity Issuance" means any issuance by any Credit Party or any
Subsidiary to any Person that is not a Credit Party of shares of its Capital
Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with
any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is a
member of a group which includes any Credit Party and which is treated as a
single employer under Sections 414(b) or (c) of the Code.
"Eurodollar Reserve Percentage" means for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next
higher 1/100th of 1%) which is in effect for such day as prescribed by the
Federal Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or
emergency reserves) in respect of Eurocurrency liabilities, as defined in
Regulation D of such Board as in effect from time to time, or any similar
category of liabilities for a member bank of the Federal Reserve System in
New York City.
"Event of Default" means such term as defined in Section 7.1.
"Extension of Credit" means, as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of Credit
by such Lender.
"Existing EFT Commerce Bank Facility" means the Borrower's existing
$5,000,000 EFT credit line with Commerce Bank, N.A. which will remain in
place after the execution of this Credit Agreement.
"Existing First State Bank Facility" means the Borrower's existing
$8,000,000 credit line with First State Bank of Xxxxx secured by $1,000,000
of assets, such credit line to remain in place after execution of this
Credit Agreement.
"Existing $25 Million Commerce Bank Facility" means the Borrower's
existing $25,000,000 unsecured credit line with Commerce Bank, N.A. which
will be repaid in full and terminated upon the execution of this Credit
Agreement.
"Fee Letter" means that certain letter agreement, dated as of January
10, 2005, among the Administrative Agent, the Lead Arranger and the
Borrower, as amended, modified, supplemented or replaced from time to time.
"Fees" means all fees payable pursuant to Section 2.10.
"Federal Funds Rate" means, for any day, the rate of interest per annum
(rounded upwards, if necessary, to the nearest whole multiple of 1/100 of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System of the United States
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day and (b) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
reasonably determined by the Administrative Agent.
"Funded Debt" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
or upon which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
incurred, issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof) that would appear as liabilities on a balance sheet of such Person
(provided, however, earn-out obligations incurred in connection with
acquisitions shall not be deemed to be "Funded Debt" unless such obligations
remain unpaid more than 60 days after such obligations are calculated), (e)
the principal portion of all obligations of such Person under Capital
Leases, (f) all obligations of such Person under Hedging Agreements to the
extent required to be accounted for as a liability under GAAP, excluding any
portion thereof which would be accounted for as interest expense under GAAP,
(g) the maximum amount of all letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (h)
all preferred Capital Stock or other equity interests issued by such Person
and which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments prior to
the date six months after the Maturity Date, redemption prior to the date
six months after the Maturity Date or other acceleration, (i) the principal
balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product, (j) all Indebtedness of others of the type described in clauses (a)
through (i) hereof secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
on, or payable out of the proceeds of production from, property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed, (k) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person of the type described in clauses (a) through
(i) hereof, and (l) all Indebtedness of the type described in clauses (a)
through (i) hereof of any partnership or unincorporated joint venture in
which such Person is a general partner or a joint venturer.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3
hereof.
"Government Acts" has the meaning set forth in Section 2.19(a).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantors" means (a) any of the Subsidiaries identified as a
"Guarantor" on the signature pages hereto and (b) any Person which executes
a Joinder Agreement, together with their successors and permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in Section 9.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or any property constituting security
therefore, (b) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any holder
of Indebtedness of such other Person, (c) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder of
such Indebtedness, or (d) to otherwise assure or hold harmless the holder of
such Indebtedness against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount
(or maximum principal amount, if larger) of the Indebtedness in respect of
which such Guaranty Obligation is made.
"Hedging Agreement Provider" means any Person that enters into a
Hedging Agreement with a Credit Party or any of its Subsidiaries that is
permitted by Section 6.1(e) to the extent such Person is a (a) Lender, (b)
an Affiliate of a Lender or (c) any other Person that was a Lender (or an
Affiliate of a Lender) at the time it entered into the Hedging Agreement but
has ceased to be a Lender (or whose Affiliate has ceased to be a Lender)
under the Credit Agreement.
"Hedging Agreements" means, with respect to any Person, any non-
speculative agreement entered into to protect such Person against
fluctuations in interest rates, or currency or raw materials values,
including, without limitation, any interest rate swap, cap or collar
agreement or similar arrangement between such Person and one or more
counterparties, any foreign currency exchange agreement, currency protection
agreements, commodity purchase or option agreements or other interest or
exchange rate or commodity price hedging agreements.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
or upon which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary
course of business and due within six (6) months of the incurrence thereof)
that would appear as liabilities on a balance sheet of such Person
(provided, however, earn-out obligations incurred in connection with
acquisitions shall not be deemed to be "Indebtedness" unless such
obligations remain unpaid more than 60 days after such obligations are
calculated), (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed;
provided that so long as such Indebtedness is non-recourse to such Person,
only the portion of such obligations which is secured shall constitute
Indebtedness hereunder, (g) all Guaranty Obligations of such Person with
respect to Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases plus any accrued interest
thereon, (i) all obligations of such Person under Hedging Agreements to the
extent required to be accounted for as a liability under GAAP, excluding any
portion thereof which would be accounted for as interest expense under GAAP,
(j) the maximum amount of all letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (k)
all preferred Capital Stock or other equity interest issued by such Person
and which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments prior to
the date six months after the Maturity Date, redemption prior to the date
six months after the Maturity Date or other acceleration, (l) the principal
balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
plus any accrued interest thereon, and (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer.
"Insolvency" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as
used in Section 4245 of ERISA.
"Intangibles" means all assets which would be shown as intangible
assets on a balance sheet prepared in accordance with GAAP.
"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (i) Consolidated EBIT for the period of the four
fiscal quarters ending on such date to (ii) Consolidated Interest Expense
paid or payable in cash during such period.
"Interest Expense" means, with respect to any Person for any period,
the sum of the amount of interest paid or accrued in respect of such period.
"Interest Payment Date" means (a) as to any Alternate Base Rate Loan or
Swingline Loan, the last day of each March, June, September and December and
on the Maturity Date, (b) as to any LIBOR Rate Loan having an Interest
Period of three months or less, the last day of such Interest Period, and
(c) as to any LIBOR Rate Loan having an Interest Period longer than three
months, each day which is three months after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period" means, as to any LIBOR Rate Loan, a period of one,
two, three or six months duration, as the Borrower may elect, commencing in
each case, on the date of the borrowing (including conversions, extensions
and renewals); provided, however, (i) if any Interest Period would end on a
day which is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day (except that in the case of LIBOR Rate
Loans where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (ii) no Interest
Period shall extend beyond the Maturity Date, (iii) in the case of LIBOR
Rate Loans, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last day of such
calendar month; (iv) if the Borrower shall fail to give notice as provided
above, the Borrower shall be deemed to have selected an Alternate Base Rate
Loan to replace the affected LIBOR Rate Loan and (v) no more than five (5)
LIBOR Rate Loans may be in effect at any time. For purposes hereof, LIBOR
Rate Loans with different Interest Periods shall be considered as separate
LIBOR Rate Loans, even if they shall begin on the same date and have the
same duration, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new LIBOR Rate Loan with a single Interest
Period.
"Investment" has the meaning set forth in Section 6.5.
"Issuing Lender" means Wachovia.
"Issuing Lender Fees" has the meaning set forth in Section 2.10(c).
"Joinder Agreement" means a Joinder Agreement in substantially the form
of Schedule 5.8, executed and delivered by each Person required to become a
Guarantor in accordance with the provisions of Section 5.8.
"Lead Arranger" means Wachovia Capital Markets, LLC, together with its
successors and assigns.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and their successors and assigns.
"Letters of Credit" means any letter of credit issued by the Issuing
Lender pursuant to the terms of Section 2.4 hereof, as such Letters of
Credit may be amended, restated, modified, extended, renewed or replaced
from time to time. The term "Letters of Credit" shall not include any
letters of credit issued under the Existing First State Bank Credit
Facility.
"Letter of Credit Fee" has the meaning set forth in Section 2.10(b).
"Leverage Ratio" means as of the last day of any fiscal quarter, the
ratio of (a) Consolidated Funded Debt as of such day to (b) Consolidated
EBITDA for the period of the four fiscal quarters ending on such day.
"LIBOR" means, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate
Loan for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%). If, for any
reason, neither of such rates is available, then "LIBOR" shall mean the rate
per annum at which, as determined by the Administrative Agent, Dollars in an
amount comparable to the Loans then requested are being offered to leading
banks at approximately 11:00 A.M. London time, two (2) Business Days prior
to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market
for a period equal to the Interest Period selected.
"LIBOR Lending Office" means, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on Schedule 10.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of
such Lender at which the LIBOR Rate Loans of such Lender are to be made.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent
pursuant to the following formula:
LIBOR
LIBOR Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
by reference to the LIBOR Rate.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any conditional sale
or other title retention agreement, any financing or similar statement or
notice filed under the Uniform Commercial Code as adopted and in effect in
the relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means a Revolving Loan and/or a Swingline Loan, as
appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit and with respect to each Lender, the commitment of such
Lender to purchase participation interests in the Letters of Credit up to
such Lender's LOC Committed Amount as specified in Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the provisions
hereof.
"LOC Commitment Percentage" means, for each Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 10.6(c).
"LOC Committed Amount" has the meaning set forth in Section 2.4(a).
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or (b) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the maximum amount
which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed.
"Mandatory Borrowing" with respect to (a) Swingline Loans, has the
meaning set forth in Section 2.3(b); and (b) with respect to Letters of
Credit, the meaning set forth in Section 2.4(e).
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties or prospects of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Credit Party to
perform its obligations under any Credit Document to which it is a party; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Credit Party of any Credit Document to which it
is a party.
"Material Contract" means any contract or other arrangement, whether
written or oral, to which the Borrower or any of its Subsidiaries is a party
as to which the Borrower or any of its Subsidiaries is obligated to pay or
is entitled to receive $10,000,000 or more in any 12 month period.
"Material Subsidiary" means, at any time, each Subsidiary having (on a
consolidated basis with its Subsidiaries) at such time total (gross)
revenues for the most recently ended fiscal year in excess of 5.0% of the
total (gross) revenues of the Borrower and its Subsidiaries for such period.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials, or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means, as to each Lender, April 19, 2010.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer Plan)
which any Credit Party or any ERISA Affiliate and at least one employer
other than the Credit Parties or any ERISA Affiliate are contributing
sponsors.
"Note" or "Notes" means the promissory notes of the Borrower in favor
of each of the Lenders that request such notes (a) evidencing the Revolving
Loans in substantially the form attached as Schedule 2.1(e) or (b)
evidencing the Swingline Loans in substantially the form attached as
Schedule 2.3(d), with the foregoing individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of extension
or conversion in substantially the form of Schedule 2.7, as required by
Section 2.7.
"Participant" means the meaning set forth in Section 10.6(b).
"Participation Interest" means the purchase by a Lender of a
participation interest in Swingline Loans as provided in Section 2.3(b)(ii)
or in Letters of Credit as provided in Section 2.4(c).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" means any acquisition or any series of related
acquisitions by a Credit Party of the assets or a majority of the Voting
Stock of a Person that is incorporated, formed or organized in the United
States, or any division, line of business or other business unit of a Person
that is incorporated, formed or organized in the United States (such Person
or such division, line of business or other business unit of such Person
referred to herein as the "Target"), in each case that is a type of business
(or assets used in a type of business) permitted to be engaged in by the
Credit Parties and their Subsidiaries pursuant to Section 6.3 hereof, so
long as (a) no Default or Event of Default shall then exist or would exist
after giving effect thereto, (b) if any portion of the purchase price for
such acquisition is funded directly or indirectly with Indebtedness, the
Credit Parties (i) certify to the Administrative Agent and the Required
Lenders that the Leverage Ratio will be no greater than 2.25 to 1.0
(calculated on a Pro Forma Basis, with such calculation regarding asset
acquisitions to be made by the Borrower upon reasonable assumptions) and
(ii) demonstrate to the satisfaction of the Agent that immediately after
giving effect to such acquisition the sum of borrowing availability under
the Aggregate Revolving Committed Account plus cash and Cash Equivalents of
the Credit Parties is at least $25,000,000, (c) the Target, if such Person
would be a Material Subsidiary, shall have executed a Joinder Agreement in
accordance with the terms of Section 5.8, (d) the Target has financial
statements available for the most recent four fiscal quarters prior to the
applicable acquisition date and such financial statements have been provided
to the Administrative Agent and (e) such acquisition is not a "hostile"
acquisition and has been approved by the board of directors and/or
shareholders of the applicable Credit Party and the Target.
"Permitted Investments" has the meaning set forth in Section 6.5.
"Permitted Liens" means:
(a) Liens created by or otherwise existing, under or in
connection with this Credit Agreement or the other Credit Documents in
favor of the Lenders;
(b) purchase money Liens securing purchase money indebtedness and
Liens arising in connection with Capital Leases, to the extent each is
permitted under Section 6.1(d);
(c) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace (not to exceed
sixty (60) days), if any, related thereto has not expired or which are
being contested in good faith by appropriate proceedings diligently
pursued, provided that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP (or, in the case of Subsidiaries
with significant operations outside of the United States of America,
generally accepted accounting principles in effect from time to time in
their respective jurisdictions of incorporation);
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than sixty
(60) days or which are being contested in good faith by appropriate
proceedings diligently pursued, provided that (i) any proceedings
commenced for the enforcement of such Liens and encumbrances shall have
been duly suspended and (ii) adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP (or, in the case of Subsidiaries
with significant operations outside of the United States of America,
generally accepted accounting principles in effect from time to time in
their respective jurisdictions of incorporation);
(e) reserves, pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(f) deposits to secure the performance of bids, trade contracts,
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) Liens existing on the Closing Date and set forth on
Schedule 6.2; provided that no such Lien shall at any time be extended
to cover property or assets other than the property or assets subject
thereto on the Closing Date;
(h) Liens permitted by Section 6.1(g);
(i) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses; provided that such extension,
renewal or replacement Lien shall be limited to all or a part of the
property which secured the Lien so extended, renewed or replaced (plus
improvements on such property); and
(j) other Liens in addition to those permitted by the foregoing
clauses securing Indebtedness in an aggregate amount not to exceed
$10,000,000.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which any Credit Party
or any ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by the Wachovia as its prime commercial lending rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is publicly
announced as effective (it being understood and agreed that the Prime Rate
is a reference rate used by the Administrative Agent in determining interest
rates on certain loans and is not intended to be the lowest rate of interest
charged on any extension of credit by the Administrative Agent to any
debtor).
"Pro Forma Basis" means, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the most recent quarter end preceding the
date of such transaction.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchasing Lenders" has the meaning set forth in Section 10.6(c).
"Recovery Event" means the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar
event with respect to any of their respective property or assets.
"Register" has the meaning set forth in Section 10.6(d).
"Regulation T, U, or X" means Regulation T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Related Fund" means, with respect to any Lender, any fund or trust or
entity that invests in commercial bank loans in the ordinary course of
business and is advised or managed by (a) such Lender, (b) an Affiliate of
such Lender, (c) any other Lender or any Affiliate thereof or (d) the same
investment advisor as any Person described in clauses (a) through (c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty-day notice period
is waived.
"Required Lenders" means, at any time, Lenders having more than fifty
percent (50%) of the Commitments, or if the Commitments have been
terminated, Lenders having more than fifty percent (50%) of (a) the
aggregate principal amount of Loans outstanding; provided that the
Commitments of, and outstanding principal amount of Loans owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders or (b) if the Revolving Commitments have
been terminated, the outstanding Revolving Loans and Participation Interests
(including the Participation Interests of the Issuing Lender in any Letters
of Credit and of the Swingline Lender in any Swingline Loans).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its material property is
subject.
"Responsible Officer" means any of the Chief Executive Officer, Chief
Financial Officer and Treasurer or the President of the Borrower.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock
of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(b) any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class
of Capital Stock of the Borrower or any of its Subsidiaries, now or
hereafter outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of the Borrower or any of its
Subsidiaries, now or hereafter outstanding, (d) any payment or prepayment of
principal of, premium, if any, or interest on, redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Indebtedness or (e) the payment by the Borrower or any of its
Subsidiaries of any management or consulting fee to any Person or of any
salary, bonus or other form of compensation to any Person who is directly or
indirectly a significant partner, shareholder, owner or executive officer of
any such Person, to the extent such salary, bonus or other form of
compensation is not included in the corporate overhead of the Borrower or
such Subsidiary.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding up to such Lender's Revolving Committed
Amount as specified in Schedule 2.1(a), as such amount may be reduced from
time to time in accordance with the provisions hereof.
"Revolving Committed Amount" means the amount of each Lender's
Commitment as specified in Schedule 2.1(a), as such amount may be reduced
from time to time in accordance with the provisions hereof.
"Revolving Loans" has the meaning set forth in Section 2.1(a).
"Revolving Note" or "Revolving Notes" shall mean the promissory notes
of the Borrower provided pursuant to Section 2.1(e) in favor of each of the
Lenders evidencing the Revolving Loans, individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"Security" means "security" as defined in Section 2(1) of the
Securities Act of 1933, as amended.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Subordinated Indebtedness" means any Indebtedness (including, without
limitation, any intercompany loans) incurred by any Credit Party that is (a)
specifically subordinated in right of payment to the prior payment of the
Credit Party Obligations on terms acceptable to the Administrative Agent and
the Lenders and (b) evidenced by promissory notes, to the extent such
Indebtedness is owed to another Credit Party, which promissory notes shall
be pledged to the Administrative Agent as Collateral for the Credit Party
Obligations.
"Subsidiary" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
directors or other managers of such corporation, partnership, limited
liability company or other entity (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) are at the time
owned by such Person directly or indirectly through Subsidiaries. Unless
otherwise identified, "Subsidiary" or "Subsidiaries" means Subsidiaries of
the Borrower.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time
outstanding up to the Swingline Committed Amount, and the commitment of the
Lenders to purchase participation interests in the Swingline Loans as
provided in Section 2.3(b)(ii), as such amounts may be reduced from time to
time in accordance with the provisions hereof.
"Swingline Committed Amount" means the amount of the Swingline Lender's
Swingline Commitment as specified in Section 2.3(a).
"Swingline Lender" means Wachovia, in its capacity as such.
"Swingline Loan" or "Swingline Loans" has the meaning set forth in
Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in favor of
the Swingline Lender evidencing the Swingline Loans provided pursuant to
Section 2.3(d), as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Target" has the meaning set forth in the definition of Permitted
Acquisition.
"Taxes" has the meaning set forth in Section 2.18.
"Transfer Effective Date" has the meaning set forth in each Commitment
Transfer Supplement.
"Type" means, as to any Loan, its nature as an Alternate Base Rate
Loan, LIBOR Rate Loan or Swingline Loan, as the case may be.
"Unused Fee" has the meaning set forth in Section 2.10(a).
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
"Wachovia" means Wachovia Bank, National Association and its
successors.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary of which
all of the equity interests (except directors' qualifying shares or shares
aggregating less than 1% of the outstanding shares of such Subsidiary which
are owned by individuals) and voting interests are owned by any one or more
of the Borrower and the Borrower's other Wholly-Owned Subsidiaries at such
time.
1.2 Computation of Time Periods.
---------------------------
All time references in this Credit Agreement and the other Credit
Documents shall be to Charlotte, North Carolina time unless otherwise
indicated. For purposes of computation of periods of time hereunder, the
word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
1.3 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on
a consistent basis. All calculations made for the purposes of determining
compliance with this Credit Agreement (including, without limitation,
calculation of the financial covenants set forth in Section 5.9) shall
(except as otherwise expressly provided herein) be made by application of
GAAP applied on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 5.1 hereof (or, prior to
the delivery of the first financial statements pursuant to Section 5.1,
consistent with the annual audited financial statements referenced in
Section 3.2); provided, however, if (a) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Administrative Agent or the Required Lenders
shall so object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with
the most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITY
---------------
2.1 Revolving Loans.
---------------
(a) Commitment. During the Commitment Period, subject to the terms
and conditions hereof, each Lender severally agrees to make Loans in Dollars
(the "Revolving Loans") to the Borrower from time to time in the amount of
such Lender's Commitment Percentage of such Loans for the purposes
hereinafter set forth; provided that (i) with regard to the Lenders
collectively, the sum of the aggregate principal amount of outstanding
Revolving Loans plus outstanding Swingline Loans plus LOC Obligations shall
not exceed the Aggregate Revolving Committed Amount, and (ii) with regard to
each Lender individually, the sum of the aggregate principal amount of such
Lender's Commitment Percentage of outstanding Revolving Loans plus such
Lender's Commitment Percentage of Swingline Loans plus such Lender's LOC
Commitment Percentage of LOC Obligations shall not exceed such Lender's
Revolving Committed Amount. Revolving Loans may consist of Alternate Base
Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Loan
borrowing by written notice (or telephone notice promptly confirmed in
writing) to the Administrative Agent not later than 11:00 A.M. on the
Business Day of the requested borrowing in the case of Alternate Base
Rate Loans, and on the third Business Day prior to the date of the
requested borrowing in the case of LIBOR Rate Loans. Each such request
for borrowing shall be irrevocable and shall specify (A) that a Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and
(D) whether the borrowing shall be comprised of Alternate Base Rate
Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate
Loans are requested, the Interest Period(s) therefor. If the Borrower
shall fail to specify in any such Notice of Borrowing (1) an applicable
Interest Period in the case of a LIBOR Rate Loan, then such notice
shall be deemed to be a request for an Interest Period of one month, or
(2) the Type of Loan requested, then such notice shall be deemed to be
a request for a Alternate Base Rate Loan hereunder. The Administrative
Agent shall give notice to each Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.1(b)(i), the contents
thereof and each such Lender's share of any borrowing to be made
pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
aggregate principal amount of (A) in the case of LIBOR Rate Loans,
$5,000,000 and integral multiples of $1,000,000 in excess thereof (or
the remaining Aggregate Revolving Committed Amount, if less) and (B) in
the case of Alternate Base Rate Loans, $1,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining Aggregate
Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Commitment
Percentage of each Loan borrowing available to the Administrative Agent
for the account of the Borrower at the office of the Administrative
Agent specified in Section 10.2, or at such office as the
Administrative Agent may designate in writing, by 1:00 P.M. on the date
specified in the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent by
crediting the account designated by the Borrower with the aggregate of
the amounts made available to the Administrative Agent by the Lenders
and in like funds as received by the Administrative Agent.
(c) Repayment. The principal amount of all Loans shall be due and
payable in full on the Maturity Date.
(d) Interest. Subject to the provisions of Section 2.6:
(i) Alternate Base Rate Loans. During such periods as Loans
shall be comprised in whole or in part of Alternate Base Rate Loans,
such Alternate Base Rate Loans shall bear interest at a per annum rate
equal to the Alternate Base Rate plus the Applicable Percentage;
(ii) LIBOR Rate Loans. During such periods as Loans shall be
comprised in whole or in part of LIBOR Rate Loans, such LIBOR Rate
Loans shall bear interest at a per annum rate equal to the LIBOR Rate
plus the Applicable Percentage.
Interest on Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein).
(e) Notes. The Loans shall be further evidenced by a duly executed
Note in favor of each Lender in the form of Schedule 2.1(e) attached hereto,
if requested by such Lender.
(f) Maximum Number of LIBOR Rate Loans. The Borrower will be limited
to a maximum number of five (5) LIBOR Rate Loans outstanding at any time.
For purposes hereof, LIBOR Rate Loans with separate or different Interest
Periods will be considered as separate LIBOR Rate Loans even if their
Interest Periods expire on the same date.
2.2 [Intentionally left blank].
--------------------------
2.3 Swingline Loan Subfacility.
--------------------------
(a) Swingline Commitment. During the Commitment Period, subject
to the terms and conditions hereof, the Swingline Lender, in its
individual capacity, agrees to make certain revolving credit loans to
the Borrower (each a "Swingline Loan" and, collectively, the "Swingline
Loans") for the purposes hereinafter set forth; provided, however, (i)
the aggregate amount of Swingline Loans outstanding at any time shall
not exceed TEN MILLION DOLLARS ($10,000,000) (the "Swingline Committed
Amount"), and (ii) the sum of the aggregate amount of outstanding
Revolving Loans plus Swingline Loans plus LOC Obligations shall not
exceed the Aggregate Revolving Committed Amount. Swingline Loans
hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The Swingline
Lender will make Swingline Loans available to the Borrower on any
Business Day upon request made by the Borrower not later than
12:00 noon on such Business Day. A notice of request for
Swingline Loan borrowing shall be made in the form of Schedule
2.1(b)(i) with appropriate modifications. Swingline Loan
borrowings hereunder shall be made in minimum amounts of $100,000
and in integral amounts of $100,000 in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline Loan
borrowing shall be due and payable on the Maturity Date. The
Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Administrative Agent,
demand repayment of its Swingline Loans by way of a Revolving Loan
borrowing, in which case the Borrower shall be deemed to have
requested a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans in the amount of such Swingline Loans;
provided, however, that, in the following circumstances, any such
demand shall also be deemed to have been given one Business Day
prior to each of (A) the Maturity Date, (B) the occurrence of any
Event of Default described in Section 7.1(e), (C) upon
acceleration of the Credit Party Obligations hereunder, whether on
account of an Event of Default described in Section 7.1(e) or any
other Event of Default and (D) the exercise of remedies in
accordance with the provisions of Section 7.2 hereof (each such
Revolving Loan borrowing made on account of any such deemed
request therefor as provided herein being hereinafter referred to
as a "Mandatory Borrowing"). Each Lender hereby irrevocably
agrees to make such Revolving Loans promptly upon any such request
or deemed request on account of each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and
on the same such date notwithstanding (A) the amount of Mandatory
Borrowing may not comply with the minimum amount for borrowings of
Revolving Loans otherwise required hereunder, (B) whether any
conditions specified in Section 4.2 are then satisfied, (C)
whether a Default or an Event of Default then exists, (D) failure
of any such request or deemed request for Revolving Loans to be
made by the time otherwise required in Section 2.1(b)(i), (E) the
date of such Mandatory Borrowing, or (F) any reduction in the
Revolving Committed Amount or termination of the Revolving
Commitments immediately prior to such Mandatory Borrowing or
contemporaneously therewith. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each Lender hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each
such Lender to share in such Swingline Loans ratably based upon
its respective Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to Section
7.2), provided that (A) all interest payable on the Swingline
Loans shall be for the account of the Swingline Lender until the
date as of which the respective participation is purchased, and
(B) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required
to pay to the Swingline Lender interest on the principal amount of
such participation purchased for each day from and including the
day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such
participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Borrowing, the Federal
Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions of
Section 2.6, Swingline Loans shall bear interest at a per annum rate
equal to the Alternate Base Rate plus the Applicable Percentage for
Revolving Loans that are Alternate Base Rate Loans. Interest on
Swingline Loans shall be payable in arrears on each Interest Payment
Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a
duly executed promissory note of the Borrower to the Swingline Lender
in the original amount of the Swingline Committed Amount and
substantially in the form of Schedule 2.3(d).
2.4 Letter of Credit Subfacility.
----------------------------
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require, during the Commitment Period the Issuing
Lender shall issue, and the Lenders shall participate in, Letters of Credit
for the account of the Borrower from time to time upon request in a form
acceptable to the Issuing Lender; provided, however, that (i) the aggregate
amount of LOC Obligations shall not at any time exceed TEN MILLION DOLLARS
($10,000,000) (the "LOC Committed Amount"), (ii) the sum of outstanding
Revolving Loans plus Swingline Loans plus LOC Obligations shall not at any
time exceed the Aggregate Revolving Committed Amount, (iii) all Letters of
Credit shall be denominated in U.S. Dollars and (iv) Letters of Credit shall
be issued for lawful corporate purposes and may be issued as standby letters
of credit, including in connection with workers' compensation and other
insurance programs. Except as otherwise expressly agreed upon by all the
Lenders, no Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided, however, so long as
no Default or Event of Default has occurred and is continuing and subject to
the other terms and conditions to the issuance of Letters of Credit
hereunder, the expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date not more
than twelve (12) months from the date of extension; provided, further, that
no Letter of Credit, as originally issued or as extended, shall have an
expiry date extending beyond the date which is six (6) Business Days prior
to the Maturity Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry date of each Letter of Credit shall
be a Business Day. Any Letters of Credit issued hereunder shall be in a
minimum original face amount of $50,000 or such lesser amount as the Issuing
Lender may agree. Wachovia shall be the Issuing Lender on all Letters of
Credit issued on or after the Closing Date.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least five (5) Business
Days prior to the requested date of issuance. The Issuing Lender will
promptly upon request provide to the Administrative Agent for dissemination
to the Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto which may
have occurred since the date of any prior report, and including therein,
among other things, the account party, the beneficiary, the face amount,
expiry date as well as any payments or expirations which may have occurred.
The Issuing Lender will further provide to the Administrative Agent promptly
upon request copies of the Letters of Credit. The Issuing Lender will
provide to the Administrative Agent promptly upon request a summary report
of the nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Lender upon issuance of a Letter of Credit
shall be deemed to have purchased without recourse a risk participation from
the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount
equal to its LOC Commitment Percentage of the obligations under such Letter
of Credit and shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the Issuing
Lender therefor and discharge when due, its LOC Commitment Percentage of the
obligations arising under such Letter of Credit. Without limiting the scope
and nature of each Lender's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required hereunder
or under any LOC Document, each such Lender shall pay to the Issuing Lender
its LOC Commitment Percentage of such unreimbursed drawing in same day funds
on the day of notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The obligation of each
Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent. The Borrower shall reimburse the Issuing Lender on
the day of drawing under any Letter of Credit (with the proceeds of a
Revolving Loan obtained hereunder or otherwise) in same day funds as
provided herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided herein, the unreimbursed amount of
such drawing shall bear interest at a per annum rate equal to the Alternate
Base Rate plus the Applicable Percentage plus two percent (2%). Unless the
Borrower shall immediately notify the Issuing Lender and the Administrative
Agent of its intent to otherwise reimburse the Issuing Lender, the Borrower
shall be deemed to have requested a Revolving Loan in the amount of the
drawing as provided in subsection (e) hereof, the proceeds of which will be
used to satisfy the reimbursement obligations. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of set-off, counterclaim or defense
to payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense
based on any failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit.
The Issuing Lender will promptly notify the Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the
Administrative Agent for the account of the Issuing Lender in Dollars and in
immediately available funds, the amount of such Lender's LOC Commitment
Percentage of such unreimbursed drawing. Such payment shall be made on the
day such notice is received by such Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M., otherwise such payment shall be
made at or before 12:00 noon on the Business Day next succeeding the day
such notice is received. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay
to the Administrative Agent for the account of the Issuing Lender interest
on the unpaid amount during the period from the date of such drawing until
such Lender pays such amount to the Issuing Lender in full at a rate per
annum equal to, if paid within two (2) Business Days of the date of drawing,
the Federal Funds Rate and thereafter at a rate equal to the Alternate Base
Rate. Each Lender's obligation to make such payment to the Issuing Lender,
and the right of the Issuing Lender to receive the same, shall be absolute
and unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or the
acceleration of the Credit Party Obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Loans. On any day on which the Borrower shall have
requested, or been deemed to have requested a Revolving Loan to reimburse a
drawing under a Letter of Credit, the Administrative Agent shall give notice
to the Lenders that a Revolving Loan has been requested or deemed requested
in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans
(each such borrowing, a "Mandatory Borrowing") shall be immediately made
(without giving effect to any termination of the Commitments pursuant to
Section 7.2) pro rata based on each Lender's respective Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid
directly to the Issuing Lender for application to the respective LOC
Obligations. Each Lender hereby irrevocably agrees to make such Revolving
Loans immediately upon any such request or deemed request on account of each
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the same such date notwithstanding (i) the amount
of Mandatory Borrowing may not comply with the minimum amount for borrowings
of Loans otherwise required hereunder, (ii) whether any conditions specified
in Section 4.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed request for
a Revolving Loan to be made by the time otherwise required in Section
2.1(b)(i), (v) the date of such Mandatory Borrowing, or (vi) any reduction
in the Aggregate Revolving Committed Amount after any such Letter of Credit
may have been drawn upon. In the event that any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under
the Bankruptcy Code), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) its Participation Interests in
the LOC Obligations; provided, further, that in the event any Lender shall
fail to fund its Participation Interest on the day the Mandatory Borrowing
would otherwise have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable by such Lender to
the Issuing Lender upon demand, at the rate equal to, if paid within two (2)
Business Days of such date, the Federal Funds Rate, and thereafter at a rate
equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Letter of Credit Governing Law. Unless otherwise expressly agreed
by the Issuing Lender and the Borrower when a Letter of Credit is issued,
the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each
standby Letter of Credit.
2.5 Additional Loans.
----------------
Subject to the terms and conditions set forth herein, so long as no
Default or Event of Default shall have occurred and be continuing, the
Borrower shall have the right during the period from the Closing Date until
April 19, 2008, to incur additional Indebtedness (the "Additional Loans")
under this Credit Agreement in the form of one or more increases to
the Aggregate Revolving Committed Amount by an aggregate amount of up
to $75,000,000. The following terms and conditions shall apply to all
Additional Loans: (a) the loans made under any such Additional Loan shall
constitute Credit Party Obligations, (b) such Additional Loan shall have the
same terms (including interest rate) as the existing Loans, (c) any such
Additional Loan shall be entitled to the same voting rights as the existing
Loans and shall be entitled to receive proceeds of prepayments on the same
basis as comparable Loans, (d) any such Additional Loan shall be obtained
from existing Lenders or from other banks, financial institutions or
investment funds, in each case in accordance with the terms set forth below,
(e) such Additional Loan shall be in a minimum principal amount of
$25,000,000 and integral multiples of $1,000,000 in excess thereof, (f) the
proceeds of any Additional Loan will be used to finance capital expenditures
and working capital and other general corporate purposes, including
Permitted Investments, (g) the Borrower shall execute such promissory notes
as are necessary and requested by the Lenders to reflect the Additional
Loans, (h) the conditions to Extensions of Credit in Section 4.2 shall have
been satisfied and (i) the Administrative Agent shall have received from the
Borrower updated financial projections and an officer's certificate, in each
case in form and substance satisfactory to the Administrative Agent,
demonstrating that, after giving effect to any such Additional Loan, the
Borrower will be in compliance with the financial covenants set forth in
Section 5.9. Participation in any Additional Loan shall be offered first to
each of the existing Lenders, but each such Lender shall have no obligation
to provide all or any portion of any such Additional Loan. If the amount of
any Additional Loan requested by the Borrower shall exceed the commitments
which the existing Lenders are willing to provide with respect to such
Additional Loan, then the Borrower may invite other banks and financial
institutions reasonably acceptable to the Administrative Agent to join this
Credit Agreement as Lenders hereunder for the portion of such Additional
Loan not taken by existing Lenders, provided that such other banks,
financial institutions and investment funds shall enter into such joinder
agreements to give effect thereto as the Administrative Agent and the
Borrower may reasonably request. The existing Lenders shall make such
assignments (which assignments shall not be subject to the requirements set
forth in Section 10.6(c)) of the outstanding Loans and Participation
Interests to the Lenders providing any Additional Loan so that, after giving
effect to such assignments, each Lender (including the Lenders providing the
Additional Loans) will hold Loans and Participation Interests equal to its
Commitment Percentage of all outstanding Loans and LOC Obligations. The
Administrative Agent is authorized to enter into, on behalf of the Lenders,
any amendment to this Credit Agreement or any other Credit Document as may
be necessary to incorporate the terms of any Additional Loan.
2.6 Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on
the Loans and any other amounts owing hereunder or under the other Credit
Documents shall, upon the election of the Required Lenders (except with
respect to an Event of Default occurring under Section 7.1(e), in which case
such interest rate increase shall be immediate) bear interest, payable on
demand, at a per annum rate 2% greater than the interest rate which would
otherwise be applicable (or if no rate is applicable, whether in respect of
interest, fees or other amounts, then 2% greater than the Alternate Base
Rate plus the Applicable Percentage).
2.7 Extension and Conversion.
------------------------
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert
Loans into Loans of another Type; provided, however, that (a) except as
expressly provided otherwise in this Credit Agreement, LIBOR Rate Loans may
be converted into Alternate Base Rate Loans only on the last day of the
Interest Period applicable thereto, (b) LIBOR Rate Loans may be extended,
and Alternate Base Rate Loans may be converted into LIBOR Rate Loans, only
if the conditions in Section 4.2 have been satisfied and (c) Loans extended
as, or converted into, LIBOR Rate Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in
such minimum amounts as provided in Section 2.1(b)(ii). Any request for
extension or conversion of a LIBOR Rate Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of
one month. Each such extension or conversion shall be effected by the
Borrower by giving a Notice of Extension/Conversion (or telephone notice
promptly confirmed in writing) to the Administrative Agent prior to 11:00
A.M. on the Business Day of, in the case of the conversion of a LIBOR Rate
Loan into a Alternate Base Rate Loan, and on the third Business Day prior
to, in the case of the extension of a LIBOR Rate Loan as, or conversion of a
Alternate Base Rate Loan into, a LIBOR Rate Loan, the date of the proposed
extension or conversion, specifying (i) the date of the proposed extension
or conversion, (ii) the Loans to be so extended or converted, (iii) the
Types of Loans into which such Loans are to be converted and, if appropriate
and (iv) the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
Section 4.2. In the event the Borrower fails to request extension or
conversion of any LIBOR Rate Loan in accordance with this Section, or any
such conversion or extension is not permitted or required by this Section,
then such LIBOR Rate Loan shall be converted to an Alternate Base Rate Loan
at the end of the Interest Period applicable thereto. The Administrative
Agent shall give each Lender notice as promptly as practicable of any such
proposed extension or conversion affecting any Loan.
2.8 Prepayments.
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(a) Voluntary Repayments. Revolving Loans and Swingline Loans may be
repaid in whole or in part without premium or penalty; provided that (i)
LIBOR Rate Loans may be repaid only upon three (3) Business Days' prior
written notice to the Administrative Agent, and Alternate Base Rate Loans
may be repaid only upon at least one (1) Business Day's prior written notice
to the Administrative Agent, (ii) repayments of LIBOR Rate Loans must be
accompanied by payment of any amounts owing under Section 2.17, and (iii)
partial repayments of the LIBOR Rate Loans shall be in minimum principal
amount of $5,000,000, and in integral multiples of $1,000,000 in excess
thereof and partial repayments of Alternate Base Rate Loans shall be in
minimum principal amount of $1,000,000, and in integral multiples of
$500,000 in excess thereof
(b) Mandatory Prepayments. If at any time, the aggregate principal
amount of outstanding Revolving Loans plus Swingline Loans plus LOC
Obligations shall exceed the Aggregate Revolving Committed Amount, the
Borrower shall immediately make payment on the Loans in an amount sufficient
to eliminate the deficiency.
(c) Application. Unless otherwise specified by the Borrower,
voluntary repayments and mandatory prepayments made hereunder shall be
applied first to Alternate Base Rate Loans, then to LIBOR Rate Loans in
direct order of Interest Period maturities. Amounts repaid on the Swingline
Loan and the Revolving Loans may be reborrowed in accordance with the
provisions hereof.
(d) Hedging Obligations Unaffected. Any repayment or prepayment made
pursuant to this Section 2.8 shall not affect the Borrower's obligation to
continue to make payments under any Hedging Agreement with a Hedging
Agreement Provider, which shall remain in full force and effect
notwithstanding such repayment or prepayment, subject to the terms of such
Hedging Agreement.
2.9 Termination and Reduction of Commitments
----------------------------------------
(a) Voluntary Reductions. The Commitments may be terminated or
permanently reduced by the Borrower in whole or in part upon three (3)
Business Days' prior written notice to the Administrative Agent; provided
that (i) after giving effect to any voluntary reduction, the aggregate
principal amount of Loans plus LOC Obligations outstanding shall not exceed
the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
reductions shall be in minimum principal amounts of $5,000,000, and in
integral multiples of $1,000,000 in excess thereof; provided that no such
reduction or termination shall be permitted if after giving effect thereto,
and to any prepayments of the Revolving Loans made on the effective date
thereof, the sum of the then outstanding aggregate principal amount of the
Revolving Loans plus Swingline Loans plus LOC Obligations would exceed the
Aggregate Revolving Committed Amount.
(b) Mandatory Reduction. The Revolving Commitment, the LOC Commitment
and the Swingline Commitment shall automatically terminate on the Maturity
Date.
2.10 Fees.
----
(a) Unused Fee. In consideration of the Commitments, the Borrower
agrees to pay to the Administrative Agent for the ratable benefit of the
Lenders holding Commitments an unused fee (the "Unused Fee") in an amount
equal to the Applicable Percentage per annum times the average daily unused
amount of the Aggregate Revolving Committed Amount. For purposes of
computation of the Unused Fee, LOC Obligations shall be considered usage of
the Aggregate Revolving Committed Amount. The Unused Fee shall be payable
quarterly in arrears on the 15th day following the last day of each calendar
quarter for the prior calendar quarter, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand). The Unused Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable
Percentage during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Percentage separately for each period during
such quarter that such Applicable Percentage was in effect.
(b) Letter of Credit Fee. In consideration of the LOC Commitments,
the Borrower agrees to pay to the Issuing Lender a fee (the "Letter of
Credit Fee") equal to the Applicable Percentage per annum on the average
daily maximum amount available to be drawn under each Letter of Credit from
the date of issuance to the date of expiration. The Issuing Lender shall
promptly pay over to the Administrative Agent for the ratable benefit of the
Lenders (including the Issuing Lender) the Letter of Credit Fee. The Letter
of Credit Fee shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the prior calendar
quarter.
(c) Issuing Lender Fees. In addition to the Letter of Credit Fees
payable pursuant to subsection (b) above, the Borrower shall pay to the
Issuing Lender for its own account without sharing by the other Lenders (i)
a fronting fee of one-eighth of one percent (0.125%) per annum on the
average daily maximum amount available to be drawn under each such Letter of
Credit issued by it, such fee to be paid on the date of issuance of any
Letter of Credit and (ii) the reasonable and customary charges from time to
time of the Issuing Lender with respect to the amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Agent's Fee. The Borrower agrees to pay to the
Administrative Agent the annual administrative agent fee as described in the
Fee Letter.
2.11 Computation of Interest and Fees.
--------------------------------
(a) Interest payable hereunder with respect to Alternate Base Rate
Loans based on the Prime Rate shall be calculated on the basis of a year of
365 days (or 366 days, as applicable) for the actual days elapsed. All
other fees, interest and all other amounts payable hereunder 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 Borrower and
the Lenders of each determination of a LIBOR Rate on the Business Day of the
determination thereof. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base
Rate shall become effective. The Administrative Agent shall as soon as
practicable notify the Borrower 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 Credit Agreement shall be binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the computations used by the Administrative
Agent in determining any interest rate.
2.12 Pro Rata Treatment and Payments.
-------------------------------
(a) Each borrowing of Loans and any reduction of the Commitments shall
be made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment under this Credit Agreement or any Note shall be
applied (i) first, to any Fees then due and owing, (ii) second, to interest
then due and owing in respect of the Notes of the Borrower and (iii) third,
to principal then due and owing hereunder and under the Notes of the
Borrower. Each payment on account of the Unused Fees or the Letter of
Credit Fees shall be made pro rata in accordance with the respective amounts
due and owing. Each payment (other than voluntary repayments and mandatory
prepayments) by the Borrower on account of principal of and interest on the
Loans shall be made pro rata according to the respective amounts due and
owing hereunder. Each voluntary repayment and mandatory prepayment on
account of principal of the Loans shall be applied in accordance with
Section 2.8. All payments (including prepayments) to be made by the
Borrower on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in Section 2.18(b)) and
shall be made to the Administrative Agent for the account of the Lenders at
the Administrative Agent's office specified in Section 10.2 in Dollars and
in immediately available funds not later than 1:00 P.M. on the date when
due. The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the LIBOR Rate Loans) becomes due
and payable on a day other than a Business Day, such payment 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. If any payment on a LIBOR Rate 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 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.
(b) Allocation of Payments After Event of Default. Notwithstanding
any other provision of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account
of the Credit Party Obligations or any other amounts outstanding under any
of the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Administrative Agent in connection with enforcing the rights of the
Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest (including, without limitation,
accrued fees and interest arising under any Hedging Agreement with a
Hedging Agreement Provider;
FIFTH, to the payment of the outstanding principal amount of the
Credit Party Obligations (including, without limitation, the payment or
cash collateralization of the outstanding LOC Obligations, and
including with respect to any Hedging Agreement with a Hedging
Agreement Provider, any breakage, termination or other payments due
under such Hedging Agreement with a Hedging Agreement Provider and any
interest accrued thereon;
SIXTH, to all other Credit Party Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH"
above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category and (ii) each of the Lenders and/or
Hedging Agreement Providers shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender or the outstanding obligations
payable to such Hedging Agreement Provider bears to the aggregate then
outstanding Loans, LOC Obligations and obligations payable under all
Hedging Agreements with a Hedging Agreement Provider) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH"
and "SIXTH" above.
2.13 Non-Receipt of Funds by the Administrative Agent.
------------------------------------------------
(a) Unless the Administrative Agent shall have been notified in
writing by a Lender prior to the date a Loan is to be made by such Lender
(which notice shall be effective upon receipt) that such Lender does not
intend to make the proceeds of such Loan available to the Administrative
Agent, the Administrative Agent may assume that such Lender has made such
proceeds available to the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent, the Administrative Agent shall be able to recover such corresponding
amount from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover from the Lender
or the Borrower, as the case may be, interest on such corresponding amount
in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Rate.
(b) Unless the Administrative Agent shall have been notified in
writing by the Borrower, prior to the date on which any payment is due from
it hereunder (which notice shall be effective upon receipt) that the
Borrower does not intend to make such payment, the Administrative Agent may
assume that such Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to each Lender on such payment date an amount
equal to the portion of such assumed payment to which such Lender is
entitled hereunder, and if the Borrower has not in fact made such payment to
the Administrative Agent, such Lender shall, on demand, repay to the
Administrative Agent the amount made available to such Lender. If such
amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each
day from the date such amount was made available by the Administrative Agent
at a per annum rate equal to, if repaid to the Administrative Agent within
two (2) days from the date such amount was made available by the
Administrative Agent, the Federal Funds Rate and thereafter at a rate equal
to the Alternate Base Rate.
(c) A certificate of the Administrative Agent submitted to the
Borrower or any Lender with respect to any amount owing under this Section
2.13 shall be conclusive in the absence of manifest error.
2.14 Inability to Determine Interest Rate.
------------------------------------
Notwithstanding any other provision of this Credit Agreement, if (a)
the Administrative Agent shall reasonably determine (which determination
shall be conclusive and binding absent manifest error) that, by reason of
circumstances affecting the relevant market, reasonable and adequate means
do not exist for ascertaining LIBOR for such Interest Period, or (b) the
Required Lenders shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that the LIBOR Rate does not
adequately and fairly reflect the cost to such Lenders of funding LIBOR Rate
Loans that the Borrower has requested be outstanding as a LIBOR tranche
during such Interest Period, the Administrative Agent shall forthwith give
telephone notice of such determination, confirmed in writing, to the
Borrower, and the Lenders at least two Business Days prior to the first day
of such Interest Period. Unless the Borrower shall have notified the
Administrative Agent upon receipt of such telephone notice that it wishes to
rescind or modify its request regarding such LIBOR Rate Loans, any Loans
that were requested to be made as LIBOR Rate Loans shall be made as
Alternate Base Rate Loans and any Loans that were requested to be converted
into or continued as LIBOR Rate Loans shall remain as or be converted into
Alternate Base Rate Loans. Until any such notice has been withdrawn by the
Administrative Agent, no further Loans shall be made as, continued as, or
converted into, LIBOR Rate Loans for the Interest Periods so affected.
2.15 Illegality.
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Notwithstanding any other provision of this Credit Agreement, if the
adoption of or any change in any Requirement of Law or in the interpretation
or application thereof by the relevant Governmental Authority to any Lender
shall make it unlawful for such Lender or its LIBOR Lending Office to make
or maintain LIBOR Rate Loans as contemplated by this Credit Agreement or to
obtain in the interbank eurodollar market through its LIBOR Lending Office
the funds with which to make such Loans, (a) such Lender shall promptly
notify the Administrative Agent and the Borrower thereof, (b) the commitment
of such Lender hereunder to make LIBOR Rate Loans or continue LIBOR Rate
Loans as such shall forthwith be suspended until the Administrative Agent
shall give notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lender's Loans then
outstanding as LIBOR Rate Loans, if any, shall be converted on the last day
of the Interest Period for such Loans or within such earlier period as
required by law to Alternate Base Rate Loans. The Borrower hereby agrees
promptly to pay any Lender, upon its demand, any additional amounts
necessary to compensate such Lender for actual and direct costs (but not
including anticipated profits) reasonably incurred by such Lender including,
but not limited to, any interest or fees payable by such Lender to lenders
of funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder. A certificate as to any additional amounts payable pursuant to
this Section shall be submitted by such Lender, through the Administrative
Agent, to the Borrower. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office) to avoid
or to minimize any amounts which may otherwise be payable pursuant to this
Section; provided, however, that such efforts shall not cause the imposition
on such Lender of any additional costs or legal or regulatory burdens deemed
by such Lender in its sole discretion to be material.
2.16 Requirements of Law.
-------------------
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof 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 made subsequent to the date
hereof:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to any LIBOR Rate Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in the
determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or to reduce any amount
receivable hereunder or under any Note, then, in any such case, the Borrower
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 reasonably deems to be material as
determined by such Lender with respect to its LIBOR Rate Loans. A
certificate as to any additional amounts payable pursuant to this Section
shall be submitted by such Lender, through the Administrative Agent, to
the Borrower. Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its LIBOR Lending Office, as the case may be)
to avoid or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this Section; provided, however, that such
efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its sole
discretion to be material.
(b) If any Lender shall have reasonably determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
central bank or Governmental Authority made subsequent to the date hereof
does or shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount reasonably deemed by such Lender in its sole
discretion to be material, then from time to time, within fifteen (15) days
after demand by such Lender, the Borrower shall pay to such Lender such
additional amount as shall be certified by such Lender as being required to
compensate it for such reduction. Such a certificate as to any additional
amounts payable under this Section shall be submitted by a Lender (which
certificate shall include a description of the basis for the computation),
through the Administrative Agent, to the Borrower.
(c) The agreements in this Section 2.16 shall survive the termination
of this Credit Agreement and payment of the Notes and all other amounts
payable hereunder.
2.17 Indemnity.
---------
The Borrower hereby agrees to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in payment
of the principal amount of or interest on any Loan by such Lender in
accordance with the terms hereof, (b) default by the Borrower in accepting a
borrowing after the Borrower has given a notice in accordance with the terms
hereof, (c) default by the Borrower in making any repayment after the
Borrower has given a notice in accordance with the terms hereof, and/or (d)
the making by the Borrower of a repayment or prepayment of a Loan, or the
conversion thereof, on a day which is not the last day of the Interest
Period with respect thereto, in each case 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 Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section
shall be submitted by any Lender, through the Administrative Agent, to the
Borrower (which certificate must be delivered to the Administrative Agent
within thirty days following such default, repayment, prepayment or
conversion). The agreements in this Section 2.17 shall survive termination
of this Credit Agreement and payment of the Notes and all other amounts
payable hereunder, but any claims for such additional amounts shall be
submitted to the Borrower no later than 12 months following the termination
of this Credit Agreement.
2.18 Taxes.
-----
(a) All payments made by the Borrower hereunder or under any Note will
be, except as provided in Section 2.18(b), made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any Governmental Authority or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding any tax imposed on or measured by the net income or
profits of a Lender pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Lender is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Credit Agreement or under
any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. The
Borrower will furnish to the Administrative Agent as soon as practicable
after the date the payment of any Taxes is due pursuant to applicable law
certified copies (to the extent reasonably available and required by law) of
tax receipts evidencing such payment by the Borrower. The Borrower agrees
to indemnify and hold harmless each Lender, and reimburse such Lender upon
its written request, for the amount of any Taxes so levied or imposed and
paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Closing Date, or in
the case of a Lender that is an assignee or transferee of an interest under
this Credit Agreement pursuant to Section 10.6 (unless the respective Lender
was already a Lender hereunder immediately prior to such assignment or
transfer), on the date of such assignment or transfer to such Lender, (i) if
the Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or successor forms) certifying such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Credit Agreement and under any
Note, or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, either Internal Revenue Service Form W-8BEN or W-
8ECI as set forth in clause (i) above, or (x) a certificate substantially in
the form of Schedule 2.18 (any such certificate, a "2.18 Certificate") and
(y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying such Lender's entitlement to
an exemption from United States withholding tax with respect to payments of
interest to be made under this Credit Agreement and under any Note. In
addition, each Lender agrees that it will deliver upon the Borrower's
request updated versions of the foregoing, as applicable, whenever the
previous certification has become obsolete or inaccurate in any material
respect, together with such other forms as may be required in order to
confirm or establish the entitlement of such Lender to a continued exemption
from or reduction in United States withholding tax with respect to payments
under this Credit Agreement and any Note. Notwithstanding anything to the
contrary contained in Section 2.18(a), but subject to the immediately
succeeding sentence, (x) the Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold Taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of
any Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 2.18(a) hereof to gross-up payments to be made to a
Lender in respect of Taxes imposed by the United States if (I) such Lender
has not provided to the Borrower the Internal Revenue Service Forms required
to be provided to the Borrower pursuant to this Section 2.18(b) or (II) in
the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such Taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section
2.18, the Borrower agrees to pay additional amounts and to indemnify each
Lender in the manner set forth in Section 2.18(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the Closing
Date in any applicable law, treaty, governmental rule, regulation, guideline
or order, or in the interpretation thereof, relating to the deducting or
withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its LIBOR Lending Office, as the case may be) to avoid or
to minimize any amounts which might otherwise be payable pursuant to this
Section; provided, however, that such efforts shall not cause the imposition
on such Lender of any additional costs or legal or regulatory burdens deemed
by such Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant to this
Section 2.18 with respect to a Lender, such Lender shall use reasonable
efforts to obtain a refund of tax or credit against its tax liabilities on
account of such payment; provided that such Lender shall have no obligation
to use such reasonable efforts if either (i) it is in an excess foreign tax
credit position or (ii) it believes in good faith, in its sole discretion,
that claiming a refund or credit would cause adverse tax consequences to it.
In the event that such Lender receives such a refund or credit, such Lender
shall pay to the Borrower an amount that such Lender reasonably determines
is equal to the net tax benefit obtained by such Lender as a result of such
payment by the Borrower. In the event that no refund or credit is obtained
with respect to the Borrower's payments to such Lender pursuant to this
Section 2.18, then such Lender shall upon request provide a certification
that such Lender has not received a refund or credit for such payments.
Nothing contained in this Section 2.18 shall require a Lender to disclose or
detail the basis of its calculation of the amount of any tax benefit or any
other amount or the basis of its determination referred to in the proviso to
the first sentence of this Section 2.18 to the Borrower or any other party.
(e) The agreements in this Section 2.18 shall survive the termination
of this Credit Agreement and the payment of the Notes and all other amounts
payable hereunder, but any claims for such additional amounts shall be
submitted to the Borrower no later than 12 months following the termination
of this Credit Agreement.
2.19 Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
(a) In addition to its other obligations under Section 2.4, the
Borrower hereby agrees to protect, indemnify, pay and hold the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of
Credit, except to the extent resulting from the negligence, bad faith or
willful misconduct of the Issuing Lender or (ii) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or
de facto government or governmental authority (all such acts or omissions,
herein called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof. The Issuing Lender shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application
for and issuance of any Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, that
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of a Letter of Credit to comply fully with conditions required
in order to draw upon a Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof; and
(vii) any consequences arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to the Borrower. It is the intention
of the parties that this Credit Agreement shall be construed and applied to
protect and indemnify the Issuing Lender against any and all risks involved
in the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower, including, without limitation, any and all risks of
the acts or omissions, whether rightful or wrongful, of any Government
Authority. The Issuing Lender shall not, in any way, be liable for any
failure by the Issuing Lender or anyone else to pay any drawing under any
Letter of Credit as a result of any Government Acts or any other cause
beyond the control of the Issuing Lender.
(d) Nothing in this Section 2.19 is intended to limit the
reimbursement obligation of the Borrower contained in Section 2.4 hereof.
The obligations of the Borrower under this Section 2.19 shall survive the
termination of this Credit Agreement. No act or omissions of any current or
prior beneficiary of a Letter of Credit shall in any way affect or impair
the rights of the Issuing Lender to enforce any right, power or benefit
under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
2.19, the Borrower shall have no obligation to indemnify any Issuing Lender
in respect of any liability incurred by such Issuing Lender arising out of
the negligence, bad faith or willful misconduct of the Issuing Lender, as
determined by a court of competent jurisdiction.
2.20 Replacement of Lenders.
----------------------
The Borrower shall be permitted to replace with a financial institution
acceptable to the Administrative Agent any Lender (other than Wachovia Bank,
National Association) that (a) requests reimbursement for amounts owing
pursuant to 2.15, 2.16 or 2.18(a) or (b) is then in default of its
obligation to make Loans hereunder; provided that (i) such replacement does
not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) prior
to any such replacement, such Lender shall have taken no action under
Section 2.15, 2.16(a) or 2.18(c), as applicable, so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.15, 2.16
or 2.18(a), (iv) the replacement financial institution shall purchase,
at par, all Loans and other amounts owing to such replaced Lender on or
prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.17 if any LIBOR Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already
a Lender, shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower
shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.15, 2.16 or 2.18(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against
the replaced Lender. In the event any replaced Lender fails to execute the
agreements required under Section 10.6 in connection with an assignment
pursuant to this Section 2.20, the Borrower may, upon two (2) Business Days'
prior notice to such replaced Lender, execute such agreements on behalf of
such replaced Lender. A Lender shall not be required to be replaced if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such replacement cease to
apply.
SECTION 3
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Lenders to enter into this Credit Agreement and to make
Loans herein provided for, the Credit Parties hereby represent and warrant
to the Administrative Agent and to each Lender that:
3.1 Existing Indebtedness.
---------------------
Schedule 3.1 sets forth a complete and correct list of all outstanding
Indebtedness of the Borrower and its Subsidiaries as of June 30, 2004, since
which date there has been no Material change in the amounts, interest rates,
sinking funds, installment payments or maturities of the Indebtedness of the
Borrower or its Subsidiaries that have not been reflected in the public
filings of the Borrower with the Securities and Exchange Commission since
June 30, 2004. Schedule 3.1 also separately sets forth a complete and
correct list of all outstanding Indebtedness of the Borrower and its
Subsidiaries as of the date of this Credit Agreement. Neither the Borrower
nor any Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Indebtedness of
the Borrower or such Subsidiary and no event or condition exists with
respect to any Indebtedness of the Borrower or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
3.2 Financial Statements.
--------------------
The Borrower has delivered to the Administrative Agent copies of the
financial statements of the Borrower and its Subsidiaries referenced in
Section 4.1(g). All of said financial statements (including in each case
the related schedules and notes) fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as of
the respective dates specified in such financial statements and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the notes thereto (subject, in the case of any interim financial statements,
to normal year-end adjustments).
3.3 No Material Adverse Change.
--------------------------
Since June 30, 2004, there has been no development or event which has
had or would reasonably be expected to have a Material Adverse Effect.
3.4 Organization; Existence.
-----------------------
Each of the Credit Parties is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, and is
duly qualified as a foreign entity and is in good standing under the laws of
each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Each of the Credit Parties has the
corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Credit Agreement and
the other Credit Documents and to perform the provisions hereof and thereof.
3.5 Authorization; Power; Enforceable Obligations.
---------------------------------------------
This Credit Agreement and the other Credit Documents have been duly
authorized by all necessary corporate action on the part of the Borrower and
the other Credit Parties, and this Credit Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Borrower and the other Credit Parties enforceable
against the Borrower and any such Credit Party in accordance with its terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.6 Consent; Government Authorizations.
----------------------------------
No approval, consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other
Person is required in connection with acceptance of extensions of credit by
the Borrower or the making of the guaranties hereunder or with the
execution, delivery or performance of any Credit Documents by the other
Credit Parties (other than those which have been obtained) or with the
validity or enforceability of any Credit Document against the Credit
Parties.
3.7 No Material Litigation.
----------------------
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or
any Subsidiary or any property of the Borrower or any Subsidiary in any
court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any Subsidiary is in default under any
order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
3.8 No Default.
----------
No Default or Event of Default has occurred and is continuing.
3.9 Taxes.
-----
The Borrower and its Subsidiaries have filed all tax returns (federal,
state, local and foreign) that are required to have been filed in any
jurisdiction, and have paid all income taxes shown to be due and payable
(including interest and penalties) on such returns and all other taxes and
assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for
any taxes and assessments (a) the amount of which is not individually or in
the aggregate Material or (b) the amount, applicability or validity of which
is currently being contested in good faith by appropriate proceedings and
with respect to which the Borrower or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. None of the Credit
Parties or their respective Subsidiaries are aware, as of the Closing Date,
of any proposed tax assessments against it or any of its Subsidiaries which
would reasonably be expected to have a Material Adverse Effect. The Federal
income tax liabilities of the Borrower and its Subsidiaries have been paid
for all fiscal years up to and including the fiscal year ended June 30,
2004.
3.10 ERISA.
-----
(a) Each Credit Party and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and would not
reasonably be expected to result in a Material Adverse Effect. Neither any
Credit Party nor any ERISA Affiliate has incurred any liability pursuant to
Title IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA) or for
failure to comply with the provisions of Title I of ERISA and no event,
transaction or condition has occurred or exists that would reasonably be
expected to result in the incurrence of any such liability by any Credit
Party or any ERISA Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of any Credit Party or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty or to
excise tax provisions including Section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under all Single
Employer Plans, determined with respect to each Single Employer Plan as of
the most recent valuation date prior to the date on which this
representation is made on the basis of the actuarial assumptions specified
for funding purposes in the Single Employer Plan's most recent actuarial
valuation report, did not exceed the fair market value of the assets of the
Single Employer Plans by more than $500,000 in the aggregate for all such
Plans.
(c) Neither any Credit Party nor any ERISA Affiliate has incurred any
withdrawal liabilities under Section 4201 of ERISA or is subject to
contingent withdrawal liabilities under Section 4204 of ERISA with respect
to any Multiemployer Plan that individually or in the aggregate are
Material. Neither any Credit Party nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in Reorganization, Insolvency,
or has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is reasonably expected to be in Reorganization,
Insolvency, or terminated.
(d) The expected post-retirement benefit obligation (within the meaning
of Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by Section 4980B
of the Code) of the each Credit Party and its ERISA Affiliates is not
Material.
(e) The execution and delivery of this Credit Agreement and the other
Credit Documents hereunder will not involve any transaction that is subject
to the prohibitions of Section 406 of ERISA or in connection with which a
tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.
3.11 Governmental Regulations, Etc.
-----------------------------
(a) No part of the proceeds of the Loans hereunder will be used,
directly or indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said
Regulation U. No Indebtedness being reduced or retired out of the proceeds
of the Loans hereunder was or will be incurred for the purpose of purchasing
or carrying any margin stock within the meaning of Regulation U or any
"margin security" within the meaning of Regulation T. "Margin stock" within
the meaning of Regulation U does not constitute more than 25% of the value
of the Consolidated Assets of the Borrower and its Subsidiaries. Neither
the execution and delivery hereof by the Borrower, nor the performance by it
of any of the transactions contemplated by this Credit Agreement (including,
without limitation, the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation T, U or X.
(b) The Borrower is not (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(c) The use of the proceeds of the Loans hereunder will not violate
the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto. Without limiting the foregoing, none of the Credit
Parties is or will (i) become a person whose property or interest in
property are blocked pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg. 49079 (2001)) or (ii) to the best of its knowledge, engage in any
dealings or transactions, or be associated with, any such person.
3.12 Subsidiaries.
------------
(a) Schedule 3.12 is (except as noted therein) a complete and correct
list of the Borrower's Subsidiaries, showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of its organization, the percentage
of shares of each class of its capital stock or similar equity interests
outstanding owned by the Borrower and each other Subsidiary and whether each
such Subsidiary is a Material Subsidiary.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 3.12 as being owned by the
Borrower and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Borrower or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 3.12).
(c) Each Subsidiary identified in Schedule 3.12 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified as
a foreign corporation or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Each such Subsidiary has the corporate
or other power and authority to own or hold under lease the properties it
purports to own or hold under lease and to transact the business it
transacts and proposes to transact.
3.13 Use of Proceeds.
---------------
The Extensions of Credit will be used solely (a) to refinance the
Existing $25 Million Commerce Bank Facility and certain other Indebtedness
and (b) to provide for the working capital and general corporate
requirements of the Borrower, including Permitted Acquisitions.
3.14 Contractual Obligations; Compliance with Laws; No Conflicts.
-----------------------------------------------------------
The execution, delivery and performance by the Borrower and the other
Credit Parties, as applicable, of this Credit Agreement and the other Credit
Documents will not (a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any
property of the Borrower or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter
or by-laws, or any other Material agreement or instrument to which the
Borrower or any Subsidiary is bound or by which the Borrower or any
Subsidiary or any of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Borrower or any
Subsidiary, (c) violate any Requirement of Law applicable to the Borrower or
any of its Subsidiaries (except those as to which waivers or consents have
been obtained) or (d) conflict with, result in a breach of or constitute a
default under (i) the articles of incorporation, bylaws or other
organizational documents of such Person, (ii) any material indenture,
agreement or other instrument to which such Person is a party or by which
any of its properties may be bound or (iii) any approval of any Governmental
Authority relating to such Person.
3.15 Accuracy and Completeness of Information.
----------------------------------------
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Borrower or any Credit Party in writing to
the Administrative Agent or any Lender for purposes of or in connection with
this Credit Agreement or any other Credit Document, or any transaction
contemplated hereby or thereby, is or will be true and accurate in all
material respects as of the date stated therein and not incomplete by
omitting to state any material fact necessary to make such information not
misleading. There is no fact now known to the Borrower or any Credit Party
which has, or would reasonably be expected to have, a Material Adverse
Effect which fact has not been set forth herein, in the financial statements
of the Borrower furnished to the Administrative Agent and/or the Lenders, or
in any certificate, opinion or other written statement made or furnished by
the Borrower or any Credit Party to the Administrative Agent and/or the
Lenders.
3.16 Environmental Matters.
---------------------
(a) Except where such violation or liability would not reasonably be
expected to have a Material Adverse Effect, the facilities and properties
owned, leased or operated by the any of the Credit Parties and their
Subsidiaries (the "Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) have resulted in liability under, any Environmental
Law.
(b) Except where such violation would not reasonably be expected to
have a Material Adverse Effect, the Properties and all operations of the
Credit Parties and their Subsidiaries at the Properties are in compliance,
and have in the last five years been in compliance, in all material respects
with all applicable Environmental Laws, and there is no contamination at or
under the Properties or violation of any Environmental Law with respect to
the Properties or the business operated by any of the Credit Parties (the
"Business").
(c) Neither the Borrower nor any of its Subsidiaries has received any
written notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower nor any of its Subsidiaries have knowledge of any such
threatened notice.
(d) Except where such violation or liability would not reasonably be
expected to have a Material Adverse Effect, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which has given rise to
liability under any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that has
given rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of any Credit Party, threatened, under any
Environmental Law to which any of the Credit Parties is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial directives outstanding
under any Environmental Law with respect to the Properties or the Business.
(f) Except where such violation or liability would not reasonably be
expected to have a Material Adverse Effect, there has been no release or
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of any of the
Credit Parties in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner requiring
remediation under Environmental Laws.
3.17 Solvency.
--------
The fair saleable value of the Credit Parties' assets, measured on a
going concern basis, exceeds all probable liabilities, including those to be
incurred pursuant to this Credit Agreement. None of the Credit Parties
(a) has unreasonably small capital in relation to the business in which it
is or proposes to be engaged and (b) has incurred or believes that it will
incur after giving effect to the transactions contemplated by this Credit
Agreement, debts beyond its ability to pay such debts as they become due.
3.18 No Burdensome Restrictions.
--------------------------
None of the Borrower or any of its Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or
regulation which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
3.19 Title to Property; Leases.
-------------------------
The Borrower and its Subsidiaries have good and sufficient title to
their respective Material properties, including all such properties
reflected in the most recent audited balance sheet referred to in
Section 3.2 and Section 5.1 or purported to have been acquired by the
Borrower or any Subsidiary after said date (except as sold or otherwise
disposed of in the ordinary course of business), in each case free and clear
of Liens prohibited by this Credit Agreement, except for those defects in
title and Liens that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. All Material leases are
valid and subsisting and are in full force and effect in all material
respects.
3.20 Insurance.
---------
The present insurance coverage of the Borrower and its Subsidiaries is
outlined as to carrier, policy number, expiration date, type and amount on
Schedule 3.20 and such insurance coverage complies with the requirements set
forth in Section 5.5.
3.21 Licenses and Permits.
--------------------
The Borrower and its Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, service marks, trademarks
and trade names, or rights thereto, that are Material, without known
conflict with the rights of others, except for those conflicts that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
3.22 Anti-Terrorism Laws.
-------------------
Neither the making of the Loans hereunder nor the Borrower's use of the
proceeds thereof will violate the Patriot Act, the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto, or
is in violation of any Federal statute or Presidential Executive Order,
including without limitation Executive Order 13224 66 Fed. Reg. 49079
(September 25, 2001) (Blocking Property and Prohibiting Transactions with
Persons who Commit, Threaten to Commit or Support Terrorism)(collectively,
"Anti-Terrorism Laws").
SECTION 4
CONDITIONS
----------
4.1 Conditions to Closing.
---------------------
This Credit Agreement shall become effective upon, and the obligation
of each Lender to make the initial Loans is subject to, the satisfaction of
the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt by
the Administrative Agent of (i) multiple counterparts of this Credit
Agreement and (ii) for the account of each Lender that requests a Revolving
Note, Revolving Notes and for the account of the Swingline Lender, a
Swingline Note, in each case executed by a duly authorized officer of each
party thereto and in each case conforming to the requirements of this Credit
Agreement.
(b) Legal Opinion. Receipt by the Administrative Agent of a legal
opinion of counsel to the Credit Parties relating to this Credit Agreement
and the other Credit Documents and the transactions contemplated herein and
therein, in form and substance reasonably acceptable to the Administrative
Agent, which opinion shall include, without limitation, an opinion that the
execution, delivery and performance of the Credit Documents and the
performance of the transactions contemplated thereby will not conflict with,
result in a breach of, require any consent or permit any acceleration of (or
require repayment of) any Indebtedness of the Credit Parties or under any of
the Credit Parties' organizational documents and material agreements.
(c) Absence of Legal Proceedings. The absence of any Material pending
or, to the best knowledge of the Borrower, threatened action, suit,
investigation, proceeding, bankruptcy or insolvency, injunction, order or
claim with respect to the Borrower or any of its Subsidiaries.
(d) Corporate Documents. Receipt by the Administrative Agent of the
following (or their equivalent), each (other than with respect to
clause (iv)) certified by the secretary or assistant secretary of the
Borrower as of the Closing Date to be true and correct and in force and
effect pursuant to a certificate substantially in the form attached hereto
as Schedule 4.1(d):
(i) Articles of Incorporation. Copies of the articles of
incorporation or charter documents of the Credit Parties certified to
be true and complete as of a recent date by the appropriate
Governmental Authority of the state of its organization.
(ii) Resolutions. Copies of resolutions of the board of directors
or comparable managing body of the Credit Parties approving and
adopting the respective Credit Documents, the transactions contemplated
therein and authorizing execution and delivery thereof.
(iii) Bylaws. Copies of the bylaws, operating agreement or
partnership agreement of the Credit Parties certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and
in force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of certificates of
good standing, existence or its equivalent of each of the Credit
Parties certified as of a recent date by the appropriate Governmental
Authorities of the State of organization and each other State in which
the failure to so qualify and be in good standing would reasonably be
expected to have a Material Adverse Effect.
(e) Officer's Certificate. Receipt by the Administrative Agent of a
certificate, in form and substance reasonably satisfactory to it, of a
Responsible Officer certifying that (i) the Borrower and each of the other
Credit Parties is solvent as of the Closing Date and (ii) the Borrower, on a
consolidated basis with its Subsidiaries, is in pro forma compliance with
all of the financial covenants in Section 5.9 both before and after giving
effect to any Loans to be made on the Closing Date.
(f) Account Designation Letter. Receipt by the Administrative Agent
of an executed counterpart of the Account Designation Letter.
(g) Financial Information. Receipt by the Administrative Agent of (i)
five-year financial and operational projections for the Borrower and its
Subsidiaries together with a detailed explanation of all management
assumptions contained therein, which projections shall be in form and
substance satisfactory to the Administrative Agent and the Lenders, (ii) the
final audited financial statements of the Borrower for the twelve month
period ending June 30, 2004 and (iii) the unaudited quarterly financial
statements of the Borrower for the quarter ending September 30, 2004 and
December 31, 2004.
(h) Capital Structure/Other Documentation. Receipt by the
Administrative Agent of any information requested by it relating to the
corporate and capital structure of the Borrower and its Subsidiaries.
(i) Flow of Funds. Receipt by the Administrative Agent of a sources
and uses table and payment instructions with respect to each wire transfer
to be made by the Administrative Agent on behalf of the Lenders or the
Borrower on the Closing Date setting forth the amount of such transfer, the
purpose of such transfer, the name and number of the account to which such
transfer is to be made, the name and ABA number of the bank or other
financial institution where such account is located and the name and
telephone number of an individual that can be contacted to confirm receipt
of such transfer.
(j) Repayment of Existing Indebtedness. All existing Indebtedness for
borrowed money of the Borrower and its Subsidiaries (including the Existing
$25 Million Commerce Bank Facilities, but excluding the Existing EFT
Commerce Bank Facility and the Existing First State Bank Facility and other
existing Indebtedness listed on Schedule 3.1) shall have been repaid in full
and terminated and the Administrative Agent shall have received such
evidence of such repayment and termination as the Administrative Agent may
reasonably require.
(k) Consents. The Administrative Agent shall have received evidence
that all necessary governmental, corporate, shareholder and third party
consents and approvals, if any, in connection with the financings and other
transactions contemplated hereby have been received and no condition exists
which would reasonably be likely to restrain, prevent or impose any material
adverse conditions on the transactions contemplated hereby.
(l) No Material Adverse Change. No material adverse change shall have
occurred since June 30, 2004 in the business, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole.
(m) Fees. Receipt by the Administrative Agent and the Lenders of all
fees, if any, then owing pursuant to the Fee Letter, Section 2.10 or
pursuant to any other Credit Document.
(n) Patriot Act Certificate. The Administrative Agent shall have
received a certificate satisfactory thereto, for benefit of itself and the
Lenders, provided by the Borrower that sets forth information required by
the Patriot Act (as defined in Section 8.10) including, without limitation,
the identity of the Borrower, the name and address of the Borrower and other
information that will allow the Administrative Agent or any Lender, as
applicable, to identify the Borrower in accordance with the Patriot Act.
(o) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement shall
be reasonably satisfactory in form and substance to the Administrative
Agents and the Required Lenders.
4.2 Conditions to All Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the
date of making such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Borrower herein or in any other Credit Document or
which are contained in any certificate furnished at any time under or in
connection herewith or therewith shall in all material respects be true and
correct on and as of the date of such Extension of Credit as if made on and
as of such date (except for those which expressly relate to an earlier
date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to
the Extension of Credit to be made on such date.
(c) Compliance with Commitments. Immediately after giving effect to
the making of any such Extension of Credit (and the application of the
proceeds thereof), (i) the sum of the aggregate principal amount of
outstanding Revolving Loans plus Swingline Loans plus LOC Obligations shall
not exceed the Revolving Committed Amount, (ii) the LOC Obligations shall
not exceed the LOC Committed Amount and (iii) the Swingline Loans shall not
exceed the Swingline Commitment.
Each request for an Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Loan that
the conditions in subsections (a) and (b) of this Section have been
satisfied.
SECTION 5
AFFIRMATIVE COVENANTS
---------------------
The Credit Parties covenant and agree that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have
been terminated, no Loans remain outstanding and all amounts owing hereunder
or under any other Credit Document or in connection herewith or therewith
have been paid in full, the Credit Parties shall, and shall cause each
Subsidiary to:
5.1 Financial Statements.
--------------------
Furnish, or cause to be furnished, to the Administrative Agent and the
Lenders:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower (commencing with the
fiscal year ended June 30, 2005) (or, if earlier, within five (5)
business Days after such date as the Borrower is required to file its
annual report on Form 10-K for such fiscal year with the Securities and
Exchange Commission), a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or
any qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Borrower (commencing with the fiscal quarter ended December 31,
2004) (or, if earlier, within five (5) business Days after such date as
the Borrower is required to file its quarterly report on Form 10-Q for
such fiscal quarter with the Securities and Exchange Commission), a
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable
detail, certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event at least 10 days
before the end of each fiscal year of the Borrower, forecasts prepared
by management of the Borrower, in form satisfactory to the
Administrative Agent, of consolidated balance sheets and statements of
income or operations and cash flows of the Borrower and its
Subsidiaries on a quarterly basis for the immediately following fiscal
year (including the fiscal year in which the Maturity Date occurs).
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods
reflected therein and further accompanied by a description of, and an
estimation of the effect on the financial statements on account of, a change
in the application of accounting principles as provided in Section 1.3.
5.2 Certificates; Other Information.
-------------------------------
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the
delivery of the financial statements referred to in Section 5.1(a) above, a
certificate of the independent certified public accountants reporting on
such financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the
financial statements referred to in Sections 5.1(a) and 5.1(b) above, a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (i) the financial statements
fairly present in all material respects the financial condition of the
parties covered by such financial statements, (ii) during such period each
Credit Party has observed or performed its covenants and other agreements
hereunder and under the other Credit Documents, and satisfied the conditions
contained in this Credit Agreement to be observed, performed or satisfied by
it (except to the extent waived in accordance with the provisions hereof)
and (iii) such Responsible Officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate. Such
certificate shall include the calculations required to indicate compliance
with Section 5.9 as of the last day of the period covered by such financial
statements. A form of Officer's Certificate is attached as Schedule 5.2(b).
(c) Management Letter. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to
the Borrower or any of its Subsidiaries in connection with any annual,
interim or special audit of the books of such Person.
(d) Other Information. Promptly, such additional financial and other
information as the Administrative Agent, at the request of any Lender, may
from time to time reasonably request.
5.3 Notices.
-------
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) Defaults. Promptly (but in any event within two (2) Business
Days), after any Credit Party knows thereof, the occurrence of any Default
or Event of Default.
(b) Legal Proceedings. Promptly, any litigation, or any investigation
or proceeding (including without limitation, any environmental or
Governmental Authority proceeding) known to any Credit Party, relating to
the Borrower or any of its Subsidiaries which, if adversely determined,
would reasonably be expected to have a Material Adverse Effect.
(c) ERISA. Promptly, on any Credit Party gaining knowledge of (i) the
occurrence of any Reportable Event with respect to any Single Employer Plan,
(ii) a failure by any Credit Party or any ERISA Affiliate to make any
required contribution to a Single Employer Plan required to meet the minimum
funding standard set forth in ERISA and the Code with respect thereto, (iii)
the creation of any Lien on the assets of any Credit Party or any ERISA
Affiliate in favor of the PBGC (other than a Permitted Lien) or a Plan, or
(iv) with respect to any Multiemployer Plan, the assessment of any
withdrawal liability against any Credit Party or any ERISA Affiliate, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan; and in
each case in clauses (i) and (iv) above, such event or condition would
reasonably be expected to have a Material Adverse Effect.
(d) Other. Promptly, any other development or event which a
Responsible Officer gains knowledge of which would reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section 5.3 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.4 Maintenance of Existence; Compliance with Laws; Contractual
-----------------------------------------------------------
Obligations.
-----------
(a) Preserve and keep in full force and effect its corporate
existence. Subject to Section 6.4, each Credit Party will at all times
preserve and keep in full force and effect the corporate existence of each
of its Subsidiaries (unless merged with or dissolved into the Borrower or a
Subsidiary) and all rights and franchises of itself and its Subsidiaries
unless, in the good faith judgment of the Borrower, the termination of or
failure to preserve and keep in full force and effect such corporate
existence, right or franchise would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Comply with all Requirements of Law, ordinances or governmental
rules or regulations to which each of them is subject, including, without
limitation, Environmental Laws and ERISA, and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to
the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and
other governmental authorizations would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(c) Fully perform and satisfy all of its obligations under all of its
contractual obligations except to the extent that failure to perform and
satisfy such obligations would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance.
----------------------------------
(a) Maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other
than ordinary wear and tear), so that the business carried on in connection
therewith may be properly conducted at all times, provided that this
Section 5.5 shall not prevent the Borrower or any Subsidiary from
discontinuing the operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its business and the
Borrower has concluded that such discontinuance would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Maintain, with financially sound and reputable insurers, insurance
with respect to their respective properties and businesses against such
casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar
business and similarly situated; and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable
notice by the Administrative Agent, the Administrative Agent to visit and
inspect any of its properties and examine and make abstracts (including
photocopies) from any of its books and records at any reasonable time, and
to discuss the business, operations, properties and financial and other
condition of the Credit Parties and their Subsidiaries with officers and
employees of the Credit Parties and their Subsidiaries and with their
independent certified public accountants. The cost of the inspection
referred to in the preceding sentence shall be for the account of the
Lenders unless an Event of Default has occurred and is continuing, in which
case the cost of such inspection shall be for the account of the Borrower.
5.7 Use of Proceeds.
---------------
Use the Loans solely for the purposes provided in Section 3.13.
5.8 Additional Guarantors.
---------------------
(a) Cause each of the Borrower's Material Subsidiaries which is not a
party to this Credit Agreement, whether newly formed, after acquired or
otherwise existing, to become a "Guarantor" hereunder by way of execution of
a Joinder Agreement no later than thirty (30) days after such Subsidiary is
classified as a Material Subsidiary pursuant to the provisions set forth
below. For purposes of determining compliance with this Section 5.8(a), (i)
each newly formed or otherwise existing Subsidiary of the Borrower shall be
tested for classification as a Material Subsidiary annually upon the
delivery of the financial statements referenced in Section 5.1(a) and (ii)
each Subsidiary of the Borrower acquired pursuant to a Permitted Acquisition
shall be tested for classification as a Material Subsidiary on the date of
such acquisition.
(b) Where Domestic Subsidiaries of the Borrower that are not Credit
Parties hereunder (the "Non-Guarantor Subsidiaries") shall at any time have
more than twenty percent (20%), in the aggregate, of the total (gross)
revenues of all of the Subsidiaries of the Borrower (collectively, the
"Threshold Requirement"), the Borrower shall so notify the Administrative
Agent and shall cause one or more Domestic Subsidiaries to become a
"Guarantor" hereunder by (a) executing a Joinder Agreement and (b)
delivering such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Person and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above), all in
form, content and scope reasonably satisfactory to the Administrative Agent
such that immediately after the joinder of such Domestic Subsidiaries as
Guarantors hereunder, the remaining Non-Guarantor Subsidiaries shall not,
either individually or as a group, exceed the Threshold Requirement.
For purposes of determining compliance with this Section 5.8(b), the
Threshold Requirement shall be tested (i) at the end of each fiscal year of
the Borrower and (ii) at the time any Permitted Acquisition is consummated.
The Credit Parties shall comply with this Section 5.8(b) no later than
thirty (30) days following any such test which demonstrates that the Credit
Parties are not in compliance with the Threshold Requirement set forth
above.
5.9 Financial Covenants.
-------------------
(a) Leverage Ratio. On a consolidated basis, maintain a Leverage
Ratio as of the end of each fiscal quarter of the Borrower of less than or
equal to 2.75 to 1.0.
(b) Interest Coverage Ratio. On a consolidated basis, maintain an
Interest Coverage Ratio as of the end of each fiscal quarter of the Borrower
of greater than or equal to 4.0 to 1.0.
(c) Consolidated Net Worth. Maintain Consolidated Net Worth at all
times equal to at least the sum of (A) $354,350,000 plus (B) on a cumulative
basis as of the end of each fiscal quarter of the Borrower, commencing with
the fiscal quarter ending March 31, 2005, an amount equal to 50% of
Consolidated Net Income (to the extent positive) for the fiscal quarter then
ended, after giving effect to the payment of dividends for such period plus
(C) an amount equal to 75% of the net cash proceeds of any Equity Issuance.
5.10 Payment of Obligations.
----------------------
File all income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable
on such returns and all other taxes, assessments, governmental charges, or
levies payable by any of them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, provided that
neither the Borrower nor any Subsidiary need pay any such tax or assessment
if (a) the amount, applicability or validity thereof is contested by the
Borrower or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Borrower or a Subsidiary has established
adequate reserves therefore in accordance with GAAP on the books of the
Borrower or such Subsidiary or (b) the nonpayment of all such taxes and
assessments in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
5.11 Environmental Laws.
------------------
(a) Comply in all material respects with and take commercially
reasonable steps to ensure compliance in all material respects by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and take
commercially reasonable steps to ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
would not reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and directors
and affiliates, from and against any and all 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 the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower or
any of its Subsidiaries or their Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Notes and all
other amounts payable hereunder.
SECTION 6
NEGATIVE COVENANTS
------------------
The Credit Parties covenant and agree that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have
been terminated, no Loans remain outstanding and all amounts owing hereunder
or under any other Credit Document or in connection herewith or therewith
have been paid in full, the Credit Parties shall not and shall not permit
any Subsidiary to:
6.1 Indebtedness.
-----------
At any time, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness represented by the Credit Party Obligations;
(b) Indebtedness of any Subsidiary owing to the Borrower or any
Guarantor;
(c) Indebtedness existing as of the Closing Date and set forth on
Schedule 3.1;
(d) Indebtedness of the Borrower and its Subsidiaries incurred after
the Closing Date consisting of Capital Leases or Indebtedness incurred to
provide all or a portion of the purchase price or cost of construction of an
asset; provided that (i) such Indebtedness when incurred shall not exceed
the purchase price or cost of construction of such asset and (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(e) Indebtedness and obligations owing under Hedging Agreements
entered into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(f) Guaranty Obligations in respect of Indebtedness of a Credit Party
to the extent such Indebtedness is permitted to exist or be incurred
pursuant to this Section 6.1;
(g) Indebtedness under the Existing First State Bank Credit Facility
so long as the aggregate principal amount outstanding thereunder shall not
exceed $8,000,000 at any time and so long as such Indebtedness is unsecured
except for liens on assets not having a value in excess of $1,000,000;
(h) Indebtedness under the Existing EFT Commerce Bank Credit Facility
so long as the aggregate principal amount outstanding thereunder shall not
exceed $10,000,000 at any time; and
(i) other Indebtedness of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $25,000,000.
6.2 Liens.
-----
Contract, create, incur, assume or permit to exist any Lien with
respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
6.3 Nature of Business.
------------------
Alter the character of its business in any material respect from that
conducted as of the Closing Date.
6.4 Mergers, Sale of Assets and Indebtedness of Subsidiaries
--------------------------------------------------------
(a) Dissolve, liquidate or wind up its affairs, sell, transfer, lease
or otherwise dispose of its property or assets or agree to do so at a future
time; provided that the following, without duplication, shall be expressly
permitted:
(i) the sale, transfer, lease or other disposition of inventory
and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash
Equivalents;
(iii) (A) the disposition of property or assets as a direct
result of a Recovery Event or (B) the sale, lease, transfer or other
disposition of machinery, parts and equipment no longer used or useful
in the conduct of the business of the Borrower or any of its
Subsidiaries, so long as the net proceeds therefrom are used to replace
such machinery, parts and equipment or to purchase or otherwise acquire
new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets between
Credit Parties; and
(v) the sale, lease or transfer of property or assets not to
exceed $20,000,000 in the aggregate in any fiscal year;
provided, that, in the case of clauses (i), (ii), (iii) and (v) above,
at least 50% of the consideration received therefor by the Borrower or any
such Subsidiary is in the form of cash or Cash Equivalents; or
(b) enter into any transaction of merger or consolidation, except for
(i) investments or acquisitions permitted pursuant to Section 6.5, and (ii)
the merger or consolidation of a Credit Party with and into another Credit
Party; provided that if the Borrower is a party thereto, the Borrower will
be the surviving corporation.
6.5 Advances, Investments and Loans.
-------------------------------
At any time make or permit to remain outstanding any loan or advance
to, or guarantee, endorse or otherwise be or become contingently liable,
directly or indirectly, in connection with the obligations, stock or
dividends of, or own, purchase or acquire any stock, obligations or
Securities of, or any other interest in, or make any capital contribution
to, or purchase, lease or otherwise acquire (in a single transaction or a
series of related transactions) the property or assets of (other than
purchases or other acquisitions of inventory, materials, property and
equipment in the ordinary course of business, except as otherwise limited or
prohibited herein) (collectively, "Investments"), any Person, except that
(each of the following, collectively, "Permitted Investments"):
(a) the Borrower and any Subsidiary may make or permit to remain
outstanding loans or advances to any Credit Party;
(b) the Borrower and any Subsidiary may make Permitted Acquisitions;
(c) the Borrower and its Subsidiaries may own, purchase or acquire
cash and Cash Equivalents;
(d) the Borrower and its Subsidiaries may make loans and advances to
employees (other than any officer or director) of the Borrower or its
Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time
outstanding;
(e) the Borrower and its Subsidiaries may make or permit to remain
outstanding any Investment in any other Person, which is not otherwise
included in the foregoing clauses (a) through (d), inclusive, provided that
the aggregate of such Investments shall not, at any time, exceed 5% of
Consolidated Assets determined at such time; and
(f) the Borrower and its Subsidiaries may acquire, through any
acquisition or any series of related acquisitions (a "Minor Acquisition"),
the assets or a majority of the Voting Stock of a Person that is
incorporated, formed or organized in the United States, or any division,
line of business or other business unit of a Person that is incorporated,
formed or organized in the United States, in each case that is a type of
business (or assets used in a type of business) permitted to be engaged in
by the Credit Parties and their Subsidiaries pursuant to Section 6.3 hereof,
so long as the aggregate consideration paid for any such individual Minor
Acquisition does not exceed the lesser of (i) $55,000,000 or (ii) 10% of
Consolidated Assets determined at such time; provided, that (A) no Default
or Event of Default shall then exist or would exist after giving effect to
such Minor Acquisition and (B) such Minor Acquisition is not a "hostile"
acquisition and has been approved by the board of directors and/or
shareholders of the applicable Credit Party and the target of such Minor
Acquisition.
Investments shall be valued at cost, less any return of capital
thereon.
6.6 Transactions with Affiliates.
----------------------------
Enter into directly or indirectly any Material transaction or Material
group of related transactions (including without limitation the purchase,
lease, sale or exchange of properties of any kind or the rendering of any
service) with any Affiliate (other than the Borrower or another Subsidiary),
except pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
6.7 Fiscal Year; Organizational Documents; Material Contracts.
---------------------------------------------------------
Neither change its fiscal year nor amend, modify or change its articles
of incorporation (or corporate charter or other similar organizational
document) or bylaws (or other similar document) in any manner materially
adverse to the interests of the Lenders without the prior written consent of
the Administrative Agent, nor without the prior written consent of the
Administrative Agent, amend, modify, cancel or terminate or fail to renew or
extend or permit the amendment, modification, cancellation or termination of
any of the Material Contracts, except in the event that such amendments,
modifications, cancellations or terminations would not reasonably be
expected to have a Material Adverse Effect.
6.8 Limitation on Restricted Actions.
--------------------------------
Directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Person to (a) pay dividends or make any other distributions to the Borrower
on its Capital Stock or with respect to any other interest or participation
in, or measured by, its profits, (b) pay any Indebtedness or other
obligation owed to the Borrower, (c) make loans or advances to the Borrower,
(d) sell, lease or transfer any of its properties or assets to the Borrower,
or (e) act as a guarantor and pledge its assets pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses
(a)-(d) above) for such encumbrances or restrictions existing under or by
reason of (i) this Credit Agreement and the other Credit Documents, (ii)
applicable law or (iii) any Permitted Lien or any document or instrument
governing any Permitted Lien; provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien.
6.9 Restricted Payments.
-------------------
Directly or indirectly, declare, order, make or set apart any sum for
or pay any Restricted Payment, except (a) to make dividends payable solely
in the same class of Capital Stock of such Person, (b) to make dividends or
other distributions payable to the Borrower (directly or indirectly through
Subsidiaries), (c) dividends paid by the Borrower on account of any shares
of any class of Capital Stock of the Borrower and (d) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of Capital Stock
of the Borrower; provided, that the aggregate amount paid by the Borrower
with respect to clauses (c)-(d) above in any fiscal year shall not exceed
12.5% of Consolidated Net Worth determined as of the end of the immediately
preceding fiscal year.
6.10 Sale Leasebacks.
---------------
Directly or indirectly, become or remain liable as lessee or as
guarantor or other surety with respect to any lease or leases obligating any
Credit Party to pay more than $5,000,000 in the aggregate in any fiscal year
of the Borrower, whether an operating lease or a Capital Lease, of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, (a) which the Borrower has sold or transferred or is to sell or
transfer or (b) which the Borrower intends to use for substantially the same
purpose as any other property which has been sold or is to be sold or
transferred by the Borrower in connection with such lease.
6.11 No Further Negative Pledges.
---------------------------
Enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any security for such obligation if security is given for some
other obligation, except (a) pursuant to this Credit Agreement and the other
Credit Documents and (b) in connection with any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien.
SECTION 7
EVENTS OF DEFAULT
-----------------
7.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) The Borrower shall fail to pay any principal on any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to reimburse
the Issuing Lender for any LOC Obligations when due in accordance with the
terms hereof; or the Borrower shall fail to pay any interest on any Loan or
any Fee or other amount payable hereunder when due in accordance with the
terms hereof and such failure shall continue unremedied for three (3)
Business Days (or any Guarantor shall fail to pay on the Guaranty in respect
of any of the foregoing or in respect of any other Guaranty Obligations
thereunder within the aforesaid period of time); or
(b) Any representation or warranty made or deemed made herein or in
any of the other Credit Documents or which is contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with this Credit Agreement shall prove to have been incorrect,
false or misleading in any material respect on or as of the date made or
deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe
any term, covenant or agreement applicable to it contained in Sections
5.4(a) or 5.9 or in Section 6 and such failure shall continue unremedied for
a period of five Business Days; (ii) any Credit Party shall fail to perform,
comply with or observe any term, covenant or agreement applicable to it
contained in Section 5.1 and such failure shall continue unremedied for a
period of ten Business Days; or (iii) any Credit Party shall fail to comply
with any other covenant contained in this Credit Agreement or the other
Credit Documents or any other agreement, document or instrument among any
Credit Party, the Administrative Agent and the Lenders or executed by any
Credit Party in favor of the Administrative Agent or the Lenders (other than
as described in Sections 7.1(a), 7.1(b) or 7.1(c)(i) above) and such failure
is not cured within thirty (30) days after the earlier of the Borrower
obtaining knowledge thereof or the Borrower's receipt of written notice
thereof from the Administrative Agent; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness (other than the
Notes) in a principal amount outstanding of at least $2,500,000 in the
aggregate for the Credit Parties and their Subsidiaries beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any other agreement or condition relating to
any Indebtedness in a principal amount outstanding of at least $2,500,000 in
the aggregate for the Credit Parties or their Subsidiaries 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 Indebtedness (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; or
(e) (i) Any Credit Party or any of its Subsidiaries 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 a 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,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Credit Party or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Credit Party or any of its Subsidiaries 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
any Credit Party or any of its Subsidiaries 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) any Credit Party or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clauses (i),
(ii), or (iii) above; or (v) any Credit Party or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against any
Credit Party or any of its Subsidiaries involving in the aggregate a
liability (to the extent not paid when due or covered by insurance) of
$20,000,000 or more and all such judgments or decrees shall not have been
paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan or any Lien in favor of the PBGC or a
Single Employer Plan (other than a Permitted Lien) shall arise on the assets
of any Credit Party or any ERISA Affiliate, (iii) a Reportable Event shall
occur with respect to, or proceedings under Title IV of ERISA shall commence
to have a trustee appointed, or a trustee shall be appointed under Title IV
of ERISA, to administer or to terminate, any Single Employer 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 Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, or
(v) any Credit Party or any ERISA Affiliate shall incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
any Multiemployer Plan; and in each case in clauses (i) through (v) above,
such event or condition, together with all other such events or conditions,
if any, would reasonably be expected to have a Material Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) The Guaranty or any provision thereof shall cease to be in full
force and effect or any Guarantor or any Person acting by or on behalf of
any Guarantor shall deny or disaffirm any Guarantor's obligations under the
Guaranty; or
(j) Any other Credit Document shall fail to be in full force and
effect or to give the Administrative Agent and/or the Lenders the rights,
powers and privileges purported to be created thereby, or any Credit Party
or any Person acting by or on behalf of any Credit Party shall deny or
disaffirm any Credit Party Obligation.
7.2 Acceleration; Remedies.
----------------------
Upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent may, or upon the request and direction of the
Required Lenders shall, by written notice to the Borrower take any of the
following actions (including any combination of such actions):
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations (including, without limitation, Fees) of
any and every kind owing by any Credit Party to the Administrative
Agent and/or any of the Lenders hereunder to be due and direct the
Borrower to pay to the Administrative Agent cash collateral as security
for the LOC Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to 105% of the maximum amount which
may be drawn under Letters of Credit then outstanding, whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
each Credit Party.
(c) Enforcement of Rights. Exercise any and all rights and
remedies created and existing under the Credit Documents, whether at
law or in equity.
(d) Rights Under Applicable Law. Exercise any and all rights and
remedies available to the Administrative Agent or the Lenders under
applicable law.
Notwithstanding the foregoing, if an Event of Default specified in Section
7.1(e) shall occur, then the Commitments shall automatically terminate and
all Loans, all accrued interest in respect thereof, all accrued and unpaid
Fees and other indebtedness or obligations owing to the Administrative Agent
and/or any of the Lenders hereunder automatically shall immediately become
due and payable without presentment, demand, protest or the giving of any
notice or other action by the Administrative Agent or the Lenders, all of
which are hereby waived by the Borrower.
SECTION 8
AGENCY PROVISIONS
-----------------
8.1 Appointment.
-----------
Each Lender hereby irrevocably designates and appoints Wachovia as the
Administrative Agent of such Lender under this Credit Agreement, and each
such Lender irrevocably authorizes Wachovia, as the Administrative Agent for
such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Credit
Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Credit Agreement, the Administrative Agent shall not 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 this
Credit Agreement or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under this
Credit Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care. Without limiting the foregoing, the Administrative
Agent may appoint one of its affiliates as its agent to perform the
functions of the Administrative Agent hereunder relating to the advancing of
funds to the Borrower and distribution of funds to the Lenders and to
perform such other related functions of the Administrative Agent hereunder
as are reasonably incidental to such functions.
8.3 Exculpatory Provisions.
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for
any action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Credit Agreement (except for its or such Person's
own gross negligence or willful misconduct) or (b) responsible in any manner
to any of the Lenders for any recitals, statements, representations or
warranties made by any Credit Party or any officer thereof contained in this
Credit Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Credit Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any
of the Credit Documents or for any failure of any Credit Party to perform
its obligations hereunder or thereunder. The Administrative Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance by any Credit Party of any of the agreements
contained in, or conditions of, this Credit Agreement, or to inspect the
properties, books or records of any Credit Party.
8.4 Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation
believed by it in good faith 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
Credit Parties), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless (a) a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent and (b) the Administrative Agent shall have
received the written agreement of such assignee to be bound hereby as fully
and to the same extent as if such assignee were an original Lender party
hereto, in each case in form satisfactory to the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Credit Agreement unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Credit Documents in accordance with a request of
the Required Lenders or all of the Lenders, as may be required under this
Credit Agreement, 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.
8.5 Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received notice from a Lender or the Borrower
referring to this Credit 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 receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; provided,
however, that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders except to the extent that this Credit Agreement
expressly requires that such action be taken, or not taken, only with the
consent or upon the authorization of the Required Lenders, or all of the
Lenders, as the case may be.
8.6 Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-
fact or affiliates has made any representation or warranty to it and that no
act by the Administrative Agent 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 to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative 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 the Credit
Parties and made its own decision to make its Loans hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative 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 this Credit
Agreement, 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 the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Credit Parties which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-
fact or affiliates.
8.7 Indemnification.
---------------
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Credit Parties and without
limiting the obligation of the Credit Parties to do so), ratably according
to their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section, 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 in any way relating to or arising out of any Credit
Document or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any of the
foregoing; provided, however, 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 to the extent
resulting from the Administrative Agent's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction pursuant to a
final non-appealable judgment. The agreements in this Section 8.7 shall
survive the termination of this Credit Agreement and payment of the Notes
and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity.
-----------------------------------------------
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower
as though the Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and powers
under this Credit Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign as Administrative Agent upon 30
days' prior notice to the Borrower and the Lenders. If the Administrative
Agent shall resign as Administrative Agent under this Credit Agreement and
the other Credit Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower (so long as not Event of Default has
occurred and is continuing), whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Credit Agreement or any holders of the Notes.
After any retiring Administrative Agent's resignation as Administrative
Agent, the provisions of this Section 8.9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Credit Agreement.
8.10 Patriot Act Notice.
------------------
Each Lender and the Administrative Agent (for itself and not on behalf
of any other party) hereby notifies the Borrower that, pursuant to the
requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed
into law October 26, 2001 (the "Patriot Act"), it is required to obtain,
verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot Act.
8.11 Other Agents, Arrangers and Managers.
------------------------------------
None of the Lenders or other Persons identified on the front page or
signature pages of this Credit Agreement as "Syndication Agent," "Lead
Arranger" or "Book Manager" shall have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement other than, in
the case of the Syndication Agent, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to
enter into this Credit Agreement or in taking or not taking action
hereunder.
SECTION 9
GUARANTY
--------
9.1 The Guaranty.
------------
In order to induce the Lenders to enter into this Credit Agreement and
any Hedging Agreement Provider to enter into any Hedging Agreement and to
extend credit hereunder and thereunder and in recognition of the direct
benefits to be received by the Guarantors from the Extensions of Credit
hereunder and any Hedging Agreement, each of the Guarantors hereby agrees
with the Administrative Agent and the Lenders as follows: each Guarantor
hereby unconditionally and irrevocably jointly and severally guarantees as
primary obligor and not merely as surety the full and prompt payment when
due, whether upon maturity, by acceleration or otherwise, of any and all
indebtedness of the Borrower owed to the Administrative Agent, the Lenders
and the Hedging Agreement Providers. If any or all of the indebtedness
becomes due and payable hereunder or under any Hedging Agreement with a
Hedging Agreement Provider, each Guarantor unconditionally promises to pay
such indebtedness to the Administrative Agent, the Lenders, the Hedging
Agreement Providers, or their respective order, or demand, together with any
and all reasonable expenses which may be incurred by the Administrative
Agent, the Lenders or the Hedging Agreement Providers in collecting any of
the Credit Party Obligations. The word "indebtedness" is used in this
Article X in its most comprehensive sense and includes any and all advances,
debts, obligations and liabilities of the Borrower and the Guarantors,
including specifically all Credit Party Obligations, arising in connection
with this Credit Agreement, the other Credit Documents or Hedging Agreement
with a Hedging Agreement Provider, in each case, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time reduced,
or extinguished and thereafter increased or incurred, whether the Borrower
and the Guarantors may be liable individually or jointly with others,
whether or not recovery upon such indebtedness may be or hereafter become
barred by any statute of limitations, and whether or not such indebtedness
may be or hereafter become otherwise unenforceable.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable law relating to
fraudulent conveyances or transfers) then the obligations of each such
Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (including, without limitation, the
Bankruptcy Code or its non-U.S. equivalent).
9.2 Bankruptcy.
----------
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders and any Hedging Agreement
Provider whether or not due or payable by the Borrower upon the occurrence
of any of the events specified in Section 7.1(e) as applicable to the
Borrower or any Subsidiaries of the Borrower, and unconditionally promises
to pay such Credit Party Obligations to the Administrative Agent for the
account of the Lenders and to any such Hedging Agreement Provider, or order,
on demand, in lawful money of the United States. Each of the Guarantors
further agrees that to the extent that the Borrower or a Guarantor shall
make a payment or a transfer of an interest in any property to the
Administrative Agent, any Lender or any Hedging Agreement Provider, which
payment or transfer or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, or otherwise is avoided, and/or
required to be repaid to the Borrower or a Guarantor, the estate of the
Borrower or a Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or other applicable law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
9.3 Nature of Liability.
-------------------
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by
any other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower
or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to
the Credit Party Obligations of the Borrower, or (c) any payment on or in
reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, or
(e) any payment made to the Administrative Agent, the Lenders or any Hedging
Agreement Provider on the Credit Party Obligations that the Administrative
Agent, such Lenders or such Hedging Agreement Provider repay the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each of the Guarantors
waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
9.4 Independent Obligation.
----------------------
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or
not any other Guarantor or the Borrower is joined in any such action or
actions.
9.5 Authorization.
-------------
Each of the Guarantors authorizes the Administrative Agent, each Lender
and each Hedging Agreement Provider without notice or demand (except as
shall be required by applicable law and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to (a)
renew, compromise, extend, increase, accelerate or otherwise change the time
for payment of, or otherwise change the terms of the Credit Party
Obligations or any part thereof in accordance with this Credit Agreement and
any Hedging Agreement, as applicable, including any increase or decrease of
the rate of interest thereon, (b) take and hold security from any Guarantor
or any other party for the payment of this Guaranty or the Credit Party
Obligations and exchange, enforce waive and release any such security, (c)
apply such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their discretion may determine and
(d) release or substitute any one or more endorsers, Guarantors, the
Borrower or other obligors.
9.6 Reliance.
--------
It is not necessary for the Administrative Agent, the Lenders or any
Hedging Agreement Providers to inquire into the capacity or powers of the
Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
9.7 Waiver.
------
(a) Each of the Guarantors waives any right (except as shall be
required by applicable law and cannot be waived) to require the
Administrative Agent, any Lender or any Hedging Agreement Provider to
(i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent's, any Lender's or any Hedging
Agreement Provider's power whatsoever. Each of the Guarantors waives
any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party other than payment in full of the
Credit Party Obligations, including without limitation any defense
based on or arising out of the disability of the Borrower, any other
guarantor or any other party, or the unenforceability of the Credit
Party Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower other than payment in
full of the Credit Party Obligations. The Administrative Agent or any
of the Lenders may, at their election, foreclose on any security held
by the Administrative Agent or a Lender by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the
Administrative Agent and any Lender may have against the Borrower or
any other party, or any security, without affecting or impairing in any
way the liability of any Guarantor hereunder except to the extent the
Credit Party Obligations have been paid in full. Each of the
Guarantors, to the extent permitted by law, waives any defense arising
out of any such election by the Administrative Agent and each of the
Lenders, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of the
Guarantors against the Borrower or any other party or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices
of nonperformance, notice of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation
or incurring of new or additional Credit Party Obligations. Each
Guarantor assumes all responsibility for being and keeping itself
informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Credit
Party Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and agrees that neither
the Administrative Agent nor any Lender shall have any duty to advise
such Guarantor of information known to it regarding such circumstances
or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any
rights of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
U.S. Bankruptcy Code, or otherwise) to the claims of the Lenders or the
Hedging Agreement Provider against the Borrower or any other guarantor
of the Credit Party Obligations of the Borrower owing to the Lenders or
such Hedging Agreement Provider (collectively, the "Other Parties") and
all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of this Guaranty until such time as the
Credit Party Obligations shall have been paid in full, no Credit
Document or Hedging Agreement with a Hedging Agreement Provider remains
in effect and the Commitments have been terminated. Each of the
Guarantors hereby further agrees not to exercise any right to enforce
any other remedy which the Administrative Agent, the Lenders or any
Hedging Agreement Provider now have or may hereafter have against any
Other Party, any endorser or any other guarantor of all or any part of
the Credit Party Obligations of the Borrower and any benefit of, and
any right to participate in, any security or collateral given to or for
the benefit of the Lenders and/or the Hedging Agreement Providers to
secure payment of the Credit Party Obligations of the Borrower until
such time as the Credit Party Obligations shall have been paid in full,
no Credit Document or Hedging Agreement with a Hedging Agreement
Provider remains in effect and the Commitments have been terminated.
9.8 Limitation on Enforcement.
-------------------------
The Lenders and the Hedging Agreement Providers agree that this
Guaranty may be enforced only by the action of the Administrative Agent
acting upon the instructions of the Required Lenders or any such Hedging
Agreement Provider (only with respect to obligations under the applicable
Hedging Agreement entered into with such Hedging Agreement Provider) and
that no Lender or Hedging Agreement Provider shall have any right
individually to seek to enforce or to enforce this Guaranty, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent for the benefit of the Lenders under the terms of this
Credit Agreement and for the benefit of any Hedging Agreement Provider under
any Hedging Agreement provided by such Hedging Agreement Provider. The
Lenders and the Hedging Agreement Providers further agree that this Guaranty
may not be enforced against any director, officer, employee or stockholder
of the Guarantors.
9.9 Confirmation of Payment.
-----------------------
The Administrative Agent and the Lenders will, upon request after
payment of the Credit Party Obligations under the Credit Documents which are
the subject of this Guaranty and termination of the Commitments relating
thereto, confirm to the Borrower, the Guarantors or any other Person that
the Credit Party Obligations under the Credit Documents have been paid in
full and the Commitments relating thereto terminated, subject to the
provisions of Section 9.2.
SECTION 10
MISCELLANEOUS
-------------
10.1 Amendments and Waivers.
----------------------
Neither this Credit Agreement, nor any of the other Credit Documents,
nor any terms hereof or thereof may be amended, supplemented, waived or
modified except in accordance with the provisions of this Section. The
Required Lenders may, or, with the written consent of the Required Lenders,
the Administrative Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this
Credit Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of the Borrower hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders may specify in
such instrument, any of the requirements of this Credit Agreement or the
other Credit Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
waiver, supplement, modification or release shall:
(i) reduce the amount or extend the scheduled date of maturity of
any Loan or Note or any installment thereon, or reduce the stated rate
of any interest or fee payable hereunder (except in connection with a
waiver of interest at the increased post-default rate) or extend the
scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lender's Commitment, in each case without
the written consent of each Lender directly affected thereby; or
(ii) amend, modify or waive any provision of this Section 10.1 or
reduce the percentage specified in the definition of Required Lenders,
without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Section 9
without the written consent of the then Administrative Agent; or
(iv) release all or substantially all of the Guarantors from their
obligations under the Guaranty, without the written consent of all the
Lenders; or
(v) amend, modify or waive any provision of the Credit Documents
requiring consent, approval or request of the Required Lenders or all
Lenders, without the written consent of the Required Lenders or of all
Lenders as appropriate; or
(vi) amend or modify the definition of Credit Party Obligations to
delete or exclude any obligation or liability described therein without
the written consent of each Lender and each Hedging Agreement Provider
directly affected thereby; or
(vii) amend, modify or waive the order in which Credit Party
Obligations are paid in Section 2.12(b) without the written consent of
each Lender and each Hedging Agreement Provider directly affected
thereby;
provided, further, that no amendment, waiver or consent affecting the rights
or duties of the Administrative Agent under any Credit Document shall in any
event be effective, unless in writing and signed by the Administrative Agent
in addition to the Lenders required hereinabove to take such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the other Credit Parties, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under
the outstanding Loans and Notes and other Credit Documents, and any Default
or Event of Default permanently 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.
Notwithstanding any of the foregoing to the contrary, the consent of
the Borrower shall not be required for any amendment, modification or waiver
of the provisions of Section 8 (other than the provisions of Section 8.9);
provided, however, that the Administrative Agent will provide written notice
to the Borrower of any such amendment, modification or waiver. In addition,
the Borrower and the Lenders hereby authorize the Administrative Agent to
modify this Credit Agreement by unilaterally amending or supplementing
Schedule 2.1(a) from time to time in the manner requested by the Borrower,
the Administrative Agent or any Lender in order to reflect any assignments
or transfers of the Loans as provided for hereunder; provided further,
however, that the Administrative Agent shall promptly deliver a copy of any
such modification to the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (A) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization
plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein and (B) the Required Lenders
may consent to allow a Credit Party to use cash collateral in the context of
a bankruptcy or insolvency proceeding.
The Borrower shall be permitted to replace with a replacement financial
institution acceptable to the Administrative Agent any Lender (other than
Wachovia Bank, National Association) that fails to consent to any proposed
amendment, modification, termination, waiver or consent with respect to any
provision hereof or of any other Credit Document that requires the unanimous
approval of all of the Lenders, the approval of all of the Lenders affected
thereby or the approval of a class of Lenders, in each case in accordance
with the terms of this Section 10.1, so long as the consent of the Required
Lenders shall have been obtained with respect to such amendment,
modification, termination, waiver or consent; provided that (1) such
replacement does not conflict with any Requirement of Law, (2) the
replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (3) the replacement financial institution shall approve the
proposed amendment, modification, termination, waiver or consent, (4) the
Borrower shall be liable to such replaced Lender under Section 2.17 if any
LIBOR Rate Loan owing to such replaced Lender shall be purchased other than
on the last day of the Interest Period relating thereto, (5) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (6) until such
time as such replacement shall be consummated, the Borrower shall pay to the
replaced Lender all additional amounts (if any) required pursuant to Section
2.15, 2.16 or 2.18(a), as the case may be, (7) the Borrower provides at
least three (3) Business Days' prior notice to such replaced Lender, and
(8) any such replacement shall not be deemed to be a waiver of any rights
that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender. In the event any replaced Lender fails to
execute the agreements required under Section 10.6 in connection with an
assignment pursuant to this Section 10.1, the Borrower may, upon two (2)
Business Days' prior notice to such replaced Lender, execute such agreements
on behalf of such replaced Lender. A Lender shall not be required to be
replaced if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such
replacement cease to apply.
10.2 Notices.
-------
(a) All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by
telecopy or other electronic communications as provided below), and,
unless otherwise expressly provided herein, shall be deemed to have
been duly given or made (a) when delivered by hand, (b) when
transmitted via telecopy (or other facsimile device) to the number set
out herein, (c) the day following the day on which the same has been
delivered prepaid (or pursuant to an invoice arrangement) to a
reputable national overnight air courier service, or (d) the third
Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case addressed as follows
in the case of the Borrower, the other Credit Parties and the
Administrative Agent, and as set forth on Schedule 10.2 in the case of
the Lenders, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
if to the Borrower:
Xxxx Xxxxx & Associates, Inc.
000 Xxxxxxx 00
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx, CEO
Xxxxx Xxxxxxxx, CFO
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx & Associates, Inc.
00000 X. 00xx Xx.
Xxxxxx, Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Administrative Agent:
Wachovia Bank, National Association
One Wachovia Center
000 X. Xxxxxxx Xxxxxx, XX-0
Charlotte, North Carolina 28288-0760
Attention: Will Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
Xxx Xxxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(b) Notices and other communications to the Lenders or the
Administrative Agent hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices to any Lender
pursuant to Section 2 if such Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under
such Section by electronic communication. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the
intended recipient (such as by the "return receipt requested" function,
as available, return e-mail or other written acknowledgement); provided
that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication
shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon
the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice
or communication is available and identifying the website address
therefor.
10.3 No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise and no delay in exercising, on the part of the
Administrative 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.
10.4 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 Credit Agreement and the
Notes and the making of the Loans; provided that all such representations
and warranties shall terminate on the date upon which the Commitments have
been terminated and all Credit Party Obligations have been paid in full.
10.5 Payment of Expenses and Taxes.
-----------------------------
The Credit Parties jointly and severally agree (a) to pay or reimburse
the Administrative Agent and the Lead Arranger for all their reasonable out-
of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, printing and execution of, and any amendment,
supplement or modification to, this Credit Agreement and the other Credit
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, together with the reasonable fees and
disbursements of counsel to the Administrative Agent and the Lead Arranger
(subject to any limits agreed to by the Borrower and the Administrative
Agent), (b) to pay or reimburse each Lender and the Administrative Agent for
all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Credit Agreement and the other Credit
Documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the Lenders, (c)
on demand, to pay, indemnify, and hold each Lender and the Administrative
Agent 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, if any, which may be payable or determined
to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by,
or any amendment, supplement or modification of, or any waiver or consent
under or in respect of, the Credit Documents and any such other documents,
(d) to pay or reimburse each Lender and the Administrative Agent for any
costs, fees or expenses incurred in connection with any investigation
(including, without limitation, background checks) performed to determine
whether the Borrower or any of its Subsidiaries or any officer, director,
shareholder or affiliate of the Borrower or any of its Subsidiaries has
violated any Anti-Terrorism Laws or other similar law and (e) to pay,
indemnify, and hold each Lender and the Administrative Agent and their
Affiliates harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs
(including, without limitation, settlement costs), expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents and any
such other documents and the use, or proposed use, of proceeds of the Loans
(all of the foregoing, collectively, the "Indemnified Liabilities");
provided, however, that the Borrower shall not have any obligation hereunder
to the Administrative Agent or any Lender with respect to Indemnified
Liabilities arising from the negligence or willful misconduct of the
Administrative Agent or any such Lender, as determined by a court of
competent jurisdiction pursuant to a final non-appealable judgment. The
agreements in this Section 10.5 shall survive repayment of the Loans, Notes
and all other Credit Party Obligations.
10.6 Successors and Assigns; Participations; Purchasing Lenders.
----------------------------------------------------------
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or
obligations under this Credit Agreement or the other Credit Documents
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
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 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 Credit Agreement to the other parties
to this Credit 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 Credit Agreement, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. No Lender shall transfer or grant
any participation under which the Participant shall have rights to approve
any amendment to or waiver of this Credit Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
scheduled maturity of any Loan or Note or any installment thereon in which
such Participant is participating, or reduce the stated rate or extend the
time of payment of interest or fees thereon (except in connection with a
waiver of interest at the increased post-default rate) or reduce the
principal amount thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default shall not constitute a
change in the terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without consent of any Participant if
the Participant's participation is not increased as a result thereof), (ii)
release any of the Guarantors from its obligations under the Guaranty or
(iii) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Credit Agreement. In the case of any such
participation, the Participant shall not have any rights under this Credit
Agreement or any of the other Credit Documents (the Participant's rights
against such Lender in respect of such participation to be those set forth
in the agreement executed by such Lender in favor of the Participant
relating thereto) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation; provided that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16,
2.17 and 10.5 with respect to its participation in the Commitments and the
Loans outstanding from time to time; provided further, that no Participant
shall be entitled to receive any greater amount pursuant to such Sections
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.
(c) Any Lender may, in the ordinary course of its lending business and
in accordance with applicable law, at any time, sell or assign to any Lender
or any Affiliate or Related Fund thereof and, with the consent of the
Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, the Borrower (in each case, which consent shall
not be unreasonably withheld or delayed), to one or more additional banks or
financial institutions or entities ("Purchasing Lenders"), all or any part
of its rights and obligations under this Credit Agreement and the Notes in
minimum amounts of $5,000,000 with respect to its Commitment and Loans (or,
if less, the entire amount of such Lender's obligations), pursuant to a
Commitment Transfer Supplement, executed by such Purchasing Lender and such
transferor Lender (and, to the extent required above, the Administrative
Agent and the Borrower), and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that, except in the case
of an assignment of the entire remaining amount of the transferor Lender's
Commitment and the Loans at the time owing to it, the principal outstanding
balance of the Loans of the transferor Lender subsequent to the
effectiveness of the Commitment Transfer Supplement shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed). Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Commitment Transfer Supplement, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the transferor Lender thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its obligations under
this Credit Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Credit Agreement, such transferor Lender shall cease
to be a party hereto; provided, however, that such Lender shall still be
entitled to any indemnification rights hereunder). Such Commitment Transfer
Supplement shall be deemed to amend this Credit Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing
Lender and the resulting adjustment of Commitment Percentages arising from
the purchase by such Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Credit Agreement and the
Notes. On or prior to the Transfer Effective Date specified in such
Commitment Transfer Supplement, the Borrower shall execute and deliver to
the Administrative Agent in exchange for the Notes delivered to the
Administrative Agent pursuant to such Commitment Transfer Supplement new
Notes to the order of such Purchasing Lender, to the extent requested by
such Purchasing Lender, in an amount equal to the Commitment assumed by it
pursuant to such Commitment Transfer Supplement and, unless the transferor
Lender has not retained a Commitment hereunder, new Notes to the order
of the transferor Lender in an amount equal to the Commitment retained
by it hereunder. Such new Notes shall be dated the Closing Date and
shall otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the Administrative
Agent to the Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its address referred to
in Section 10.2 a copy of each Commitment Transfer Supplement delivered to
it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment Transfer
Supplement, together with payment to the Administrative Agent by the
transferor Lender or the Purchasing Lender, as agreed between them, of a
registration and processing fee of $3,500 for each Purchasing Lender listed
in such Commitment Transfer Supplement and the Notes subject to such
Commitment Transfer Supplement, the Administrative Agent shall (i) accept
such Commitment Transfer Supplement, (ii) record the information contained
therein in the Register and (iii) give prompt notice of such acceptance and
recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Credit Agreement or which has been
delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Subsidiaries prior
to becoming a party to this Credit Agreement, in each case subject to
Section 10.16.
(g) At the time of each assignment pursuant to this Section 10.6 to a
Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable, a 2.18 Certificate)
described in Section 2.18.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Credit Agreement (including, without
limitation, any right to payment of principal and interest under any Note)
to any Federal Reserve Bank in accordance with applicable laws.
10.7 Adjustments; Set-off.
--------------------
(a) Each Lender agrees that if any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of its Loans, 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 Section 7.1(e), or otherwise) in a greater proportion
than any such payment to or collateral received by any other Lender, if any,
in respect of such other Lender's Loans, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefited 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 Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees
that each Lender so purchasing a portion of another Lender's Loans 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.
(b) In addition to any rights and remedies of the Lenders provided by
law (including, without limitation, other rights of set-off), each Lender
shall have the right, without prior notice to any Credit Party, any such
notice being expressly waived by the Credit Parties to the extent permitted
by applicable law, upon the occurrence of any Event of Default, to setoff
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of any Credit Party, or any part thereof in such amounts as such
Lender may elect, against and on account of the obligations and liabilities
of the Borrower and the other Credit Parties to such Lender hereunder and
claims of every nature and description of such Lender against the Borrower,
in any currency, whether arising hereunder, under any other Credit Document
or any Hedging Agreement with a Hedging Agreement Provider provided by such
Lender pursuant to the terms of this Credit Agreement, as such Lender may
elect, whether or not such Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by such Lender
against the Credit Party or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor of any such Credit Party, or against anyone
else claiming through or against any such Credit Party or any 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 occurrence of any Event of Default. Each Lender agrees
promptly to notify the applicable Credit Party and the Administrative Agent
after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application.
10.8 Table of Contents and Section Headings.
--------------------------------------
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this
Credit Agreement.
10.9 Counterparts.
------------
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the
same agreement.
10.10 Effectiveness.
-------------
This Credit Agreement shall become effective on the date on which all
of the parties have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Administrative Agent (or
counsel to the Administrative Agent) or, in the case of the Lenders, shall
have given to the Administrative Agent written, telecopied or telex notice
(actually received) at such office that the same has been signed and mailed
to it.
10.11 Severability.
------------
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12 Integration.
-----------
This Credit Agreement and the other Credit Documents represent the
agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the
Borrower or any Lender relative to the subject matter hereof not expressly
set forth or referred to herein or in the other Credit Documents.
10.13 GOVERNING LAW.
-------------
THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
10.14 Arbitration.
-----------
(a) The parties hereto hereby agree to be bound by the provisions
of this Section 10.14. Notwithstanding the provisions of Section 10.15
to the contrary, upon demand of any party hereto, whether made before
or after institution of any Dispute between or among parties to this
Credit Agreement shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder. Disputes may
include, without limitation, tort claims, counterclaims, disputes as to
whether a matter is subject to arbitration, claims brought as class
actions, claims arising from Credit Documents executed in the future,
or claims arising out of or connected with the transaction reflected by
this Credit Agreement.
Arbitration shall be conducted under and governed by Arbitration
Rules of the AAA and Title 9 of the U.S. Code. All arbitration
hearings shall be conducted in Charlotte, North Carolina. A hearing
shall begin within ninety (90) days of demand for arbitration and all
hearings shall be concluded within one hundred twenty (120) days of
demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then no more than a total
extension of sixty (60) days. The expedited procedures set forth in
Rule 51 et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall
apply to any Dispute. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys selected from the
Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge
from the highest court of general jurisdiction, state or federal, of
the state where the hearing will be conducted or if such person is not
available to serve, the single arbitrator may be a licensed attorney.
The parties hereto do not waive applicable Federal or state substantive
law except as provided herein. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding the
foregoing, this arbitration provision does not apply to Disputes under
or related to Hedging Agreements.
(b) Notwithstanding the preceding binding arbitration provisions,
the Administrative Agent, the Lenders and the Credit Parties agree to
preserve, without diminution, certain remedies that the Administrative
Agent on behalf of the Lenders may employ or exercise freely,
independently or in connection with an arbitration proceeding or after
an arbitration action is brought. The Administrative Agent on behalf
of the Lenders shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale
granted under Credit Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii)
all rights of self-help including peaceful occupation of real property
and collection of rents, setoff, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment
of receiver and filing an involuntary bankruptcy case; and (iv) when
applicable, a judgment by confession of judgment. Any claim or
controversy with regard to the Administrative Agent's entitlement on
behalf of the Lenders to exercise such remedies is a Dispute.
Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party
in a Dispute.
(c) The parties hereto agree that they shall not have a remedy of
punitive or exemplary damages against the other in any Dispute and
hereby waive any right or claim to punitive or exemplary damages they
have now or which may arise in the future in connection with any
Dispute whether the Dispute is resolved by arbitration or judicially.
(d) Each of the parties hereto accepts, for itself and in
connection with its properties, generally and unconditionally, the non-
exclusive jurisdiction relating to any arbitration proceedings
conducted under the Arbitration Rules in North Carolina and irrevocably
agrees to be bound by any final judgment rendered thereby in connection
with this Credit Agreement from which no appeal has been taken or is
available.
10.15 Consent to Jurisdiction and Service of Process.
----------------------------------------------
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Credit Agreement, any Note or any of the
other Credit Documents may be brought in the courts of the State of North
Carolina in Mecklenburg County or of the United States for the Western
District of North Carolina and, by execution and delivery of this Credit
Agreement, each of the Borrower and the other Credit Parties accepts, for
itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts and irrevocably
agrees to be bound by any final judgment rendered thereby in connection with
this Credit Agreement, any Note or any other Credit Document from which no
appeal has been taken or is available. Each of the Borrower and the other
Credit Parties irrevocably agrees that all service of process in any such
proceedings in any such court may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to it at its address set forth in Section 10.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by each of the
Borrower and the other Credit Parties to be effective and binding service in
every respect. Each of the Borrower, the Administrative Agent and the
Lenders irrevocably waives any objection, including, without limitation, any
objection to the laying of venue based on the grounds of forum non
conveniens which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein shall affect
any right that any party hereto may have to serve process in any other
manner permitted by law or shall limit the right of any Lender to bring
proceedings against the Borrower or the other Credit Parties in the court of
any other jurisdiction.
10.16 Confidentiality.
---------------
The Administrative Agent and each of the Lenders agrees that it will
use its best efforts not to disclose without the prior consent of the
Borrower (other than to its employees, affiliates, auditors or counsel or to
another Lender) any information with respect to the Borrower and its
Subsidiaries which is furnished pursuant to this Credit Agreement, any other
Credit Document or any documents contemplated by or referred to herein or
therein and which is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such
information is not public, except that any Lender may disclose any such
information (a) as has become generally available to the public other than
by a breach of this Section 10.16, (b) as may be required or appropriate in
any report, statement or testimony submitted to any municipal, state or
federal regulatory body having or claiming to have jurisdiction over such
Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or the OCC or the NAIC or similar organizations (whether in the
United States or elsewhere) or their successors, (c) as may be required or
appropriate in response to any summons or subpoena or any law, order,
regulation or ruling applicable to such Lender; provided, that the
Administrative Agent shall provide written notice thereof to the Borrower
prior to such disclosure, (d) to any prospective Participant or assignee in
connection with any contemplated transfer pursuant to Section 10.6; provided
that such prospective transferee shall have been made aware of this Section
10.16, (e) to any actual or prospective counterparty (or its advisors) to
any Hedging Agreement relating to a Credit Party and its obligations;
provided that such prospective transferee shall have agreed to be bound by
the confidentiality provisions set forth in this Section, (f) to Gold Sheets
and other similar bank trade publications, such information to consist of
deal terms and other information regarding the credit facilities evidenced
by this Credit Agreement customarily found in such publications or (g) in
connection with any suit, action or proceeding for the purpose of defending
itself, reducing its liability, or protecting or exercising any of its
claims, rights, remedies or interests under or in connection with the Credit
Documents or any Hedging Agreement entered into with a Hedging Agreement
Provider.
10.17 Acknowledgments.
---------------
The Borrower and the other Credit Parties each hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any other Credit Party arising
out of or in connection with this Credit Agreement and the relationship
between Administrative Agent and Lenders, on one hand, and the Borrower and
the other Credit Parties, on the other hand, in connection herewith is
solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrower
and the Lenders.
10.18 Waivers of Jury Trial.
---------------------
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date
first above written.
BORROWER: XXXX XXXXX & ASSOCIATES, INC.,
-------- a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
---------------------
Title: Treasurer & CFO
---------------------
GUARANTORS: XXXX XXXXX SOFTWARE/COMMLINK, L.P.,
---------- a Texas limited partnership
By: Xxxx Xxxxx & Associates, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
---------------------
Title: Treasurer & CFO
---------------------
XXXX XXXXX SYSTEMS, L.P.,
a Texas limited partnership
By: Xxxx Xxxxx & Associates, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
---------------------
Title: Treasurer & CFO
---------------------
XXXX XXXXX SERVICES, L.P.,
a Texas limited partnership
By: Xxxx Xxxxx & Associates, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
---------------------
Title: Treasurer & CFO
---------------------
SYMITAR SYSTEMS, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
---------------------
Title: Treasurer
---------------------
--------------------
LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
------- individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxx, CFA
---------------------
Title: Vice President
---------------------
FLEET NATIONAL BANK,
as a Lender
By: /s/ R. E. Xxxxxxxx
--------------------
Name: R. E. Xxxxxxxx
---------------------
Title: Managing Director
---------------------
JPMORGAN CHASE BANK, N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
---------------------
Title: Vice President
---------------------
COMMERCE BANK, N.A.,
as a Lender
By: /s/ Xxx XxXxxxxx
---------------------
Name: Xxx XxXxxxxx
---------------------
Title: Senior Vice President
---------------------
UMB BANK, N.A.,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
---------------------
Title: Senior Vice President
---------------------
