AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD.
and
VERMONT PURE SPRINGS, INC.,
jointly and severally, the Borrowers,
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Lender and Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I ..... DEFINITIONS ............................................. 1
SECTION 1.1 ... Definitions ............................................. 1
SECTION 1.2 ... General ................................................. 15
SECTION 1.3 ... Other Definitions and Provisions ........................ 15
ARTICLE II .... REVOLVING CREDIT FACILITY ............................... 15
SECTION 2.1 ... Revolving Credit Loans .................................. 15
SECTION 2.2 ... Procedure for Advances of Revolving Credit Loans ........ 15
SECTION 2.3 ... Repayment of Loans ...................................... 16
SECTION 2.4 ... Notes ................................................... 17
SECTION 2.5 ... Permanent Reduction of the Aggregate Commitment ......... 17
SECTION 2.6 ... Termination of Credit Facility .......................... 18
SECTION 2.7 ... Use of Proceeds ......................................... 18
ARTICLE III ... LETTER OF CREDIT FACILITY ............................... 18
SECTION 3.1 ... L/C Commitment .......................................... 18
SECTION 3.2 ... Procedure for Issuance of Letters of Credit ............. 19
SECTION 3.3 ... Commissions and Other Charges ........................... 19
SECTION 3.4 ... L/C Participations ...................................... 19
SECTION 3.5 ... Reimbursement Obligation of the Borrowers ............... 20
SECTION 3.6 ... Obligations Absolute .................................... 21
SECTION 3.7 ... Effect of Application ................................... 22
ARTICLE IV .... GENERAL LOAN PROVISIONS ................................. 22
SECTION 4.1 ... Interest ................................................ 22
SECTION 4.2 ... Notice and Manner of Conversion or Continuation of Loans 24
SECTION 4.3 ... Fees .................................................... 25
SECTION 4.4 ... Manner of Payment ....................................... 25
SECTION 4.5 ... Crediting of Payments and Proceeds ...................... 26
SECTION 4.6 ... Adjustments ............................................. 26
SECTION 4.7 ... Nature of Obligations of Lenders Regarding Extensions
of Credit; Assumption by the Administrative Agent ....... 27
SECTION 4.8 ... Changed Circumstances ................................... 27
SECTION 4.9 ... Indemnity ............................................... 29
SECTION 4.10 .. Capital Requirements .................................... 29
SECTION 4.11 .. Taxes ................................................... 30
SECTION 4.12 .. Security ................................................ 31
ARTICLE V ..... CLOSING; CONDITIONS OF CLOSING AND BORROWING ............ 31
SECTION 5.1 ... Closing ................................................. 32
SECTION 5.2 ... Conditions to Closing and Initial Extensions of Credit .. 32
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SECTION 5.3 ... Conditions to All Extensions of Credit .................. 36
ARTICLE VI .... REPRESENTATIONS AND WARRANTIES OF THE BORROWERS ......... 37
SECTION 6.1 ... Representations and Warranties .......................... 37
SECTION 6.2 ... Survival of Representations and Warranties, Etc ......... 44
ARTICLE VII ... FINANCIAL INFORMATION AND NOTICES ....................... 44
SECTION 7.1 ... Financial Statements and Projections .................... 44
SECTION 7.2 ... Officer's Compliance Certificate ........................ 45
SECTION 7.3 ... Accountants' Certificate ................................ 45
SECTION 7.4 ... Other Reports ........................................... 46
SECTION 7.5 ... Notice of Litigation and Other Matters .................. 46
SECTION 7.6 ... Accuracy of Information ................................. 47
ARTICLE VIII .. AFFIRMATIVE COVENANTS ................................... 47
SECTION 8.1 ... Preservation of Corporate Existence and Related Matters . 47
SECTION 8.2 ... Maintenance of Property ................................. 48
SECTION 8.3 ... Insurance ............................................... 48
SECTION 8.4 ... Accounting Methods and Financial Records ................ 48
SECTION 8.5 ... Payment and Performance of Obligations .................. 48
SECTION 8.6 ... Compliance With Laws and Approvals ...................... 48
SECTION 8.7 ... Environmental Laws ...................................... 48
SECTION 8.8 ... Compliance with ERISA ................................... 49
SECTION 8.9 ... Compliance With Agreements .............................. 49
SECTION 8.10 .. Conduct of Business ..................................... 49
SECTION 8.11 .. Visits and Inspections .................................. 49
SECTION 8.12 .. Additional Subsidiaries ................................. 50
SECTION 8.13 .. Hedging Agreement ....................................... 50
SECTION 8.15 .. Further Assurances ...................................... 50
ARTICLE IX .... FINANCIAL COVENANTS ..................................... 50
SECTION 9.1 ... Leverage Ratio .......................................... 51
SECTION 9.2 ... Fixed Charge Coverage Ratio ............................. 51
SECTION 9.3 ... Interest Coverage Ratio ................................. 51
SECTION 9.4 ... Minimum Net Worth ....................................... 51
ARTICLE X ..... NEGATIVE COVENANTS ...................................... 52
SECTION 10.1 .. Limitations on Debt ..................................... 52
SECTION 10.2 .. Limitations on Guaranty Obligations ..................... 52
SECTION 10.3 .. Limitations on Liens .................................... 52
SECTION 10.4 .. Limitations on Loans, Advances, Investments
and Acquisitions ........................................ 53
SECTION 10.5 .. Limitations on Mergers and Liquidation .................. 55
SECTION 10.6 .. Limitations on Sale of Assets ........................... 56
SECTION 10.7 .. Limitations on Dividends and Distributions .............. 56
SECTION 10.8 .. Limitations on Exchange and Issuance of Capital Stock ... 56
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SECTION 10.9 .. Transactions with Affiliates ............................ 56
SECTION 10.10 . Certain Accounting Changes .............................. 57
SECTION 10.11 . Amendments; Payments and Prepayments of Subordinated Debt 57
SECTION 10.12 . Restrictive Agreements .................................. 57
SECTION 10.13 . Capital Expenditures .................................... 57
ARTICLE XI .... DEFAULT AND REMEDIES .................................... 57
SECTION 11.1 .. Events of Default ....................................... 57
SECTION 11.2 .. Remedies ................................................ 60
SECTION 11.3 .. Default Remedies ........................................ 60
SECTION 11.4 .. Rights and Remedies Cumulative; Non-Waiver; etc ......... 61
ARTICLE XII ... THE ADMINISTRATIVE AGENT ................................ 61
SECTION 12.1 .. Appointment ............................................. 61
SECTION 12.2 .. Delegation of Duties .................................... 61
SECTION 12.3 .. Exculpatory Provisions .................................. 62
SECTION 12.4 .. Reliance by the Administrative Agent .................... 62
SECTION 12.5 .. Notice of Default ....................................... 62
SECTION 12.6 .. Non-Reliance on the Administrative Agent and Other Lenders 63
SECTION 12.7 .. Indemnification ......................................... 63
SECTION 12.8 .. The Administrative Agent in Its Individual Capacity ..... 64
SECTION 12.9 .. Resignation of the Administrative Agent: Successor
Administrative Agent ............................... 64
ARTICLE XIII .. MISCELLANEOUS ........................................... 65
SECTION 13.1 .. Notices ................................................. 65
SECTION 13.2 .. Expenses; Indemnity ..................................... 66
SECTION 13.3 .. Set-off ................................................. 66
SECTION 13.4 .. Governing Law ........................................... 67
SECTION 13.5 .. Consent to Jurisdiction ................................. 67
SECTION 13.6 .. Binding Arbitration; Waiver of Jury Trial ............... 67
SECTION 13.7 .. Reversal of Payments .................................... 68
SECTION 13.8 .. Injunctive Relief, Punitive Damages ..................... 69
SECTION 13.9 .. Accounting Matters ...................................... 69
SECTION 13.10 . Successors and Assigns; Participations .................. 69
SECTION 13.11 . Amendments, Waivers and Consents ........................ 72
SECTION 13.12 . Performance of Duties ................................... 72
SECTION 13.13 . All Powers Coupled with Interest ........................ 73
SECTION 13.14 . Survival of Indemnities ................................. 73
SECTION 13.15 . Titles and Captions ..................................... 73
SECTION 13.16 . Severability of Provisions .............................. 73
SECTION 13.17 . Counterparts ............................................ 73
SECTION 13.18 . Term of Agreement ....................................... 73
SECTION 13.19 . Inconsistencies with Other Documents; Independent
Effect of Covenants ..................................... 73
SECTION 13.20 . Amendment and Restatement ............................... 74
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EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Certificate
Exhibit G - Form of Assignment and Acceptance
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1 (a) - Jurisdictions of Organization and Qualification
Schedule 6.l(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(1) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
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THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of the 28th day of
January, 2000, by and among VERMONT PURE HOLDINGS, LTD., a Delaware business
corporation, VERMONT PURE SPRINGS, INC., a Delaware business corporation,
(herein, the foregoing shall be referred to collectively, jointly and severally
as the "Borrowers"), the Lenders whose signatures appear on the signature pages
hereto (the "Lenders"), and FIRST UNION NATIONAL BANK, a national bank ("First
Union") as a Lender and as Administrative Agent for the Lenders
RECITALS
A. The Borrowers and First Union had previously entered into, and are
currently parties to, that certain Loan and Security Agreement, dated as of
April 8, 1998 (the "Original Agreement"), whereby First Union agreed to extend
certain credit to the Borrowers, including a revolving working capital line of
credit in the amount up to Three Million and 00/100 Dollars ($3,000,000.00) and
a facility in the amount of up to Fifteen Million Dollars ($15,000,000) to
finance the acquisition of certain types of assets and business operations by
the Borrowers.
B. The Borrowers desire to increase the amount of credit available to them
under the Original Agreement, and to amend and restate the Original Agreement as
provided herein, including consolidating the current working capital line of
credit and acquisition facility for borrowing purposes.
C. The Borrowers have applied to The Vermont Economic Development Authority
for the issuance of certain industrial revenue bonds, the proceeds of which
would be to finance a 38,000 square foot expansion of the existing manufacturing
and warehouse facility of Borrowers located at Catamount Industrial Park on
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as well as to facilitate the purchase and
installation of equipment and bottling lines at such location (the "Bond
Transaction"). It is anticipated that, under the Revolving Credit Facility
provided for in this Credit Agreement, a direct pay letter of credit in the
approximate amount of Four Million Three Hundred Thousand and 00/100 Dollars
($4,300,000.00) will be issued by the Administrative Agent, on behalf of the
Lenders, in connection with such Bond Transaction.
D. First Union and the other Lenders hereto, desire to enter into this
Amended and Restated Credit Agreement, on the terms and conditions provided
herein. NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this Agreement
shall have the meanings assigned to them below:
"Acquisition" means the purchase by the Borrowers of all or a portion of
the assets, stock or other equity interests of any Person.
"Acquisition Documents" means in connection with any Permitted Acquisition,
any asset purchase agreement or similar agreement, and all other documents
entered into or delivered in connection with any Permitted Acquisition.
"Adjusted Cash Flow" means, for the seller in any Permitted Acquisition,
Cash Flow plus all non-recurring seller's salaries, bonuses, withdrawals and
other non-recurring expenses.
"Administrative Agent" means First Union in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other than
a Subsidiary) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person or any of their Subsidiaries. The term "control" means (a) the power to
vote five percent (5%) or more of the securities or other equity interests of a
Person having ordinary voting power, or (b) the possession, directly or
indirectly, of any other power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Twenty-Five Million and 00/100 Dollars
($25,000,000.00).
"Agreement" means this Amended and Restated Credit Agreement, as the same
may, from time to time, be amended, restated or otherwise modified.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application submitted by the Borrowers in the form
specified by the Issuing Lender, from time to time, requesting the Issuing
Lender to issue a Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Available Commitment" means, as to any Lender at any time, an amount equal
to (a) such Lender's Commitment less (b) such Lender's Extensions of Credit.
"Bond Transaction" shall have the meaning given to that term in the
Recitals.
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"Base Rate" means, at any time, the higher of (a) the Prime Rate, and (b)
the Federal Funds Rate plus 1/2 of 1%. Each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon the
Base Rate, as provided in Section 4.1.
"Borrowers" means, unless the context requires otherwise, collectively,
jointly and severally, Vermont Pure Holdings, Ltd., and Vermont Pure Springs,
Inc., together with their permitted successors and assigns, including any
trustees or receivers in any bankruptcy proceedings.
"Business Day" means (a) for all purposes other than as set forth in clause
(b) below, any day other than a Saturday, Sunday, legal holiday, or day on which
banks and lending institutions in Charlotte, North Carolina or New York, New
York are authorized or directed by governmental or executive order to close for
business, and (b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, any LIBOR Rate Loan, any day
that is a Business Day described in clause (a) and that is also a day for
trading by and between banks in Dollar deposits in the London interbank market.
"Capital Asset" means, with respect to the Borrowers and their
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the
Borrowers and their Subsidiaries.
"Capital Expenditures" means expenditures for any fixed assets or
improvements, replacements, substitutions or additions thereto which have a
useful life of more than one year, including assets acquired pursuant to any
Capital Lease.
"Capital Lease" means any lease for property, real, personal or mixed,
under which such Person is the lessee and which, in accordance with GAAP, such
Lease is or should be capitalized on the books of such Person.
"Cash Flow" means, for the applicable immediately preceding rolling four
(4) quarters, the sum of the following, determined on a Consolidated basis,
without duplication, for the Borrowers and their Subsidiaries: (a) net income
for the applicable immediately preceding period, plus (b) the sum of (i)
Interest Expense, (ii) depreciation and amortization, and (iii) provision for
income tax expenses, in all of the foregoing cases without adjustment for
extraordinary gains or losses.
"Change of Control" means the occurrence of an event such that, or the
entering into an agreement whereby, any Person or two or more Persons acting in
concert shall have (i) acquired beneficial ownership (within the meaning of
Rules 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 49% of the fully diluted common stock of the
Borrowers, or (ii) acquired voting control of the fully diluted common stock of
the Borrowers or of the board of directors.
"Closing Date" means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied or waived
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in all respects in a manner acceptable to the Administrative Agent, in its sole
discretion; provided, however, in no event shall the Closing Date be later than
January 31, 2000.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, as amended, supplemented or otherwise modified from time
to time.
"Collateral" means all property and assets of the Borrowers which are now
or hereafter pledged to the Administrative Agent, for the ratable benefit of the
Lenders as security for the payment and performance of the Obligations, pursuant
to any Security Document.
"Collateral Assignments" means those certain collateral assignment
agreements previously executed in favor of First Union, as amended by those
certain modification agreements executed of even date herewith, whereby the
Borrowers pledge (and confirm their prior pledge of) to the Administrative
Agent, for the ratable benefit of Administrative Agent (in its individual
capacity as a Lender) and the other Lenders, as security for the Obligations,
the Borrowers' respective interests in all of their water and mineral rights,
contracts, licenses, trademarks, trade names, leaseholds, general intangibles,
intellectual property, landlord waivers, estoppel agreements, and
non-disturbance agreements, as any of the foregoing may from time to time be
amended, restated or modified.
"Commitment" means, as to any Lender, the obligation of such Lender to make
Loans to and issue or participate in Letters of Credit issued for the account of
the Borrowers hereunder in an aggregate principal or face amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule 1 hereto, as the same obligations and commitments may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrowers and their Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Credit Facility" means the collective reference to the Revolving Credit
Facility and the L/C Facility.
"Current Maturities" means such portion of Funded Debt which was paid
pursuant to a contractual obligation to so pay such debt over the most recent
rolling four (4) quarters.
"Debt" means, with respect to the Borrowers and their Subsidiaries at any
date and without duplication, the sum of the following, calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness including but not
limited to obligations evidenced by bonds, debentures, notes or other similar
instruments of any such Person, (b) all obligations to pay the deferred purchase
price of property or services of any such Person, except trade payables arising
in the ordinary course of business, (c) all obligations of any such Person as
lessee under Capital Leases, (d) all debt of any other Person secured by a Lien
on any asset of any such Person, (e) all Guaranty Obligations of any such
Person, (f) all obligations, contingent or otherwise, of any such Person
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relative to the face amount of letters of credit, whether or not drawn,
including without limitation any Reimbursement Obligation, and banker's
acceptances issued for the account of any such Person, (g) all obligations of
any such Person to redeem, repurchase, exchange, defease or otherwise make
payments in respect of capital stock or other securities of such Person, and (h)
all obligations incurred by any such Person pursuant to Hedging Agreements.
"Default" means any of the events specified in Section 11.1 which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"Default Rate" means a rate of interest equal to the Base Rate plus three
percent (3%) per annum. "Dollars" or "$" means, unless otherwise qualified,
dollars in lawful currency of the United States.
"Eligible Assignee" means, with respect to any assignment 'of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger, operation of law, or otherwise) to all
or substantially all of the commercial lending business of the assigning Lender,
or (f) any other Person that has been approved in writing, as an Eligible
Assignee by the Borrowers and the Administrative Agent; provided, further, all
such entities shall comply, or shall have complied, with the provisions of
Section 13.10 herein.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrowers
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of the Borrowers or any current or former
ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended, supplemented or otherwise
modified.
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"ERISA Affiliate" means any Person who together with the Borrowers is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"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 or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City. "Event of Default"
means any of the events specified in Section 11.1, provided that any requirement
for passage of time, giving of notice, or any other condition, has been
satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount equal
to the sum of (a) the aggregate principal amount of all Revolving Credit Loans
made by such Lender then outstanding, plus (b) such Lender's Commitment
Percentage of the L/C Obligations then outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Philadelphia time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"First Union" means First Union National Bank, a national banking
association, and its predecessors (including CoreStates Bank, N.A.), successors
and assigns.
"Fiscal Year" means the fiscal year of the Borrowers and their Subsidiaries
ending on October 31 of each year.
"Fixed Charges" means the sum of: (a) Interest Expense paid in cash, (b)
Current Maturities, and (c) income taxes paid in cash.
"Fixed Charge Coverage" means the ratio of: (a) Cash Flow minus
non-financed Capital Expenditures to (b) Fixed Charges, as calculated on a
rolling four (4) quarter basis.
"Funded Debt" means, on a consolidated basis and without duplication:
(a) All items which should in conformity with GAAP be classified as
indebtedness for borrowed money and as such should be included on the
balance sheet of Borrowers, including without limitation, (i)
obligations under the Revolving Credit Notes, (ii) indebtedness,
obligations and liabilities for borrowed money or for the
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deferred purchase price of property, (iii) Capital Leases, (iv) all
indebtedness, obligations and liabilities secured by any lien,
mortgage, charge, encumbrance or security interest on any property
owned by Borrowers even though it has not assumed or otherwise become
liable for the payment thereof; and (v) Permitted seller Notes; but
excluding Subordinated Debt.
(b) All guarantees (whether by discount or otherwise), endorsements (other
than for collection or deposit in the ordinary course of Borrowers'
business) and other contingent obligations of Borrowers in respect of,
or to purchase or otherwise acquire or become liable upon,
indebtedness, obligations or liabilities of others, including without
limitation, surety bonds;
(c) All obligations or liabilities of Borrowers under or pursuant to any
letter of credit, surety Bonds or similar obligations.
"GAAP" means generally accepted accounting principles, as recognized by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained on a consistent basis for
the Borrowers and their Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrowers and their
Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, with respect to the Borrowers and their
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed or become surety for any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise of any such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation for the payment thereof, or to protect such obligee against
loss in respect thereof (in whole or in part); provided that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of Borrowers' business.
"Hazardous Materials" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Applicable Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
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Authority, (c) the presence of which require investigation or remediation under
any Applicable Law, (d) the discharge or emission or release of which requires a
permit or license under any Applicable Law or other Governmental Approval, (e)
which are deemed to constitute a nuisance, a trespass or pose a health or safety
hazard to persons or neighboring properties, (f) which consist of underground or
aboveground storage tanks, whether empty, filled or partially filled with any
substance, or (g) which contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic
gas.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrowers, and any confirming letter
executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Intangibles" means as of the date of any determination thereof the total
amount of goodwill, patents, trade names, trademarks, copyrights, franchises,
experimental expense, organization expense, unamortized debt discount and
expense, the excess of cost of shares acquired over book value of related assets
and such other assets as are properly classified as "intangible assets" of the
Borrowers determined in accordance with GAAP.
"Interest Coverage" means the ratio of: (a) the Borrowers' Cash Flow to (b)
the Borrowers' Interest Expense, calculated on a rolling four (4) quarter basis.
"Interest Expense" means interest expense paid in cash on account of Funded
Debt.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Investment" means any loan or advance to, or purchase or acquisition of
the securities or obligations of, any Person or the assumption of any liability
of another Person which, in each case, did not arise from sales to such Person
in the ordinary course of business.
"Issuing Lender" means First Union, in its capacity as issuer of any Letter
of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Five Million and 00/100 Dollars
($5,000,000.00) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant to
Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then issued and outstanding
Letters of Credit (including all Obligations owing in connection with any Letter
of Credit issued in connection with the Bond Transaction) and (b) the aggregate
amount of drawings under Letters of Credit which have not then been reimbursed
pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders other
than the Issuing Lender.
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"Lender" means each Person executing this Agreement as a Lender set forth
on the signature pages hereto and each Person that hereafter becomes a party to
this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans. "Letter(s)
of Credit" shall have the meaning assigned thereto in Section 3.1.
"LIBOR" means the rate of interest per annum determined on the basis of the
rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest one-sixteenth of one percent (1/16%)). If, for any
reason, such rate does not appear on Telerate Page 3750, then "LIBOR" shall be
determined by the Administrative Agent to be the arithmetic average (rounded
upward, if necessary, to the nearest one-sixteenth of one percent (1/16%)) of
the rate per annum at which deposits in Dollars would be offered by first class
banks in the London interbank market to the Administrative Agent approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan as indicated on
Borrowers' Notice of Borrowing.
"LIBOR Rate" means an interest rate per annum equal to LIBOR plus the
Applicable Margin.
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon the
LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease or other title
retention agreement relating to such asset.
"Loans" means the collective reference to the Revolving Credit Loans and
"Loan" means any of such Loans.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, any Hedging Agreement with any Lender (which such Hedging
Agreement is permitted or required hereunder), the Security Documents, the
Surety Agreements, all agreements, documents and instruments executed with and
delivered to any Lender in connection with the Bond Transaction, and each other
financing statement, stock power, document, instrument, certificate and
agreement executed and delivered by the Borrowers, their Subsidiaries or their
counsel in connection with this Agreement or otherwise referred to herein or
contemplated hereby, all as may be amended, restated or otherwise modified.
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"Material Adverse Effect" means, with respect to the Borrowers or any of
their Subsidiaries, a material adverse effect on the properties, assets,
business, prospects, operations or condition (financial or otherwise) of any
such Person or the ability of any such Person to perform its obligations under
the Loan Documents or Material Contracts to which it is a party.
"Material Contract" means (a) any contract or other agreement, written or
oral, of the Borrowers or any of their Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $250,000 per annum, or (b)
any other contract or agreement, written or oral, of the Borrowers or any of
their Subsidiaries the failure to comply with which could reasonably be expected
to have a Material Adverse Effect.
"Mortgage" means that certain Mortgage Deed, Security Agreement and
Financing Statement Agreement of even date executed in favor of the
Administrative Agent, for the ratable benefit of Administrative Agent (in its
individual capacity as a Lender) and the other Lenders, pursuant to which
Vermont Pure Springs, Inc. grants a security interest and mortgage upon all of
its respective real property, subject only to permitted liens consented to by
and disclosed to Administrative Agent, as of such mortgage may, from time to
time, be amended, restated or modified.
"Multiemployer Plan" means a "'multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrowers or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six years.
"Net Worth" means, at any time, the total net worth of the Borrowers,
determined on a consolidated basis, without duplications, minus: (i) all loans
and advances to shareholders and (ii) guarantees of indebtedness of
shareholders, all as determined in accordance with GAAP.
"Notes" means the collective reference to the Revolving Credit Notes and
"Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto in
Section 2.3(b).
"Notice of Borrowing" shall have the meaning, assigned thereto in Section
2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned thereto
in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in Section
2.3(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing,
after the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all payment and other obligations owing by the Borrowers to any
Lender or the Administrative Agent under any Hedging Agreement with any Lender
(which such Hedging Agreement is permitted or required hereunder), (d) any
payment and other obligations owing by the Borrowers to any Lender or the
Administrative Agent pursuant to the Bond Transaction, and (e) all other fees
and commissions (including attorney's fees), charges, indebtedness, loans,
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liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrowers to the Lenders or the Administrative Agent, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, in each case under or in respect of this Agreement,
any Note, any Letter of Credit or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned thereto
in Section 7.2.
"Original Agreement" shall have the meaning given to that term in the
Recitals.
"Other Taxes" shall have the meaning assigned thereto in Section 4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for employees of the Borrowers or any ERISA
Affiliates or (b) has at any time within the preceding six years been maintained
for the employees of the Borrowers or any of their current or former ERISA
Affiliates.
"Permitted Acquisition" shall have the meaning assigned thereto in Section
10.4.
"Permitted Assumed Liabilities" means bottle deposit liabilities, Capital
Leases for vehicles and equipment, obligations for rent under operating leases,
and Permitted seller Debt.
"Permitted Seller Notes" means notes issued to sellers in connection with
any Permitted Acquisition, and issued in accordance to the conditions thereof,
which notes shall be unsecured and subordinated in right of payment to the
Borrowers' Obligations hereunder, with all of the foregoing to be in form and
substance satisfactory to each of the Lenders. Despite the subordination
provisions, Permitted Seller Notes shall be deemed to constitute Funded Debt,
not Subordinated Debt, for covenant calculation purposes.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by First Union as its Prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs. The parties hereto acknowledge that the rate
announced publicly by First Union as its Prime Rate is an index or base rate and
shall not necessarily be First Union's lowest or best rate charged to its
customers or other banks.
"Purchase Price" means the aggregate amount of cash paid, Permitted Assumed
Liabilities assumed, and Permitted Seller Notes and common stock issued, in
connection with the Borrowers' undertaking any Permitted Acquisition.
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"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, any combination of Lenders who
collectively hold at least sixty-seven percent (67%) of the aggregate unpaid
principal amount of the Notes and any L/C Obligations, or if there are no L/C
Obligations, and if no amounts are outstanding under the Notes, then the term
"Required Lenders" means any combination of Lenders whose Commitment Percentages
aggregate at least sixty-seven percent (67%).
"Responsible Officer" means any of the following: the chief executive
officer, chief operating officer, chief financial officer, president, or the
chairman of the Borrowers or any other officer of the Borrowers reasonably
acceptable to the Administrative Agent.
"Revolving Credit Facility" means the revolving credit facility established
pursuant to Article II hereof, and shall include the Revolving Credit Loans.
"Revolving Credit Loans" means, for any Lender, any revolving loan made to
the Borrowers pursuant to Section 2.1, and all such revolving loans collectively
as the context requires.
"Revolving Credit Notes" means the collective reference to the Revolving
Credit Notes made by the Borrowers payable to the order of each Lender,
substantially in the form of Exhibit A hereto, evidencing the Revolving Credit
Facility, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part; "Revolving Credit Note" means any of such Revolving Credit
Notes.
"Security Agreements" means those certain security agreements previously
executed in favor of First Union, as amended and restated by those certain
amended and restated security agreements of even date herewith by the Borrowers
and the Sureties in favor of the Administrative Agent, for the ratable benefit
of the Lenders, whereby the Borrowers and the Sureties pledge to and grant (and
confirm their prior pledge and grant) to the Administrative Agent a lien against
and security interest in all tangible and intangible assets of the Borrowers and
the Sureties, including without limitation, all now owned or hereafter acquired
inventory, equipment, deposit accounts, investment property, general
intangibles, accounts receivable, contract rights (including water and mineral
rights) and other personal property of the Borrowers and the Sureties, as any of
the foregoing may from time to time be amended, restated or modified. The
Security Agreements also includes that certain Security Agreement dated of even
date wit this Agreement executed and delivered in favor of the Administrative
Agent, for the ratable benefit of the Lenders, whereby Adirondack Coffee
Service, Inc. grants to the Administrative Agent a lien against and security
interest in all of its tangible and intangible assets including without
limitation, all now owned or hereafter acquired inventory, equipment, deposit
accounts, investment property, general intangibles, accounts receivable,
contract rights (including water and mineral rights) and all other personal
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property of Adirondack Coffee Service, Inc., as the foregoing Security Agreement
may from time to time be amended, restated or modified.
"Security Documents" means the collective reference to the Mortgage, the
Security Agreements, the Stock Pledge Agreements, the Collateral Assignments,
and each other agreement or writing pursuant to which the Borrowers , the
Sureties or any Subsidiary thereof purports to pledge or grant to Administrative
Agent or any of the Lenders a security interest in any property or assets
securing the Obligations, or any such Person purports to guaranty the payment
and/or performance of the Obligations to the Lender.
"Solvent" means, as to the Borrowers and their Subsidiaries, on a
particular date, any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"Stock Pledge Agreements" means those certain stock pledge agreements
previously executed in favor of First Union, as amended by those certain
amendment agreements of even date, by the Borrowers in favor of Administrative
Agent, for the ratable benefit of Administrative Agent (in its individual
capacity as a Lender) and the other Lenders, together with all necessary stock
powers, duly executed in blank, as any of the foregoing may from time to time be
amended, restated or modified. The Stock Pledge Agreements also includes that
certain Stock Pledge Agreement of even date, and related irrevocable stock
power, executed and delivered by Vermont Pure Springs, Inc. in favor of the
Administrative Agent, for the ratable benefit of the Lenders, granting a first
priority security interest in and lien on all of the issued and outstanding
shares of stock of Adirondack Coffee Service, Inc.
"Subordinated Debt" means indebtedness for borrowed money issued to a
Person other than a seller in a Permitted Acquisition which is unsecured and
subordinated in right of payment to the Borrowers' Obligations hereunder, with
all of the foregoing to be in form and substance satisfactory to the Lenders.
"Subsidiary" means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity is at the
time, directly or indirectly, owned by or the management is otherwise controlled
by such Person (irrespective of whether, at the time, capital stock or other
ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrowers.
"Sureties" means, unless the context requires otherwise, collectively,
jointly and severally, Excelsior Springs Water Company, Inc., a New York
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business corporation, A.M. Fridays, Inc., a New Hampshire business corporation,
and Adirondack Coffee Service, Inc., a New York corporation, together with their
permitted successors and assigns, including any trustee or receiver in any
bankruptcy proceedings.
"Surety Agreements" means those certain surety agreements previously
executed in favor of First Union, as amended and restated by those certain
amended and restated guaranty agreements of even date herewith by the Sureties
in favor of the Administrative Agent, for the ratable benefit of the Lenders,
whereby the Sureties agree to act as unlimited sureties for the repayment,
finally and in full, of all of the Obligations, as any of the foregoing may be
from time to time amended, restated or modified. The Surety Agreement also means
that certain guaranty agreement of even date herewith executed by Adirondack
Coffee Service, Inc. in favor of the Administrative Agent, the ratable benefit
of the Lenders, whereby Adirondack Coffee Service, Inc. agrees to act as
unlimited surety for the repayment, finally and in full, of all of the
Obligations, as this document may from time to time be amended, restated or
modified.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" has the meaning given to that term in Section 2.6.
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA, or (b) the withdrawal of the Borrowers or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001 (a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan, or (f) the partial or complete withdrawal of the Borrowers or any ERISA
Affiliate from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (h) any event or condition
whic results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Uniform Customs" the Uniform Customs and Practice for Documentary Credits
(1994 Revision), International Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the Commonwealth
of Pennsylvania, or, as the context requires, the Uniform Commercial Code in
effect in each state where the Collateral may at any time be located, or where
Administrative Agent may need to take action to protect the Lenders' interest in
the Collateral, as any of the foregoing may be amended, restated or otherwise
modified.
"United States" means the United States of America.
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"Wholly-Owned" means, with respect to a Subsidiary, that all of the shares
of capital stock or other ownership interests of such Subsidiary are, directly
or indirectly, owned or controlled by the Borrowers and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to "Philadelphia time" shall refer
to the applicable time of day in Philadelphia, Pennsylvania.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Revolving Credit Loans to
the Borrowers from time to time from the Closing Date through the Termination
Date as requested by the Borrowers in accordance with the terms of Section 2.2;
provided, that (a) the aggregate principal amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) shall not exceed the
Aggregate Commitment less the sum of all outstanding L/C Obligations; and (b)
the principal amount of the outstanding Revolving Credit Loans (after giving
effect to any amount requested) from any Lender to the Borrowers shall not at
any time exceed such Lender's Commitment less such Lender's Commitment
Percentage of outstanding L/C Obligations. Each Revolving Credit Loan by a
Lender shall be in a principal amount equal to the amount that such Lender's
Commitment Percentage bears to the aggregate principal amount of the Revolving
Credit Loan requested by the Borrowers on such occasion. Subject to the terms
and conditions hereof, the Borrowers may borrow, repay and reborrow Revolving
Credit Loans hereunder until the Termination Date.
SECTION 2.2 Procedure for Advances of Revolving Credit Loans.
(a) Requests for Borrowing. The Borrowers shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as Exhibit B
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(a "Notice of Borrowing") not later than 11:00 a.m. (Philadelphia time): (i) on
the same Business Day of the proposed advance, if the Loan is to bear interest
at the Base Rate; and (ii) at least three (3) Business Days before the day of
the proposed advance, if the Loan is to bear interest at the LIBOR Rate, in
either case specifying (A) the date of such borrowing, which shall be a Business
Day and shall conform to the time requirements listed above, (B) the amount of
such borrowing, which (x) if the advance is to accrue interest at the LIBOR
Rate, shall be in a minimum amount of $250,000, and multiple integrals of
$250,000 thereof, or (y) if the advance is to accrue interest at the Base Rate,
shall be in a minimum amount of $250,000, and multiple integrals of $250,000;
and (C) in the case of a LIBOR Rate Loan, the duration of the Interest Period
applicable thereto. Notices received after 11:00 a.m. (Philadelphia time) shall
be deemed received on the next Business Day. The Administrative Agent shall
promptly notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit Loans. Not later than 2:00 p.m.
(Philadelphia time) on the proposed borrowing date, each Lender will make
available to the Administrative Agent, at the office of the Administrative
Agent, for the account of the Borrowers, and in funds immediately available,
such Lender's Commitment Percentage of the Revolving Credit Loans to be made on
such borrowing date. The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.2 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Borrowers identified in the
most recent notice delivered by the Borrowers to the Administrative Agent, each
such notice shall be substantially in the form of Exhibit C hereto (a "Notice of
Account Designation") or as otherwise agreed upon by the Borrowers and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 to
the extent that any Lender has not made available to the Administrative Agent
its Commitment Percentage of such Loan.
SECTION 2.3 Repayment of Loans.
(a) Repayment on Termination Date. On the Termination Date, the Borrowers
shall repay: (i) the outstanding principal amount of all Revolving Credit Loans,
(ii) all accrued but unpaid interest thereon, and (iii) all accrued but unpaid
costs, fees and expenses owing by the Borrowers to the Lenders or the
Administrative Agent under this Agreement. Additionally, the Borrowers shall
make such payments, or provide such cash collateral, as may be required pursuant
to this Agreement with respect to the L/C Obligations.
(b) Mandatory Repayment of Excess Loans. If at any time (i) the outstanding
principal amount of all Loans exceeds (ii) the sum of (A) Aggregate Commitment
minus (B) all outstanding L/C Obligations, the Borrowers shall repay immediately
upon notice from the Administrative Agent, by payment to the Administrative
Agent for the account of the Lenders, in immediately available funds, or shall
furnish Administrative Agent with cash collateral reasonably satisfactory to
Administrative Agent, the amount of such excess, and each such repayment shall
be applied by Administrative Agent first to the principal amount of outstanding
L/C Obligations, and second to the principal amount of outstanding Revolving
Credit Loans. Such cash collateral shall be applied in accordance with Section
11.2(b). Each such repayment shall be accompanied by any amount required to be
paid pursuant to Article IV hereof.
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(c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Loans, in whole or in part, upon (i) at least three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans, and (ii) one (1) Business Day irrevocable notice with respect to Base
Rate Loans (each such notice shall be substantially in the form of Exhibit D
attached hereto) (each, a "Notice of Prepayment") specifying the date and amount
of repayment and whether the repayment is of LIBOR Rate Loans, Base Rate Loans
or a combination thereof, and, if of a combination thereof, the amount allocable
to each. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender of the terms and conditions regarding prepayment. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date set forth in such notice. Partial repayments shall be in an aggregate
amount of $250,000 or a whole multiple of $250,000 in excess thereo with respect
to Base Rate Loans and $250,000 or a whole multiple of $250,000 in excess
thereof with respect to LIBOR Rate Loans. Each such repayment shall be
accompanied by any amount required to be paid pursuant to Article IV hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Article IV hereof.
SECTION 2.4 Notes.
Revolving Credit Notes. Each Lender's Revolving Credit Loans and the
obligation of the Borrowers to repay such Revolving Credit Loans shall be
evidenced by a separate Revolving Credit Note executed by the Borrowers payable
to the order of such Lender representing the Borrowers' obligation to pay such
Lender's Commitment plus interest and all other fees, charges and other amounts
due thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 4.1.
SECTION 2.5 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrowers shall have the right at any time and
from time to time, upon at least five (5) Business Days' prior written notice to
the Administrative Agent, to permanently reduce, without premium or penalty
(except for those costs and fees enumerated in Article IV hereof with respect to
LIBOR Rate Loans), (i) the entire Aggregate Commitment at any time or (ii)
portions of the Aggregate Commitment, from time to time, in an aggregate
principal amount not less than $500,000 or any whole multiple of $500,000 in
excess thereof.
(b) Conditions. Each permanent reduction permitted pursuant to this Section
2.6 shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Extensions of Credit of the Lenders after such reduction
to the Aggregate Commitment as so reduced, and if the Aggregate Commitment as so
reduced is less than the aggregate amount of all outstanding L/C Obligations,
the Borrowers shall be required to deposit in a cash collateral account opened
by the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit, together with an amount equal to all
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outstanding draws under all Letters of Credit, which have not been reimbursed
pursuant to Section 3.5 herein. Any reduction of the Aggregate Commitment to
zero shall be accompanied by payment of all outstanding Obligations (and
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations, together with an amount equal to all outstanding draws under al
Letters of Credit, which have not been reimbursed pursuant to Section 3.5
herein) and shall result in the termination of the Commitments and Credit
Facility. Such cash collateral shall be applied in accordance with Section
11.2(b). If the reduction of the Aggregate Commitment requires the repayment of
any LIBOR Rate Loan, such repayment shall be accompanied by any amount required
to be paid pursuant to Article IV hereof.
SECTION 2.6 Termination of Credit Facility. The Credit Facility shall
terminate on the earliest of (a) January 31, 2005; (b) the date of termination
by the Borrowers pursuant to Section 2.6(a); (c) the occurrence of an event in
Section 11.1(j) or (k); or (d) the date of termination by the Administrative
Agent on behalf of the Lenders pursuant to Section 11.2(a) (the "Termination
Date").
SECTION 2.7 Use of Proceeds. The Borrowers shall use the proceeds hereunder
solely to finance Permitted Acquisitions, (b) for Letter of Credit issuance (up
to the L/C Commitment), (c) for Capital Expenditures, and (d) for working
capital and general corporate requirements of the Borrowers and their
Subsidiaries, including the payment of certain fees and expenses incurred in
connection with the transactions described herein.
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 3.4(a), agrees to issue standby letters of credit ("Letters of Credit")
for the account of the Borrowers on any Business Day from the Closing Date
through but not including the Termination Date in such form as may be approved
from time to time by the Issuing Lender; provided, that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after giving effect to such
issuance: (a) the L/C Obligations would exceed the L/C Commitment, or (b) the
L/C Obligations, together with the outstanding principal amount of all Revolving
Credit Loans, would exceed the Aggregate Commitment (as the same may, from time
to time, be reduced pursuant to Section 2.6 herein); or (c) the Available
Commitment of any Lender would be less than zero. Each Letter of Credit shall
(i) be denominated in Dollars in a minimum amount of $75,000, (ii) be standby or
direct pay letter of credit issued to support obligations of the Borrowers or
any of their Subsidiaries, contingent or otherwise, incurred in the ordinary
course of business, including, without limitation, any letter of credit issued
in connection with the Bond Transaction, (iii) expire on a date satisfactory to
the Issuing Lender, which date shall be no later than one (1) year from the date
of issuance as to any standby letter of credit, or, if earlier, the Termination
Date (unless otherwise agreed by the Administrative Agent), and (iv) be subject
to the Uniform Customs and, to the extent not inconsistent therewith, the laws
of the Commonwealth of Pennsylvania. The Issuing Lender shall not at any time be
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obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by any Applicable Law. References herein to "issue" and
derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrowers may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at the Administrative Agent's Office an
Application therefor, completed to the satisfaction of the Issuing Lender,
together with such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Application,
the Issuing Lender shall process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall, subject to
Section 3.1 and the terms and conditions herein, promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three (3) Business Days after its
receipt of the Application therefor and all such other certificates, documents
and other papers and information relating thereto) by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
upon by the Issuing Lender and the Borrowers. The Issuing Lender shall promptly
furnish to the Borrowers a copy of such Letter of Credit and promptly notify
each Lender of the issuance, and upon request by any Lender, furnish to such
Lender a copy of such Letter of Credit together with notification of the amount
of such Lender's L/C Participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrowers shall pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit issued, in an amount equal to applicable
percentage set forth in the definition of Applicable Margin multiplied by the
face amount of any Letter of Credit issued; provided, however, that the fee for
any Letter of Credit issued in connection with Bond Transaction shall be one and
seven eighths percent (1.875%) per annum . The determination of which fee
multiple to be used at any time shall be determined in accordance with the chart
and relevant provisions of Section 4.1 herein. Such commission shall be payable
on the date the respective Letter of Credit is issued.
(b) In addition to the foregoing commission, the Borrowers shall pay the
Administrative Agent an issuance fee equal to one-eighth of one percent (.125%)
of the face amount of each Letter of Credit, plus other applicable standard
issuance costs and expenses, payable on the date the respective Letter of Credit
is issued. These fees shall inure solely to the benefit of the Issuing Lender.
(c) The Administrative Agent shall, promptly following its receipt thereof,
and except as provided in Section 3.3(b) hereof, distribute to the Issuing
Lender and the L/C Participants all commissions and fees received by the
Administrative Agent in accordance with their respective Commitment Percentages.
SECTION 3.4 L/C Participations.
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(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk,
an undivided interest in the rights and obligations in each Letter of Credit
issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder, equal to such L/C Participant's Commitment Percentage. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender that,
if a draft is paid under any Letter of Credit for which the Issuing Lender is
not reimbursed in full by the Borrowers in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender, upon demand
from the Issuing Lender and at the Issuing Lender's address for notices
specified herein, an amount equal to such L/C Participant's Commitment
Percentage of the amount of such draft which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on or before the applicable due date. If any
such amount is paid to the Issuing Lender after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand, in addition to
such unpaid amount, the product of (i) such unpaid amount, times (ii) the daily
average Federal Funds Rate as determined by the Administrative Agent during the
period from and including the date such payment is due until the date on which
such payment is immediately available to the Issuing Lender, times (iii) the
product of the number of days that elapse during such period divided by 360. A
certificate of the Issuing Lender with respect to any amounts owing under this
Section 3.4(b) shall be conclusive in the absence of manifest error. With
respect to payment to the Issuing Lender of the unreimbursed amounts described
in this Section 3.4(b), if the L/C Participants receive notice that any such
payment is due (A) prior to 1:00 p.m. (Philadelphia time) on any Business Day,
such payment shall be due that Business Day, and (B) after 1:00 p.m.
(Philadelphia time) on any Business Day, such payment shall be due on the
following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant such L/C
Participant's Commitment Percentage of such payment in accordance with this
Section 3.4 and the Issuing Lender thereafter receives any payment related to
such Letter of Credit (whether directly from the Borrowers or otherwise, or any
payment of interest on account thereof, the Issuing Lender will distribute to
such L/C Participant its pro rata share of such payment received (based upon the
ratio that such L/C Participant's Commitment Percentage bears to the amount
received by Issuing Lender); provided, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the amount
thereof previously received.
SECTION 3.5 Reimbursement Obligation of the Borrowers. In the event of any
drawing under any Letter of Credit, the Borrowers agree to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section 3.5
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or with funds from other sources), in same day funds, the Issuing Lender on each
date on which the Issuing Lender notifies the Borrowers of the date and amount
of a draft paid under any Letter of Credit for the amount of (a) such draft so
paid and (b) any amounts referred to in Section 3.3(c) incurred by the Issuing
Lender in connection with such payment. Unless the Borrowers shall immediately
notify the Issuing Lender that the Borrowers intend to reimburse the Issuing
Lender for such drawing from other sources or funds, the Borrowers shall be
deemed to have timely given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make a Revolving Credit Loan bearing interest at the
Base Rate on such date in the amount of (a) such draft so paid and (b) an
amounts referred to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment, and the Lenders shall make a Revolving Credit Loan
bearing interest at the Base Rate in such amount, the proceeds of which shall be
applied to reimburse the Issuing Lender for the amount of the related drawing
and costs and expenses. Each Lender acknowledges and agrees that its obligation
to fund a Revolving Credit Loan in accordance with this Section 3.5 to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
Section 2.3(a) or Article VI. If the Borrowers have elected to pay the amount of
such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest at the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment is full.
SECTION 3.6 Obligations Absolute. The Borrowers' obligations under this
Article III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrowers may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit.
The Borrowers also agree with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrowers' Reimbursement Obligation under
Section 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrowers and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of Borrowers against any beneficiary of such Letter of
Credit or any suc transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender' s gross
negligence or willful misconduct. The Borrowers agree that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
the Uniform Customs and, to the extent not inconsistent therewith, the UCC shall
be binding on the Borrowers and shall not result in any liability of the Issuing
Lender to the Borrowers. The responsibility of the Issuing Lender to the
Borrowers in connection with any draft presented for payment under any Letter of
Credit shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.
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SECTION 3.7 Effect of Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article III, the provisions of this Article III shall apply.
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section 4.1
and Section 3.5 and provided no Event of Default has occurred and is continuing,
at the election of the Borrowers, the aggregate principal balance of (i) the
Revolving Credit Notes or any portion thereof shall bear interest at (A) the
Base Rate; or (B) LIBOR plus the Applicable Margin as set forth in Section
4.1(c); provided that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date. The Borrowers shall select the rate of
interest (either the Base Rate or the LIBOR Rate) and Interest Period, if
applicable, for each Loan at the time a Notice of Borrowing is given pursuant to
Section 2.3 or at the time a Notice of Conversion/Continuation is given pursuant
to Section 4.2. Each Loan or portion thereof bearing interest based on the Base
Rate shall be a "Base Rate Loan," and each Loan or portion thereof bearing
interest based on the LIBOR Rate shall be a "LIBOR Rate Loan." Any Loan or any
portion thereof as to which the Borrowers have not duly specified an interest
rate as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods/LIBOR Loans. In connection with each LIBOR Rate Loan,
the Borrowers, by giving notice at the times described in Section 4.1(a), shall
elect an interest period (each, an "Interest Period") to be applicable to such
Loan, which Interest Period shall be a period of one (1), two (2), three (3) or
six (6) months with respect to each LIBOR Rate Loan; provided that
(i) the Interest Period shall commence on the date of the advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, however, that if the application of this rule would
cause the Interest Period to extend into the next succeeding calendar month, the
Interest Period affected by this rule shall expire on the next preceding
Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
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(iv) no Interest Period shall extend beyond the Termination Date;
and
(v) there shall be no more than four (4) Interest Periods
outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in Section 4.1(a)
with respect to the Loans (the "Applicable Margin") shall be determined
according to the below referenced formula, which formula is based upon the ratio
of Funded Debt to Cash Flow, calculated (i) on the Closing Date, by reference to
the most recent Financial Statements presented by the Borrowers to the
Administrative Agent; and (ii) for each consecutive fiscal quarter thereafter,
by reference to quarterly Financial Statements and Officer's Compliance
Certificate delivered by the Borrowers to the Administrative Agent pursuant to
Sections 7.1(a) and 7.1(c) herein. The formula shall be as follows:
Ratio of Funded Applicable Margin Unused
Debt to Cash Flow for LIBOR Loans Letter of Credit Fee Commitment Fee
< 2.0 x 150 basis points 150 basis points 12.5 basis points
per annum per annum
> 2.0 x < 3.0 x 200 basis points 200 basis points 25.0 basis points
per annum per annum
per annum per annum
Administrative Agent on the first (1st) Business Day of the first (1st) month
following receipt by the Administrative Agent of the quarterly financial
statements for the Borrowers and their Subsidiaries and the accompanying
Officer's Compliance Certificate setting forth the ratio of Funded Debt to Cash
Flow of the Borrowers and their Subsidiaries as of the most recent fiscal
quarter end. Subject to Section 4.1(d), in the event the Borrowers fail to
deliver such financial statements and certificate within the time required by
Section 7.2(c) hereof, the Applicable Margin, Letter of Credit Fee, and Unused
Commitment Fee shall be the highest margin set forth above until the delivery of
such financial statements and certificate.
(d) Default Rate. Subject to Section 11.2, at the discretion of the
Administrative Agent and Required Lenders, upon the occurrence and during the
continuance of an Event of Default (provided, however, upon the occurrence of an
Event of Default in Sections 11.1(j) or 11.1(k) herein, all Obligations
hereunder shall immediately convert to and bear interest at the Default Rate),
all outstanding Loans shall bear interest at a rate per annum equal to the
Default Rate, and Borrowers shall be responsible for all "breakage" costs, fees
and expenses as provided for in Article IV herein with respect to LIBOR Rate
Loans automatically converted pursuant to this Section. Interest shall continue
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to accrue on the Notes and the outstanding but unreimbursed draws under the
Letters of Credit, after the filing, by or against the Borrowers of any petition
seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan shall
be payable in arrears on the first day of each calendar month. Interest on each
LIBOR Rate Loan shall be payable on the last day of each Interest Period
applicable thereto, and if such Interest Period extends over three (3) months,
at the end of each three (3) month interval during such Interest Period. All
interest rates, fees and commissions provided hereunder shall be computed on the
basis of a 360-day year and assessed for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest hereunder or under any of the Notes or
Obligations charged or collected by the Administrative Agent or the Lenders
pursuant to the terms of this Agreement or pursuant to any of the Notes or
Letters of Credit exceed the highest rate permissible under any Applicable Law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrowers any interest received by
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrowers no pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrowers
under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Event of Default has occurred and is then continuing, the
Borrowers shall have the option to: (a) convert at any time, following the third
Business Day after the Closing Date, all or any portion of its outstanding Base
Rate Loans in a principal amount equal to $250,000 or any whole multiple of
$250,000 in excess thereof into one or more LIBOR Rate Loans and (b) upon the
expiration of any Interest Period, (i) convert all or any part of its
outstanding LIBOR Rate Loans in a principal amount equal to $250,000 or a whole
multiple of $250,000 in excess thereof into Base Rate Loans or (ii) continue
such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrowers desire to
convert or continue Loans as provided above, the Borrowers shall give the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit E (a "Notice of Conversion/Continuation") not later than 11:00 a.m.
(Philadelphia time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective. Each Notice of
Continuation/Conversation shall specify: (A) whether the Loans are to be
continued at or converted to the LIBOR Rate or the Base Rate, and in the case of
any LIBOR Rate Loan to be converted or continued, the last day of the Interest
Period therefor, (B) the effective date of such conversion or continuation
(which shall be a Business Day), (C) the principal amount of such Loans to be
converted or continued (provided the same is in the aggregate amounts required
hereunder), and (D) the Interest Period to be applicable to such converted or
continued LIBOR Rate Loan. Failure to otherwise comply with the terms and
conditions of this section shall result in the conclusive presumption that the
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Borrowers have selected the Base Rate at the end of any Interest Period. The
Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3 Fees.
(a) Unused Commitment Fee. Commencing on the Closing Date, the Borrowers
shall pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to the rate established
in Section 4.1(c) herein, based upon the ratio of Borrowers' Funded Debt to Cash
Flow, which fee shall be calculated based upon the average daily unused portion
of the Aggregate Commitment. The commitment fee shall be payable in arrears on
the last Business Day of each quarter during the term of this Agreement,
commencing March 31, 2000, and again on the Termination Date. Such unused
commitment fee shall be distributed by the Administrative Agent to the Lenders
pro rata in accordance with each Lenders' respective Commitment Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for syndicating and administrating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent,
for Administrative Agent's account, an annual fee in the amount of Fifteen
Thousand and no/100 Dollars ($15,000), payable on the date hereof, and on the
first day of each consecutive December thereafter for the duration of this
Agreement.
(c) Letter of Credit Fee. Upon the issuance of any Letter of Credit, and
again upon the renewal of any Letter of Credit, the Borrowers shall pay to the
Administrative Agent, those Letter of Credit Fees described in Section 3.3
herein.
(d) Closing Fee. In order to compensate the Lenders for their willingness
to extend credit to the Borrowers hereunder, and in consideration of the
Lenders' standing ready to extend credit hereunder, the Borrowers shall pay the
Administrative Agent, for the account of the Lenders based upon the Lenders'
Commitment Percentage, a closing fee equal to Sixty-Two Thousand Five Hundred
and no/100 Dollars ($62,500). The fee shall be paid on the Closing Date, and
shall be deemed unconditionally earned upon the execution of this Agreement,
regardless of whether or not any credit is subsequently extended, or Letters of
Credit issued, by the Lenders by and on behalf of the Borrowers.
SECTION 4.4 Manner of Payment. Each payment by the Borrowers on account of
the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made not later than 1:00 p.m. (Philadelphia
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below) pro rata in accordance with their
respective Commitment Percentages (except as specified below), in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 2:00
p.m. (Philadelphia time) on such day shall be deemed a payment on such date for
the purposes of Section 11.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 2:00
p.m. (Philadelphia time) shall be deemed to have been made on the next
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succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share of such
payment in accordance with such Lender's Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment by the Borrowers to the Administrative Agent of the Issuing
Lender's fees or L/C Participants' commissions shall be made in like manner, but
for the account of the Issuing Lender or the L/C Participants, as the case may
be. Each payment to the Administrative Agent of Administrative Agent's fees or
expenses shall be made for the account of the Administrative Agent, and any
amount payable to any Lender under Sections 4.8, 4.9, 4.10, 4.11 or l3.2 shall
be paid to the Administrative Agent for the account of the applicable Lender.
Subject to Section 4.1(b)(ii) if any payment under this Agreement or any Note
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing any interest if payable along
with such payment.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations, and all net proceeds from the
enforcement of the Obligations shall be applied by Administrative Agent first to
all expenses then due and payable by the Borrowers hereunder, then to all
indemnity obligations then due and payable by the Borrowers hereunder, then to
all Administrative Agent's and Issuing Lender's fees then due and payable
hereunder, then to all other fees and commissions then due and payable
hereunder, then to accrued and unpaid interest on the Notes and Reimbursement
Obligations, then to any termination payments due in respect of a Hedging
Agreement with any Lender (which such Hedging Agreement is permitted or required
hereunder) (pro rata in accordance with all such amounts due), then to the
principal amount of the Notes and Reimbursement Obligation outstanding (pro rata
in accordance with all such amounts due) and then to the cash collateral account
described in Section 11.2(b) hereof to the extent of any L/C Obligations then
outstanding.
SECTION 4.6 Adjustments. If, subsequent to an Event of Default, any Lender
(a "Benefitted Lender") shall at any time: (a) receive any payment of all or
part of the Obligations owing to it, or interest thereon (outside of payments
tendered by the Administrative Agent to such Lender); or (b) receive any
collateral in respect of the Obligations owing to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender (except for permitted
discrepancies based upon the Lender's Commitment Percentage), if any, in respect
of the Obligations owing to such other Lender, or interest thereon; such
Benefited Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Extensions of Credit, 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, except
for permitted discrepancies based upon each Lender's Commitment Percentage;
provided, 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 shall be returned by the other
Lenders to such Benefited Lender to the extent of such recovery, but without
interest. The Borrowers agree that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
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(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. All of the
foregoing is expressly subject to the terms and conditions herein regarding
limitations on remedies, and enforcement thereof by the Lenders, Required
Lenders and Administrative Agent. If any Lender shall at any time prior to an
Event of Default receive any payment of money or collateral, from a party other
than the Administrative Agent, such Lender shall promptly notify Administrative
Agent of such receipt, and forthwith deliver such collateral or monies to the
Administrative Agent for the account of the Lenders.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made and
will make such portion available to the Administrative Agent on the proposed
borrowing date in accordance with Section 2.3(b), and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrowers on such
date a corresponding amount. If any Lender shall make such amount available to
Administrative Agent, on a date after such borrowing date, such Lender shall pay
to the Administrative Agent on demand an amount, until paid, equal to the
product of (a) the amount not made available by such Lender to Administrative
Agent in accordance with the terms hereof, times (b) the daily average Federal
Funds Rate during such period as determined by the Administrative Agent, times
(c) the product of (i) the number of days that elapsed from and including such
borrowing date to the date on which such amount not made available by such
Lender in accordance with the terms hereof shall have become immediately
available to the Administrative Agent, divided by (ii) 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. The above notwithstanding, if such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent from the Borrowers on demand,
together with interest thereon at the rate per annum applicable to Base Rate
Loans hereunder. The failure of any Lender to make available its Commitment
Percentage of any Loan requested by the Borrowers shall not relieve such Lender
or any other Lender of their respective obligations hereunder to make their
Commitment Percentages of such Loan available on the borrowing date. No Lender
shall be responsible for the failure of any other Lender to make its Commitment
Percentage of such Loan available on the borrowing date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If, with respect to
any Interest Period, the Administrative Agent or any Lender (after consultation
with Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via Telerate Page
3750 or offered to the Administrative Agent or such Lender for such Interest
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Period, then the Administrative Agent shall forthwith give notice thereof to the
Borrowers. Thereafter, until the Administrative Agent notifies the Borrowers
that such circumstances no longer exist, the obligation of the Lenders to make
LIBOR Rate Loans and the right of the Borrowers to convert any Loan to or
continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrowers
shall: (i) repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Rate Loans together with accrued interest
thereon, o the last day of the then current Interest Period applicable to such
LIBOR Rate Loan, or (ii) convert the then outstanding principal amount of each
such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest
Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
there shall occur the introduction of, or any change in, any Applicable Law, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or should there occur any change in the compliance by
any Lender (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of any such Authority,
central bank or comparable agency, the effect of which makes it unlawful or
impossible for any of the Lenders (or any of their respective Lending Offices)
to honor its obligations hereunder to make or maintain any LIBOR Rate Loan, such
Lender shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrowers and the other
Lenders. Thereafter, and until the Administrative Agent notifies the Borrowers
that such circumstances no longer exist, (i) the obligations of the Lenders to
make LIBOR Rate Loans and the right of the Borrowers to convert any Loan or
continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the
Borrowers may select only Base Rate Loans hereunder, and (ii) if any of the
Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of
the then current Interest Period applicable thereto, the applicable LIBOR Rate
Loan shall immediately be converted to a Base Rate Loan for the remainder of
such Interest Period.
(c) Increased Costs. If, after the date hereof, there shall occur the
introduction of, or any change in, any Applicable Law, or in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
should the compliance by any of the Lenders (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of such Authority, central bank or comparable agency:
(i) subject any of the Lenders (or any of their respective Lending
Offices) to any tax, duty or other charge with respect to any Note, Letter of
Credit or Application, or shall change the basis of taxation of payments to any
of the Lenders (or any of their respective Lending Offices) of the principal of
or interest on any Note, Letter of Credit or Application or any other amounts
due under this Agreement in respect thereof (except for changes in the rate of
tax on the overall net income of any of the Lenders or any of their respective
Lending Offices imposed by the jurisdiction in which such Lender is organized or
is or should be qualified to do business, or where such Lending Office is
located); or
(ii) impose, modify or deem applicable any reserve (including, without
limitation, any imposed by the Board of Governors of the Federal Reserve
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System), special deposit, insurance or capital or similar requirement against
assets of, deposits with or for the account of, or credit extended by any of the
Lenders (or any of their respective Lending Offices) or shall impose on any of
the Lenders (or any of their respective Lending Offices) or the foreign exchange
and interbank markets any other condition affecting any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrowers of such fact and demand compensation
from the Borrowers therefor and, within fifteen (15) days after such notice by
the Administrative Agent, the Borrowers shall pay to such Lender such additional
amount or amounts as will compensate such Lender or Lenders for such increased
cost or reduction. The Administrative Agent will promptly notify the Borrowers
of any event of which it has knowledge which will entitle such Lender to
compensation pursuant to this Section 4.8(c); provided, that the Administrative
Agent shall incu no liability whatsoever to the Lenders or the Borrowers in the
event it fails to do so. The amount of such compensation shall be determined, in
the applicable Lender's sole discretion, based upon the assumption that such
Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London
interbank market and using any reasonable attribution or averaging methods which
such Lender deems appropriate and practical. A certificate of such Lender
setting forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrowers through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
SECTION 4.9 Indemnity. The Borrowers hereby indemnify each of the Lenders
against any loss or expense which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any Loan (a) as a consequence of any failure by the Borrowers
to make any payment when due hereunder in connection with a LIBOR Rate Loan, (b)
due to any failure of the Borrowers to borrow on a date specified therefor in a
Notice of Borrowing or Notice of Continuation/Conversion or (c) due to any
payment, prepayment (whether mandatory or permissive) or conversion of any LIBOR
Rate Loan (whether mandatory or permissive) on a date other than the last day of
the Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrowers through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
SECTION 4.10 Capital Requirements. If either (a) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
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reference to the Commitments and other commitments of this type, below the rate
which the Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrowers shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction in return. A
certificate as to such amounts submitted to the Borrowers and the Administrative
Agent by such Lender, shall, in the absence of manifest error, be presumed to be
correct and binding for all purposes.
SECTION 4.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrowers
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized, or is
or should be qualified to do business, or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrowers shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable by Borrowers shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.11) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions been made, (B) the
Borrowers shall make such deductions, (C) the Borrowers shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the Borrowers shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any present
or future stamp, registration, recordation or documentary taxes or any other
similar fees or charges or excise or property taxes, levies of the United States
or any state or political subdivision thereof, or any applicable foreign
jurisdiction, which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made by Borrowers within thirty (30) days from the
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date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment by Borrowers of Taxes or Other Taxes, the Borrowers shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrowers, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrowers,
with a copy to the Administrative Agent, a Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on o before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrowers, certifying in the case of a Form
1001 or 4224 that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrowers and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other agreement of
the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 4.12 Security. The Obligations of the Borrowers shall be secured as
provided in the Security Documents.
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SECTION 5.1 Closing. The closing shall take place at the offices of
Stradley, Ronon, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., commencing at 2:00 p.m. on January 27,
2000, or on such other date as the parties hereto shall mutually agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue the initial Letter(s) of Credit is subject to the satisfaction of each
of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving Credit Notes,
the Security Documents and other Loan Documents shall be in a form and substance
satisfactory to Administrative Agent, shall have been duly authorized, executed
and delivered to the Administrative Agent by the parties thereto, shall be in
full force and effect, no Default shall exist thereunder, and the Borrowers
shall have delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officers' Certificate of the Borrowers. The Administrative Agent
shall have received a certificate from a Responsible Officer, in form and
substance satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Borrowers contained in this Agreement and
the other Loan Documents are true, correct and complete; that the Borrowers are
not in violation of any of the covenants contained in this Agreement and the
other Loan Documents; that, after giving effect to the transactions contemplated
by this Agreement, no Default or Event of Default has occurred and is
continuing; and that the Borrowers have satisfied each of the closing
conditions.
(ii) Certificate of Secretary of the Borrowers and Sureties. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of the Borrowers and the Sureties certifying as to the
incumbency and genuineness of the signature of each officer of the Borrowers and
the Sureties executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the articles of
incorporation of the Borrowers and the Sureties and all amendments thereto,
certified as of a recent date by the appropriate Governmental Authority in the
Borrowers' and the Sureties jurisdiction(s) of incorporation, (B) the bylaws of
the Borrowers and the Sureties as in effect on the date of such certifications,
(C) resolutions duly adopted by the Board of Directors of the Borrowers and the
Sureties authorizing the borrowings contemplated hereunder and the execution,
delivery and performance of this Agreement and the other Loan Documents to which
it is a party, and (D) each certificate required to be delivered pursuant to
Section 5.2(b)(iii).
(iii) Certificates of Good Standing. To the extent requested by
the Administrative Agent, the Administrative Agent shall have received long form
certificates as of a recent date of the good standing of the Borrowers and the
Sureties under the laws of Borrowers' and the Sureties' jurisdiction of
organization and each other jurisdiction where the Borrowers and the Sureties
are qualified to do business and a certificate of the relevant taxing
authorities of such jurisdictions certifying that such Person has filed required
tax returns and owes no delinquent taxes.
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(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrowers and the Sureties
addressed to the Administrative Agent and the Lenders with respect to the
Borrowers and the Sureties, the Loan Documents and such other matters as the
Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by Section
4.11(e) hereof, if any.
(c) Collateral.
(i) Filings and Recordings. All filings and recordations that are
necessary to perfect the security interests of the Lenders in the Collateral
described in the Security Documents shall have been received by the
Administrative Agent, and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that upon such filings and recordations
such security interests shall constitute valid and perfected Liens thereon,
subject only to Liens previously disclosed in writing to Administrative Agent
and approved by Administrative Agent.
(ii) Pledged Collateral. The Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
capital stock or other ownership interests pledged pursuant to the Stock Pledge
Agreements, together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof; (B) copies of all relevant
contracts, licenses, leases, and agreements assigned to Administrative Agent for
the benefit of the Lenders, pursuant to the Collateral Assignment; and (C) each
original promissory note pledged to Administrative Agent, for the benefit of the
Lenders, pursuant to the Security Documents.
(iii) Lien Search. The Administrative Agent shall have received
the results of a Lien search (including a search as to judgments, pending
litigation and tax matters) made against the Borrowers and the Sureties (and, if
applicable, the Subsidiaries) under the Uniform Commercial Code (or applicable
judicial docket) as in effect in any state or jurisdiction therein in which any
of Borrowers' and the Sureties assets are located, or where Borrowers and the
Sureties conduct any of their respective business or operations, or where any of
the Borrowers and the Sureties are incorporated or authorized to do business,
indicating among other things that the Collateral is free and clear of any Lien
except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The Administrative Agent
shall have received (i) a report from the Borrowers' independent insurance
consultant, in form and substance reasonably satisfactory to the Administrative
Agent, stating that insurance satisfying the requirements of the Loan Documents
is in effect and (ii) received certificates of insurance, evidence of payment of
all insurance premiums for the current policy year of each, and, if requested by
the Administrative Agent, copies (certified by a Responsible Officer) of
insurance policies, in the form required under the Security Documents and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent, and (iii) certificates for all such policies of insurance, showing
Administrative Agent as loss payee, without contribution by Administrative
Agent, which certificates shall provide that no modification, amendment,
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termination or cancellation of said policies shall be effective unless
Administrative Agent has been given thirty (30) days' prior written notice
thereof.
(v) Title Insurance. The Administrative Agent shall have received
a marked-up commitment for a policy of title insurance from a title insurance
company acceptable to the Administrative Agent, insuring Lenders' first priority
Liens, and showing no Liens prior to Lenders' Liens other than for ad valorem
taxes not yet due and payable, and/or Liens disclosed in writing to
Administrative Agent prior to the date hereof, and for which the Administrative
Agent has given its prior written consent to the existence of such Liens. The
final title insurance policy shall be delivered within thirty (30) days after
the Closing Date. Further, the Borrowers agree to provide or obtain any
customary affidavits and indemnities as may be required or necessary to obtain
title insurance satisfactory to the Administrative Agent.
(vi) Title Exceptions. The Administrative Agent shall have
received copies of all recorded documents creating exceptions to the title
policy referred to in Section 5.2(c)(v).
(vii) Matters Relating to Flood Hazard Properties. The
Administrative Agent shall have received a flood hazard certification from the
National Research Center, or any successor agency thereto, regarding each parcel
of real property securing any portion of the Obligations.
(viii) Surveys. The Administrative Agent shall have received
copies of as-built surveys of a recent date of each parcel of real property to
be Collateral under this Agreement, certified as of a recent date by a
registered engineer or land surveyor. Each such survey shall be accompanied by
an affidavit (a "Survey Affidavit") of an authorized signatory of the owner of
such property stating that there have been no improvements or encroachments to
the property since the date of the respective survey such that the existing
survey is no longer accurate. Such survey shall show the area of such property,
all boundaries of the land with courses and distances indicated, including chord
bearings and arc and chord distances for all curves, and shall show dimensions
and locations of all easements, private drives, roadways, and other facts
materially affecting such property, and shall show such other details as the
Administrative Agent may reasonably request, including without limitation, any
encroachment (and the extent thereof in feet and inches) onto the property, or
by any of the improvements on the property upon adjoining land or upon any
easement burdening the property; any improvements, to the extent constructed,
and the relation of the improvements by distances to the boundaries of the
property, to any easements burdening the property, and to the established
setback lines, building lines and the street lines; and if improvements are
existing, (A) a statement of the number of each type of parking space required
by applicable laws, ordinances, orders, rules, regulations, restrictive
covenants and easements affecting the improvement, and the number of each such
type of parking space provided, and (B) the locations of all utilities serving
the improvement.
(ix) Environmental Assessments. The Administrative Agent shall
have received a Phase I environmental assessment and such other environmental
reports reasonably requested by the Administrative Agent regarding each parcel
of real property which is Collateral hereunder, which assessment shall be
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conducted by an environmental engineering firm acceptable to the Administrative
Agent showing no environmental conditions or liabilities in violation of
Environmental Laws that could reasonably be expected to have a Material Adverse
Effect.
(x) Other Real Property Information. The Administrative Agent
shall have received such other certificates, documents and information as are
reasonably requested by the Lenders, including, without limitation, engineering
and structural reports, permanent certificates of occupancy and evidence of
zoning compliance, each in form and substance satisfactory to the Administrative
Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrowers shall
have obtained all necessary approvals, authorizations and consents of any Person
and of all Governmental Authorities and courts having jurisdiction with respect
to the transactions contemplated by this Agreement and the other Loan Documents.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent Consolidated financial statements of the Borrowers and
their Subsidiaries, all in form and substance satisfactory to the Administrative
Agent and dated for the period ending not earlier than July 31, 1999.
(ii) Financial Condition Certificate. The Borrowers shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer, that (A) the Borrowers and each of their Subsidiaries are
each Solvent, (B) the Borrowers' and the Sureties' payables are current and not
past due, (C) attached thereto is a pro forma balance sheet of the Borrowers and
their Subsidiaries setting forth on a pro forma basis the financial condition of
the Borrowers and their Subsidiaries on a Consolidated basis as of that date,
reflecting on a pro forma basis the effect of the transactions contemplated
herein, including all fees and expenses in connection therewith, and evidencing
compliance on a pro forma basis with the covenants contained in Articles IX and
X hereof, (D) attached thereto are the financial projections previously
delivered to the Administrative Agent representing the good faith opinions of
the Borrowers and senior management thereof as to the projected results for the
five (5) year period commencing on the date hereof; and (E) attached thereto is
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a calculation of the Applicable Margin pursuant to Section 4.1(c).
(iii) Payment at Closing; Fee Letters. The Borrowers shall have
paid the fees set forth or referenced in Section 4.3 and any other accrued and
unpaid fees or commissions due hereunder (including, without limitation, legal
fees and expenses) to the Administrative Agent and Lenders, and to any other
Person such amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in connection
with the execution, delivery, recording, filing and registration of any of the
Loan Documents. The Administrative Agent shall have received duly authorized and
executed copies of the fee letter agreement referred to in Section 4.3(c).
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrowers in accordance with Section
2.3(a), and a Notice of Account Designation specifying the account or accounts
to which the proceeds of any Loans made after the Closing Date are to be
disbursed.
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance to
the Lenders. The Lenders shall have received copies of all other instruments and
other evidence as the Lenders may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. The Borrowers shall have
delivered to the Administrative Agent such other documents, certificates and
opinions as the Administrative Agent may reasonably request, all in form and
substance satisfactory to the Administrative Agent. Additionally, Administrative
Agent (or its counsel) shall have undertaken such due diligence as the
Administrative Agent deems necessary or advisable, with the results thereof
being satisfactory to Administrative Agent and its counsel.
SECTION 5.3 Conditions to All Extensions of Credit. The obligations of the
Lenders to make any Extensions of Credit, whether on the date hereof or
hereafter, or change or convert any interest rate hereunder, is subject to the
satisfaction of the following conditions precedent on the relevant borrowing,
conversion, or issue date, as applicable:
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and correct
on: (i) the date Borrowers submit an Application, Notice of Borrowing, or Notice
of Continuation/Conversion to Administrative Agent, and (ii) on the date of such
continuation, conversation, borrowing or issuance, with the same effect as if
made on such date; provided and except for any such warranty and representation
which is not a continuing representation or warranty and which makes express
reference to an earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder (i) on the borrowing date with respect to
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such Loan or after giving effect to the Loans to be made on such date or (ii) on
the issue date with respect to such Letter of Credit or after giving affect to
such Letters of Credit on such date, or (iii) on the date Borrowers submit a
Notice of Continuation/Conversion, Notice of Borrowing, or Application.
(c) Material Adverse Effect. There shall not have occurred any
Material Adverse Effect since the later of: (i) the Closing Date, or (ii) the
latest borrowing hereunder or issuance of Letter of Credit.
(d) Notice of Borrowing, etc. The Borrowers shall submit to
Administrative Agent a Notice of Borrowing, or a Notice of
Continuation/Conversation, or an Application, as the case may be, completed in
accordance with the terms hereof, and, in the case of an Application or Notice
of Borrowing, the Borrowers shall also submit a duly executed Officer's
Compliance Certificate.
(e) Additional Documents. The Borrowers shall, in addition to and in
conjunction with any of the foregoing, submit such other documents, instruments,
opinions, information, or certificates, as the Administrative Agent may, in the
reasonable exercise of its discretion, so request.
(f) The Bond Transaction. Prior to the issuance of any Letter of
Credit in connection with the Bond Transaction, such agreements, documents,
instruments, opinions, information, certificates or other matters as the
Administrative Agent or the Lenders may require, and as are or may be customary
in connection with the issuance of such a direct pay letter of credit in
connection with industrial revenue bond financings.
ARTICLE VI
SECTION 6.1 Representations and Warranties. To induce the Administrative
Agent and Lenders to enter into this Agreement and to induce the Lenders to make
Extensions of Credit, and/or convert or continue the interest rate in effect
from time to time, the Borrowers hereby represent and warrant to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder, including, without limitation, any
Extension of Credit or continuation or conversion of an interest rate, that:
(a) Organization; Power; Qualification. Each of the Borrowers and their
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of their incorporation or formation, has the power and
authority to own their properties and to carry on their business as now being
and hereafter proposed to be conducted and are duly qualified and authorized to
do business in each jurisdiction in which the character of their properties or
the nature of their business requires such qualification and authorization. The
jurisdictions in which the Borrowers and their Subsidiaries are organized and
qualified to do business as of the Closing Date are described on Schedule
6.1(a).
(b) Ownership. Each Subsidiary of the Borrowers as of the Closing Date is
listed on Schedule 6.l(b). As of the Closing Date, the capitalization of the
Borrowers and their Subsidiaries consists of the number of shares, authorized,
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issued and outstanding, of such classes and series, with or without par value,
described on Schedule 6.1(b). All outstanding shares of the Borrowers and their
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable. The shareholders of the Subsidiaries of the Borrowers and the
number of shares owned by each as of the Closing Date are described on Schedule
6.1(b). As of the Closing Date, there are no outstanding stock purchase
warrants, subscriptions, options, securities, instruments or other rights of any
type or nature whatsoever, which are convertible into, exchangeable for or
otherwise provide for or permit the issuance or purchase of capital stock of the
Borrowers or their Subsidiaries, except as described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of the
Borrowers and their Subsidiaries has the right, power and authority and has
taken all corporate and other action necessary to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which any of the Borrowers or Subsidiaries are a party. This Agreement and
each of the other Loan Documents have been duly executed and delivered by the
duly authorized officers of the Borrowers and each of their Subsidiaries which
are a party thereto, and each such document constitutes the legal, valid and
binding obligation of the Borrowers or their Subsidiary which are a party
thereto, enforceable in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
The execution, delivery and performance by the Borrowers and their Subsidiaries
of the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the borrowings hereunder and the transactions
contemplated hereby, do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrowers or any of their Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of the Borrowers or
any of their Subsidiaries, or under any indenture, agreement or other instrument
to which such Person is a party or by which any of their properties may be
bound, or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by such Person
other than Liens arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of the Borrowers and
their Subsidiaries (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business, each of which is in full force and effect,
is final and not subject to review on appeal and is not the subject of any
pending or, to the best of Borrowers' or their Subsidiaries' knowledge,
threatened by any direct or collateral proceeding, and (ii) is in compliance
with each Governmental Approval applicable to it and in compliance with all
other material Applicable Laws relating to it or any of its respective
properties or the businesses conducted by it, as such existed on the date
hereof.
(f) Tax Returns and Payments. Each of the Borrowers and their Subsidiaries
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
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assessments and governmental charges or levies upon it and its property, income,
profits and assets which are due and payable, except where such Borrower or
Subsidiary has made adequate reserves therefor in accordance with GAAP and is
diligently and in good faith contesting such tax, lien, charge or assessment. No
Governmental Authority has asserted any Lien or other claim against the
Borrowers or Subsidiary thereof with respect to unpaid taxes which has not been
discharged or resolved, except where such Borrower or Subsidiary has made
adequate reserves therefor in accordance with GAAP and is diligently and in good
faith contesting such tax, lien, charge or assessment. The charges, accruals and
reserves on the books of the Borrowers and any of their Subsidiaries in respect
of federal, state, local and other taxes for all Fiscal Years and portions
thereof since the date of the last audit of the Borrowers and any of their
Subsidiaries by any taxing authority are in the judgment of the Borrowers
adequate, and the Borrowers do not anticipate any additional taxes or
assessments for any of such years.
(g) Intellectual Property Matters. Each of the Borrowers and their
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business. To the best of the Borrowers' knowledge, no event has
occurred which permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such rights, and neither the Borrowers nor
any Subsidiary thereof is liable to any Person for infringement under Applicable
Law with respect to any such rights as a result of its business operations.
(h) Environmental Matters
(i) The properties owned, leased or operated by the Borrowers and
their Subsidiaries, together with all properties which are the subject of any of
the Collateral Assignments (herein, the "Properties") do not now contain, and to
the best of their knowledge have not previously contained, any Hazardous
Materials in amounts or concentrations which (A) constitute or constituted a
violation of applicable Environmental Laws, or (B) could give rise to liability
under applicable Environmental Laws;
(ii) The Borrowers, each Subsidiary and such Properties and all
operations conducted in connection therewith are in compliance, and to the best
of the Borrowers' knowledge, have been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about such
Properties or such operations which could interfere with the continued operation
of such Properties or impair the fair saleable value thereof,
(iii) Neither the Borrowers nor any Subsidiary thereof has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters, Hazardous Materials, or
compliance with Environmental Laws, nor does the Borrowers or any Subsidiary
thereof have knowledge or reason to believe that any such notice will be
received or is being threatened;
(iv) To the best of the Borrowers' knowledge, Hazardous Materials
have not been transported or disposed of to or from the Properties, in violation
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of, or in a manner, or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such Properties in violation of, or
in a manner that could give rise to liability under, any applicable
Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which the Borrowers or any Subsidiary thereof is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
Borrowers, any Subsidiary or such Properties or operations; and
(vi) There has been no release, or to the best of the Borrowers'
knowledge, threat of release, of Hazardous Materials at or from the Properties,
now or, to the best of Borrowers' knowledge in the past, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrowers nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 6.1(i);
(ii) The Borrower and each ERISA Affiliate is in compliance with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section 401(b)
of the Code has not yet expired. Each Employee Benefit Plan that is intended to
be qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. No liability
has been incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan
or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate
failed to make any contributions or to pay any amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there been any event requiring disclosure under
Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in
a nonexempt prohibited transaction described in Section 406 of ERISA or Section
4975 of the Code, (b) incurred any liability to the BPGC which remains
outstanding other than the payment of premiums and there are no premium payments
which are due and unpaid, (C) failed to make a required contribution or payment
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to a Multiemployer Plan, or (D) failed to make a required installment or other
required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to
occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing
or, to the best knowledge of the Borrower after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined in
Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or
any ERISA Affiliate, (B) Pension Plan, or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in Regulation U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans or Letters
of Credit will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary thereof
is an "investment company" or a company "controlled" by an "investment company"
(as each such term is defined or used in the Investment Company Act of 1940, as
amended), and neither the Borrowers nor any Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(1) sets forth a complete and accurate
list of all Material Contracts of the Borrowers and their Subsidiaries in effect
as of the Closing Date not listed on any other Schedule hereto. Other than as
set forth in Schedule 6.1(1), each such Material Contract is, and after giving
effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. The Borrowers and their Subsidiaries have delivered to the
Administrative Agent a true and complete copy of each Material Contract required
to be listed on Schedule 6.1(1) or any other Schedule hereto.
(m) Employee Relations. Each of the Borrowers and their Subsidiaries has a
stable work force in place and is not, as of the Closing Date, party to any
collective bargaining Agreement nor has any labor union been recognized as the
representative of its employees except as set forth on Schedule 6.1(m). The
Borrowers knows of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of their
Subsidiaries.
(n) Burdensome Provisions. Neither the Borrowers nor any Subsidiary thereof
is a party, to any indenture, agreement, lease or other instrument, or subject
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to any corporate or partnership restriction, Governmental Approval or Applicable
Law which could reasonably be expected to have a Material Adverse Effect.
(o) Financial Statements. The (i) Consolidated balance sheets and audited
financial statements of the Borrowers and their Subsidiaries as of October 31,
1998, and the related statements of income and retained earnings and cash flows
for the Fiscal Years then ended, and (ii) unaudited Consolidated balance sheet
of the Borrowers and their Subsidiaries as of July 31, 1999 and related
unaudited interim statements of revenue and retained earnings, copies of which
have been furnished to the Administrative Agent and each Lender, are complete
and correct and fairly present the assets, liabilities, and financial position
of the Borrowers and their Subsidiaries as of such dates, and the results of the
operations and changes of financial position for the periods then ended. All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP. The Borrowers and their Subsidiaries
have no Debt, obligation or other unusual forward or long-term commitment which
is not fairly reflected in the foregoing financial statements or in the notes
thereto.
(p) No Material Adverse Change. Since July 31, 1999, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Borrowers and their Subsidiaries, and
no event has occurred or condition arisen that could reasonably be expected to
have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrowers and each of their Subsidiaries
will be Solvent.
(r) Titles to Properties. Each of the Borrowers and their Subsidiaries has:
(i) such title to the real property owned by it as is necessary or desirable to
the conduct of its respective business, and (ii) valid and legal title to all of
its personal property and assets, including, but not limited to, those reflected
on the balance sheets of the Borrowers and their Subsidiaries delivered pursuant
to Section 6.1(m), except that property which has been disposed of by the
Borrowers or their Subsidiaries subsequent to such date, which dispositions have
been in the ordinary course of business, pursuant to an arm's length transaction
for fair market value, or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrowers or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 10.3. No financing statement under the Uniform Commercial Code has been
filed in any state or other jurisdiction against the Borrowers or any Subsidiary
thereof, and no Borrower or Subsidiary has otherwise signed any financing or
security agreement (whether of record or not), except as permitted or noted in
Section 10.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 6.l(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrowers and their
Subsidiaries as of the Closing Date in excess of Two Thousand and 00/100 Dollars
($200,000.00). The Borrowers and their Subsidiaries have performed and are in
compliance with all of the terms of such Debt and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of default,
or event or condition which with notice or lapse of time or both would
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constitute such a default or event of default on the part of the Borrowers or
their Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrowers, threatened against or in any other way
relating adversely to or affecting the Borrowers or any Subsidiary thereof or
any of their respective properties in any court or before any arbitrator of any
kind or before or by any Governmental Authority.
(v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrowers or any Subsidiary thereof under any
Material Contract or judgment, decree or order to which the Borrowers or their
Subsidiaries is a party or by which the Borrowers or their Subsidiaries or any
of their respective properties may be bound or which would require the Borrowers
or their Subsidiaries to make any payment thereunder prior to the scheduled
maturity date therefor.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrowers or
any Subsidiary thereof and furnished to the Lenders were, at the time the same
were so furnished, complete and correct in all material respects to the extent
necessary to present the recipient with a true and accurate knowledge of the
subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by the Borrowers or any Subsidiary thereof
in connection with the negotiation, preparation or execution of this Agreement
or any of the Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of the Borrowers or their Subsidiaries or
omits or will omit to state a fact necessary in order to make the statements
contained therein not misleading. The Borrowers are not aware of any facts which
they have not disclosed in writing to the Administrative Agent having a Material
Adverse Effect, or insofar as the Borrowers can now foresee, could reasonably be
expected to have a Material Adverse Effect.
(x) Organizational Documents. The organizational documents (bylaws,
charters, articles of incorporation, limited partnership agreements, operating
agreements and any amendments thereto, etc.) of the Borrowers and their
Subsidiaries, presented to the Administrative Agent and the Lenders prior to or
concurrent with the date hereof, are the true, accurate, complete and current
version of such documents, and the Borrowers shall not, nor shall they permit
their Subsidiaries to, amend, alter or modify their organizational documents,
except as may be otherwise permitted herein in connection with any Permitted
Acquisition or merger, consolidation or reorganization.
(y) Year 2000 Compliance. Borrowers have taken, and shall continue to take,
all action necessary to ensure that their computer hardware, computer-based
systems, and software (together with those of its Subsidiaries) are now, and
shall be after December 31, 1999, able to effectively and accurately process
data including dates and date sensitive functions (the "Year 2000 Problem").
Borrowers have also investigated the Year 2000 readiness of their key suppliers
and vendors and have developed contingency plans, where necessary. Borrowers
represent and warrant that the Year 2000 Problem will not have a Material
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Adverse Effect on Borrowers' business condition (financial or otherwise),
operations, properties, prospects or ability to repay any of the Obligations.
Upon request, Borrowers shall provide assurances acceptable to Lender that
Borrowers' computer systems and software are Year 2000 compliant. Borrower shall
immediately advise Lender in writing of any material changes in Borrowers' Year
2000 plan, timetable or budget.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders made after the date of this Agreement or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless Borrowers have obtained an amendment, waiver or
consent, as applicable, in the manner set forth in Section 13.11 hereof, the
Borrowers will furnish or cause to be furnished to the Administrative Agent and
to the Lenders at their respective addresses as set forth on Schedule I, or such
other office as may be designated by the Administrative Agent and Lenders from
time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any event
within forty-five (45) days after the end of the first three (3) Fiscal quarters
on each Fiscal Year, an unaudited Consolidated and consolidating balance sheet
of the Borrowers and their Subsidiaries as of the close of such Fiscal quarter,
and unaudited Consolidated and consolidating statements of income, retained
earnings and cash flows for the Fiscal quarter then ended, together with
statements through that portion of the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by the
Borrowers in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period,
certified by the chief financial officer of the Borrowers to present fairly in
all material respects the financial condition of the Borrowers and their
Subsidiaries as of their respective dates and the results of operations of the
Borrowers and their Subsidiaries for the respective periods then ended, subject
to normal year end adjustments.
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Additionally, as soon as is available, but in no event later than
forty-five (45) days after the end of the each fiscal quarter, the Borrowers
shall present Administrative Agent with their Quarterly 10Q Report, together
with all other schedules, documents, certificates and information which the
Borrowers are required to submit to the Securities and Exchange Commission (or
any successor agency thereto, the "SEC").
(b) Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrowers and their Subsidiaries as of the
close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year. Such statements shall be
prepared by an independent certified public accounting firm acceptable to the
Administrative Agent in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during the
year, and shall be accompanied by a report thereon by such certified public
accountants that is not qualified with respect to the scope of limitations
imposed by the Borrowers o any of their Subsidiaries or with respect to
accounting principles followed by the Borrowers or any of their Subsidiaries
which are not in accordance with GAAP.
Additionally, as soon as is available, but in no event later than ninety
(90) days after the end of each Fiscal Year, the Borrowers shall present
Administrative Agent with their Annual 10K Report, including a CPA Management
letter prepared by a certified public accountant acceptable to Administrative
Agent, together with all other schedules, documents, certificates, and
information which the Borrowers are required to submit to the SEC.
(c) Annual Business Plan and Financial Projections. As soon as practicable
and in any event within ninety (90) days prior to the beginning of each Fiscal
Year, a business plan of the Borrowers and their Subsidiaries for the ensuing
five (5) Fiscal Years, such plan to be prepared in accordance with GAAP and to
include, on a quarterly basis, the following: a quarterly operating and capital
budget, a projected income statement, statement of cash flows and balance sheet,
and a report containing management's discussion and analysis of such
projections, accompanied by a certificate from the chief financial officer of
the Borrowers to the effect that, to the best of such officer's knowledge, such
projections are good faith estimates of the financial condition and operations
of the Borrowers and their Subsidiaries for such five (5) Fiscal Year period.
SECTION 7.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief financial officer or the treasurer of the Borrowers in the form of Exhibit
F attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 Accountants' Certificate. At each time financial statements are
delivered pursuant to Section 7.1(b), a certificate of the independent public
accountants certifying such financial statements addressed to the Administrative
Agent for the benefit of the Lenders:
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(a) stating that in making the examination necessary for the certification
of such financial statements, they obtained no knowledge of any Default or Event
of Default or, if such is not the case, specifying such Default or Event of
Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required to
establish whether or not the Borrowers and their Subsidiaries are in compliance
with the financial covenants set forth in Article IX hereof as of the end of
each respective period; and
(c) including a fully executed copy of a letter from such accountants to
the Borrowers (i) expressly acknowledging that a primary intent of the Borrowers
(with respect to such statements) is for such accountants' examination and
report with respect to such statements of the Borrowers to benefit or influence
the Lenders (A) in connection with Extensions of Credit and other financial
accommodations to the Borrowers from time to time, or (B) otherwise in
connection with the preparation, review, execution, delivery, amendment,
modification, administration, collection and/or enforcement of the Loan
Documents, and (ii) expressly authorizing the Lenders to rely on the examination
and report of such accountants with respect to the audited financial statements
of the Borrowers as of and for such Fiscal Year then ending.
SECTION 7.4 Other Reports.
(a) Promptly upon receipt thereof, in addition to those reports which may
be required pursuant to Section 7.1 (b) herein, copies of all reports, if any,
submitted to the Borrowers or its Board of Directors by its independent
certified public accountants in connection with their auditing and accounting
function, including, without limitation, any management report and any
management responses thereto; and
(b) Such other information regarding the operations, business affairs and
financial condition of the Borrowers or any of their Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no event
later than ten (10) days after an officer of the Borrowers obtains knowledge
thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or before
any arbitrator against or involving the Borrowers or any Subsidiary thereof or
any of their respective properties, assets or businesses in which, if adversely
determined, could result in liability in an amount equal to or greater than One
Hundred Thousand Dollars ($100,000);
(b) any notice of any violation received by the Borrowers or any Subsidiary
thereof from any Governmental Authority including, without limitation, any
notice of a violation of any Environmental Laws;
(c) any labor controversy that has resulted in, or threatens to result in,
a strike or other work action against the Borrowers or any Subsidiary thereof,
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(d) any attachment, judgment, lien, levy or order exceeding $100,000
(whether individually or in the aggregate) that may be assessed against or
threatened against the Borrowers or any Subsidiary thereof.
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Loan Documents or Material Contract to
which the Borrowers or any of their Subsidiaries is a party or by which the
Borrowers or any Subsidiary thereof or any of their respective properties may be
bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (alone, with a copy thereof), (ii) all notices received by
the Borrowers or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by the Borrowers or any ERISA Affiliate from a
multi-employer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA and (iv) the Borrowers obtaining
knowledge or reason to know that any of the Borrowers or any ERISA Affiliate has
filed or intends to file a notice of intent to terminate any Pension Plan under
a distress termination within the meaning of Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth in Section
6.1 inaccurate in any material respect; and
(h) the occurrence of any Material Adverse Effect.
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrowers
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VII or any other provision of this Agreement,
or any of the Security Documents, shall be, at the time the same is so
furnished, complete and correct in all material respects to the extent necessary
to give the Administrative Agent or any Lender complete, true and accurate
knowledge of the subject matter based on the Borrowers' knowledge thereof.
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless an amendment, waiver or consent, as applicable,
has been obtained in the manner provided for in Section 13.11, the Borrowers
will, and will cause each of their Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters. Except
as permitted by Section 10.5, preserve and maintain their separate corporate
existence and all rights, franchises, licenses and privileges necessary to the
conduct of its business, and qualify and remain qualified as a foreign
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corporation and authorized to do business in each jurisdiction where the nature
and scope of its activities require it to so qualify under Applicable Law.
SECTION 8.2 Maintenance of Property. In addition to the requirements of any
of the Security Documents, protect and preserve all properties useful in and
material to its business, including copyrights, patents, trade names and
trademarks; maintain in good working order and condition all buildings,
equipment and other tangible real and personal property; and from time to time
make or cause to be made all renewals, replacements and additions to such
property necessary for the conduct of its business, so that the business carried
on in connection therewith may be properly and advantageously, conducted at all
times.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses, and as otherwise may be required
by the Security Documents and Applicable Law. On the Closing Date, and from time
to time thereafter, deliver to the Administrative Agent upon its request, a
detailed list of the insurance then in effect, stating the names of the
insurance companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby.
Additionally, upon the Administrative Agent's request, the Borrowers shall
deliver to Administrative Agent such certificates as Administrative Agent may
require; in each case listing the Administrative Agent, for and on behalf of the
Lenders as the loss payee (without contribution), and providing that no
amendment, modification, cancellation or termination shall be effective against
Administrative Agent, unless the Administrative Agent shall have received thirty
(30) days prior written notice thereof.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete in all material respects) as may be required or as may be necessary to
permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over them or any of their respective properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and discharge all
Obligations under this Agreement and the other Loan Documents, and pay or
discharge (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrowers or such Subsidiary may contest any item
described in clauses (a) or (b) of this Section 8.5, so long as such contest is
done in good faith, by proceedings diligently contested, and the Borrowers have
established adequate reserves therefor in accordance with GAAP. SECTION 8.6
Compliance With Laws and Approvals. Observe and remain in compliance with all
Applicable Laws and maintain in full force and effect all Governmental
Approvals, in each case applicable to the conduct of its business. SECTION 8.7
Environmental Laws. In addition to and without limiting the generality of
Section 8.6 Compliance with Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business.
SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
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tenants and subtenants of the Properties, with all applicable Environmental Laws
and obtain, maintain, comply with and ensure that all tenants and subtenants
obtain, comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs an expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of or noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrowers or such Subsidiary, 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 directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting the
generality of Section 8.6, (a) comply with all applicable provisions of ERISA
and the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (b) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemplover Plan, (c)
not participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code, (d) operate each Employee Benefit
Plan in such a manner that will not incur any tax liability under Section 4980B
of the Code or any liability to any qualified beneficiary as defined in Section
4980B of the Code and (e) furnish to the Administrative Agent upon the
Administrative Agent's request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent.
SECTION 8.9 Compliance With Agreements. Comply in all respects with each
term, condition and provision of all leases, agreements and other instruments
entered into in the conduct of its business including, without limitation, any
Material Contract; provided, that the Borrowers or such Subsidiary may contest
any such lease, agreement or other instrument, so long as such contest is
conducted in good faith, through applicable proceedings diligently conducted,
and provided Borrowers maintain adequate reserves therefore in accordance with
GAAP.
SECTION 8.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and in lines of business reasonably related thereto.
SECTION 8.11 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect
their properties; inspect, audit and make extracts from their books, records and
files, including, but not limited to, management letters prepared by independent
accountants; and discuss with their principal officers, and their independent
accountants, their business, assets, liabilities, financial condition, results
of operations and business prospects. Notwithstanding the foregoing (and
provided that no Event of Default has occurred and is continuing), the Borrowers
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shall be provided with reasonable advance notice of any discussions to be held
with the Borrowers' independent accountants, and the Borrowers shall also be
afforded the opportunity to participate and join in such discussions.
SECTION 8.12 Additional Subsidiaries. In the event that, subsequent to the
Closing Date, any Borrower shall acquire or create any new subsidiary, the
Borrowers shall, within ten (10) days subsequent to such creation or
acquisition, cause such Subsidiary to execute and deliver to Administrative
Agent:
(a) duly executed Stock Pledge Agreements, or supplements thereto, such
that all of the capital stock or other equity interests of such Subsidiary is
pledged to the Administrative Agent for the benefit of, and on account of the
Lenders;
(b) such other documents, agreements, instruments and certificates as the
Administrative Agent and the Lenders may reasonably request, to bind such
Subsidiary to the terms and provisions of this Agreement, and to cause
Subsidiary to pledge such Subsidiary's interests, if any, in the property given
as Collateral for the payment and performance of the Obligations; and
(c) favorable legal opinions addressed to the Administrative Agent and the
Lenders in form and substance satisfactory to such entities, with respect to the
Subsidiary's organizational status, and with respect to the documents,
agreements and certificates delivered by such Subsidiary pursuant to the
provisions of Section 8.12(a) and 8.12(b) herein.
SECTION 8.13 Hedging Agreement. Within ninety (90) days of the Closing
Date, the Borrowers agree to purchase interest rate protection, in the form of a
Hedging Agreement, from one of the Lenders, or from some other Person not a
party to this transaction; provided, however, in the event that the Borrowers
purchase (to the extent not previously purchased) such protection from a
non-party to this Agreement, (i) such Hedging Agreement must be in a form and
substance satisfactory to all of the Lenders, all of whom shall evidence their
consent or disapproval in writing, and (ii) the Administrative Agent shall have
no obligation to allow such non-party to obtain any interest in the Collateral.
At a minimum, any such Hedging Agreement shall provide interest rate protection
covering at least fifty percent (50%) of the Aggregate Commitment, and shall be
for a duration of at least three (3) years.
SECTION 8.14 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in the Administrative
Agent and the Lenders their respective rights under this Agreement, the Notes,
the Letters of Credit and the other Loan Documents.
ARTICLE IX.
FINANCIAL COVENANTS
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Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless an amendment, waiver or consent, as applicable,
has been obtained in the manner set forth in Section 13.11 hereof, the Borrowers
and their Subsidiaries on a Consolidated basis will not:
SECTION 9.1 Leverage Ratio: At any time, permit the ratio of Funded Debt to
the sum of (i) Cash Flow plus, without duplication, (ii) Adjusted Cash Flow for
all Permitted Acquisitions during the prior four quarters to exceed
(a) 3.75 to 1.00, for the period commencing on the Closing Date and ending
on October 31, 2002;
(b) 3.00 to 1.00, for the period commencing on November 1, 2002 and ending
on October 31, 2003; and
(c) 2.25 to 1.00, for the period commencing on November 1, 2003 until the
Termination Date.
Additionally, in the event there shall occur any Permitted Acquisition, the
Borrowers shall not, after giving effect to such Permitted Acquisition, permit
the Funded Debt to the sum of (i) Cash Flow plus, without duplication, (ii)
Adjusted Cash Flow for all Permitted Acquisitions during the prior four quarters
to exceed, calculated as of the effective date of such Permitted Acquisition, on
a proforma basis:
(i) 3.50 to 1.00; for the period commencing on the Closing Date and
ending on October 31, 2002;
(ii) 2.75 to 1.00; for the period commencing on November 1, 2002, and
ending on October 31, 2003; and
(iii) 2.00 to 1.00, for the period commencing on November 1, 2003,
until the Termination Date.
SECTION 9.2 Fixed Charge Coverage Ratio: Permit the Fixed Charge Coverage
ratio to be less than 1.25 to 1.00, measured as of the end of each fiscal
quarter.
SECTION 9.3 Interest Coverage Ratio: Permit the Interest Coverage ratio to
be less than to 2.50 to 1.0 as of the end of each fiscal quarter.
SECTION 9.4 Minimum Net Worth. The Borrowers shall maintain an initial
minimum Net Worth equal to or greater than eleven million and 00/100 Dollars
($11,000,000). Commencing on November 1, 1999, and as of and for the end of each
fiscal quarter thereafter, the Borrowers shall cause their Net Worth to increase
by the sum of: (i) 75% of Borrowers' net income, as determined in accordance
with GAAP, on a Consolidated basis, plus (ii) 100% of their equity issuances or
pooling transactions; provided further, in the event net income for any such
period is negative, the Borrowers shall not be entitled to subtract such
shortfall from their calculation of, nor obligations regarding, minimum Net
Worth.
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ARTICLE X.
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11 hereof, the Borrowers have not and will not permit any of their
Subsidiaries to:
SECTION 10.1 Limitations on Debt. Create, incur, assume or suffer to exist
any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement (i) with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent or (ii) required pursuant to Section
8.13;
(c) Subordinated Debt; provided that after giving effect to such
Subordinated Debt issuance, Borrower's ratio of: (i) the sum of (A) Funded Debt
plus (B) Subordinated Debt; divided by (ii) Cash Flow, shall not exceed 4.5 to
1.0, measured on a rolling, prior four (4) quarter basis.
(d) Debt existing on the Closing Date and not otherwise permitted under
this Section 10.1, as set forth on Schedule 6.1(t), as the same may be renewed
or refinanced (but not the increase of the aggregate principal amount thereof)
thereof;
(e) purchase money Debt of the Borrowers and their Subsidiaries in an
aggregate amount not to exceed $1,000,000 on any date of determination; and
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of the Borrowers to make
any payment to the Borrowers or any of their Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the purpose of enabling the
Borrowers to pay the Obligations.
SECTION 10.2 Limitations on Guaranty Obligations. Create, incur, assume or
suffer to exist any Guaranty Obligations except Guaranty Obligations in favor of
the Administrative Agent for the benefit of the Administrative Agent and the
Lenders.
SECTION 10.3 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
without limitation shares of capital stock or other ownership interests), real
or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or levies
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
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Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired, or which are
being contested in good faith and by appropriate proceedings diligently
contested, if adequate reserves are maintained by Borrowers to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings diligently contested, if Borrower maintains adequate
reserves therefor in accordance with GAAP.
(c) Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation or obligations (not
to exceed $50,000 under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which do not, in any
case, detract from the value of such property or impair the use thereof in the
ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders;
(f) Liens not otherwise permitted under Section 10.3 and in existence on
the Closing Date and described on Schedule 10.3;
(g) Liens securing Debt permitted under Section 10.1(e); provided that (i)
such Liens shall be created substantially simultaneously with the acquisition of
the related asset, (ii) such Liens do not at any time encumber any property
other than the property financed by such Debt, (iii) the amount of Debt secured
thereby is not increased and (iv) the principal amount of Debt secured by any
such Lien shall at no time exceed one hundred percent (100%) of the original
purchase price of such property at the time it was acquired and (v) such Lien
shall not prohibit the attachment or perfection of the Administrative Agent's or
Lenders' Liens pursuant to this Agreement; and
(h) Liens securing Debt, as and to the extent provided in Section 8.13 and
10.1(b).
SECTION 10.4 Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any
capital stock, interests in any partnership or joint venture (including without
limitation the creation or capitalization of any Subsidiary), evidence of Debt
or other obligation or security, substantially all or a portion of the business
or assets of any other Person or any other investment or interest whatsoever in
any other Person, or make or permit to exist, directly or indirectly, any loans,
advances or extensions of credit to, or any investment in cash or by delivery of
property in, any Person except:
(a) investments not otherwise permitted by this Section 10.4 in
Subsidiaries existing on the Closing Date and the other existing loans, advances
and investments not otherwise permitted by this Section 10.4 described on
Schedule 10.4;
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(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within 120 days from the date of acquisition thereof, (ii) commercial
paper maturing no more than 120 days from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or ▇▇▇▇▇'▇
Investors Service, Inc., (iii) certificates of deposit maturing no more than 120
days from the date of creation thereof issued by commercial banks incorporated
under the laws of the United States of America, each having combined capital,
surplus and undivided profits of not less than $500,000,000 and having a rating
of "A" or better by a nationally recognized rating agency; provided, that the
aggregate amount invested in such certificates of deposit shall not at any time
exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for
any one such bank, or (iv) time deposits maturing no more than 30 days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder; and
(c) investments by the Borrowers or any Subsidiary in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person, provided such acquisition is a Permitted Acquisition. As
used herein, an acquisition shall be deemed a Permitted Acquisition, provided
the following conditions are satisfied:
(i) The Purchase Price paid by the Borrowers in connection with such
acquisition shall be less than $3,000,000 in connection with a
single acquisition; or, in the event of more than one
acquisition, said Purchase Price shall not exceed $10,000,000 in
the aggregate during any four (4) rolling fiscal quarter period.
In the event that the consideration proposed to be paid or
assumed exceeds the aforementioned levels, the Borrowers must
obtain prior written consent of the Required Lenders.
Additionally, the Borrowers shall not pay any form of
consideration, nor assume any liability, that is not a
constituent part of the definition herein of Purchase Price.
(ii) The Purchase Price for any acquisition shall not exceed six times
the seller's most recent rolling four (4) quarters' Adjusted Cash
Flow, and the cash paid for any acquisition shall not exceed four
times the seller's most recent rolling four (4) quarters Adjusted
Cash Flow.
(iii)No Default or Event of Default exists at the proposed time of
the acquisition, nor would any Default or Event of Default exist
after giving effect to such acquisition.
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(iv) The Administrative Agent and each of the Lenders shall have
received at least thirty (30) days prior written notice of any
proposed acquisition.
(v) The Lenders shall be satisfied with the nature and type of assets
being acquired in connection with such acquisition, and shall be
satisfied (both as to form and substance) with the Acquisition
Documents governing such acquisition.
(vi) No liabilities, either contingent or otherwise, shall be acquired
by the Borrowers or the Subsidiaries in connection with such
acquisition except for Permitted Assumed Liabilities.
(vii)The Borrowers shall grant the Administrative Agent, for the
ratable benefit of the Lenders, a first priority, perfected
security interest in all property that the Borrowers acquire from
the seller in connection with such acquisition.
(viii)The Borrowers shall certify compliance with all financial
covenants contained in this Agreement, on a pro forma basis after
giving effect to the Permitted Acquisition, using historical
Adjusted Cash Flow of the seller for the most recently ended
fiscal quarter prior to the date of the proposed acquisition, as
if the proposed acquisition had been consummated on the first day
of such period.
SECTION 10.5 Limitations on Mergers and Liquidation. Merge, consolidate or
enter into any similar combination with any other Person or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution); provided, however
in the event that no Default then exists or would exist after giving effect to
any proposed transaction:
(a) any Wholly-Owned Subsidiary of the Borrowers may merge with any other
Wholly-Owned Subsidiary of the Borrowers;
(b) any Wholly-Owned Subsidiary may merge into the Person such Wholly-Owned
Subsidiary was formed to acquire in connection with an acquisition permitted by
Section 10.4(c);
(c) any Wholly-Owned Subsidiary of the Borrowers may wind-up into the
Borrowers or any other Wholly-Owned Subsidiary of the Borrowers including,
without limitation, the contemplated dissolution of A.M. Fridays, Inc., provided
that the assets of A.M. Fridays, Inc. (if any) are transferred to one or more of
the Borrowers, under and subject to the existing liens and security interest
granted in favor of the Lenders; and
(d) any of the Borrowers may merge with and into any other Person; provided
the Borrower is the surviving entity, and the Administrative Agent's and
Lenders' positions in the Loan Documents and Security Documents are not
otherwise impaired.
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SECTION 10.6 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets in an
amount in excess, whether individually or in the aggregate, Five Hundred
Thousand and 00/100 Dollars ($500,000.00) (including, without limitation, the
sale of any receivables and leasehold interests and any sale-leaseback or
similar transaction), whether now owned or hereafter acquired, except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the business of
the Borrowers or any of their Subsidiaries; provided the aggregate fair market
value of the assets sold does not exceed (in addition to the $500,000 amount set
forth above in this Section 10.6) Seventy-five and 00/100 Dollars ($75,000.00)
during any Fiscal Year;
(c) the transfer of assets to the Borrowers or any Wholly-Owned Subsidiary
of the Borrowers pursuant to Section 10.5(c); and
(d) the sale or discount without recourse of accounts receivable arising in
the ordinary course of Borrowers' business in connection with the compromise or
collection thereof.
SECTION 10.7 Limitations on Dividends and Distributions. Declare or pay any
dividends upon any of its capital stock; purchase, redeem, retire or otherwise
acquire, directly or indirectly, any shares of its capital stock, or make any
distribution of cash, property or assets among the holders of shares of its
capital stock, or make any change in its capital structure; provided that:
(a) the Borrowers or any Subsidiary may pay dividends in shares of its own
capital stock; and
(b) any Subsidiary may pay cash dividends to the Borrowers.
SECTION 10.8 Limitations on Exchange and Issuance of Capital Stock. Issue,
sell or otherwise dispose of any class or series of capital stock that, by its
terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 10.9 Transactions with Affiliates. Directly or indirectly (a) make
any loan or advance to, or purchase or assume any note or other obligation to or
from, any of its officers, directors, shareholders or other Affiliates, or to or
from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates or (b) enter into, or be a party to, any other transaction with any
of its Affiliates, except pursuant to the reasonable requirements of its
business and upon fair and reasonable terms that are fully disclosed to and
approved in writing by the Required Lenders prior to the consummation thereof
and are no less favorable to it than it would obtain in a comparable arm's
length transaction with a Person not its Affiliate.
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SECTION 10.10 Certain Accounting Changes. Change its Fiscal Year end, or
make any change in its accounting treatment and reporting practices except as
required by GAAP.
SECTION 10.11 Amendments; Payments and Prepayments of Subordinated Debt.
Amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Debt, or cancel or forgive, make any voluntary or
optional payment or prepayment on, or redeem or acquire for value (including
without limitation by way of depositing with any trustee with respect thereto
money or securities before due for the purpose of paying when due) any
Subordinated Debt.
SECTION 10.12 Restrictive Agreements. Enter into any agreement which
contains any negative pledge on assets, or which restricts, limits or otherwise
encumbers Borrowers ability to incur Liens on or with respect to any of its
assets or properties.
SECTION 10.13 Capital Expenditures. The Borrowers shall not during any
Fiscal Year, on a Consolidated basis, make any Capital Expenditures, whether for
cash, credit, exchange or on any other terms, to the extent that the
consideration for such Capital Expenditures is greater than 1.0 times the
Borrowers' annual depreciation expense.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement Obligations.
The Borrowers shall default in any payment of principal of any Loan, Note or
Reimbursement Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. The Borrowers shall default in the payment when
and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for three (3)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to be
made by the Borrowers or any of their Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto (including representations and
warranties that, by operation of this Agreement, are deemed to be re-affirmed
upon the occurrence of certain events and conditions), shall at any time prove
to have been incorrect or misleading in any material respect when made or deemed
made.
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(d) Default in Performance of Certain Covenants. The Borrowers shall
default in the performance or observance of any covenant or agreement contained
in Section 7.5(e) or Articles VIII, IX or X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The Borrowers
or any Subsidiary thereof shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section 11.1) or any other Loan
Document and such default shall continue for a period of ten (10) days after
written notice thereof has been given to the Borrowers by the Administrative
Agent, except with respect to the covenants set forth in Sections 7.1 and 7.2,
with respect to which such default need only be continuing for a period of ten
(10) days after written notice thereof has been given to the Borrowers by the
Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrowers under any Hedging Agreement, after the expiration of any notice and
cure period, if any, and such amount is not paid within three (3) Business Days
of the due date thereof.
(g) Debt Cross-Default. The Borrowers or any of their Subsidiaries shall:
(i) default in the payment of any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $50,000 beyond the period of grace if any, provided in the instrument
or agreement under which such Debt was created, or (ii) default in the
observance or performance of any other agreement or condition relating to any
Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $100,000 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 Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity.
(h) Other Cross-Defaults. The Borrowers or any of their Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract; provided and except, the
foregoing shall not apply so long as the existence of any such default is being
contested by the Borrowers or such Subsidiary in good faith by appropriate
proceedings diligently conducted, and adequate reserves in respect thereof have
been established on the books of the Borrowers or such Subsidiary to the extent
required by GAAP.
(i) Change in Control. There shall occur a Change in Control.
(j) Voluntary Bankruptcy Proceeding. The Borrowers or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
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trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrowers or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrowers or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or of any other
Loan Document shall for any reason cease to be valid and binding on the
Borrowers or Subsidiary party thereto or any such Person shall so state in
writing, or this Agreement or any other Loan Document shall for any reason cease
to create a valid and perfected first priority Lien on, or security interest in,
any of the collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following events: (i)
the Borrowers or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the
Code, the Borrowers or any ERISA Affiliate is required to pay as contributions
thereto, (ii) an accumulated funding deficiency in excess of $250,000 occurs or
exists, whether or not waived, with respect to any Pension Plan, (iii) a
Termination Event or (iv) the Borrowers or any ERISA Affiliate as employers
under one or more Multiemployer Plans, makes a complete or partial withdrawal
from any such Multiemployer Plan and the plan sponsor of such Multiemployer
Plans notifies such withdrawing employer that such employer has incurred a
withdrawal liability requiring payments in an amount exceeding $250,000.
(n) Judgment. A judgment or order for the payment of money which causes the
aggregate amount of all such judgments to exceed $200,000 in any Fiscal Year
shall be entered against the Borrowers or any of their Subsidiaries by any court
and such judgment or order shall continue without discharge or stay for a period
of thirty (30) days.
(o) Loss of Revenue. Should the Borrowers lose any broker, distributor or
customer which, for the most recent twelve month period (measured back from the
end of the most recent calendar month) accounted for fifteen percent (15%) or
more of the Borrowers' gross revenue for such period unless, within 45 days of
receiving notice or obtaining knowledge of such termination, the Borrowers shall
provide to the Administrative Agent projections (satisfactory to the Lenders)
indicating that such lost revenues will not cause or result in a Default or
Event of Default (it being understood that such projections shall include, among
other items, a compliance certificate showing the anticipated effect of such
loss on the Borrowers' revenues, and such projections contain assumptions
satisfactory to the Lenders).
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SECTION 11.2 Remedies. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrowers:
(a) Acceleration, Termination of Facilities. Declare the principal of and
interest on the Loans, the Notes, the Reimbursement Obligations at the time
outstanding, and all other amounts owed to the Lenders and to the Administrative
Agent under this Agreement or any of the other Loan Documents (other than any
Hedging Agreement) (including, without limitation, all L/C Obligations, whether
or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and all other Obligations (other
than obligations owing under any Hedging Agreement), to be forthwith due and
payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of the
Borrowers to request borrowings or Letters of Credit thereunder; provided, that
upon the occurrence of an Event of Default specified in Section 11.1(j) or (k),
the Credit Facility shall be automatically terminated and all Obligations (other
than obligations owing under any Hedging Agreement) shall automatically become
due and payable.
(b) Letters of Credit. With respect to all Letters of Credit which have not
been presented for honor at the time of an acceleration pursuant to the
preceding paragraph, require the Borrowers at such time to deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate unexpired amount of such Letters of Credit, which are outstanding, but
have not yet been drawn on or presented for payment. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay the other Obligations. After all such Letters of
Credit shall have expired or been fully drawn upon, the Reimbursement Obligation
shall have been satisfied, and all other Obligations shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the Borrowers.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 11.3 Default Remedies. Upon the occurrence of a Default, which is
not also an Event of Default, and until the Borrowers cure such Default (if
permitted), the Administrative Agent may, in its sole discretion: (i)
immediately suspend Borrowers' rights under this Agreement to borrow under any
Note or apply for the issuance of any Letter of Credit or other Extension of
Credit, and to the extent that the Borrower has previously submitted an
Application, yet the Issuing Lender has not presented the Letter of Credit to
the applicable beneficiary for the beneficiary's account, the Issuing Lender
need not present such Letter of Credit to the beneficiary until such Default is
cured, if permitted, and (ii) immediately suspend Borrowers' rights to request a
continuation or conversion of any interest rate. The Administrative Agent shall
be entitled to exercise such remedies without presentment, demand, protest or
other notice of any kind to Borrowers, all of which are hereby expressly waived.
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SECTION 11.4 Rights and Remedies Cumulative; Non-Waiver; Etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy
allowed hereunder, under the Loan Documents or that may now or hereafter exist
in law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude another or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably designates
and appoints First Union as Administrative Agent of such Lenders under this
Agreement and the other Loan Documents for the term hereof and each such Lender
irrevocably authorizes First Union as Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and such other Loan Documents together with such other powers as are reasonably
incidental thereto. Any provision elsewhere in this Agreement or such other Loan
Documents to the contrary notwithstanding, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent in
this Agreement shall be deemed to refer to the Administrative Agent solely in
its capacity as Administrative Agent and not in its capacity as a Lender.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute any
of its respective duties under this Agreement and the other Loan Documents 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 the Administrative Agent with reasonable care;
provided, however, that the Administrative Agent shall be responsible if the
Borrowers provide prompt written notice to the Administrative Agent of any
dereliction in the performance of any such delegated duties which the
Administrative Agent, in its sole discretion, deems to be curable, and with
respect to which the Administrative Agent fails to use reasonable efforts to
cure such dereliction by any such agent or attorney-in-fact.
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SECTION 12.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries 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
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's or entities' 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 the Borrowers or any of their
Subsidiaries or of any officer thereof, whether contained in this Agreement or
the other Loan Documents 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 Agreement or the other Loan Documents, nor for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents, nor for any failure of the
Borrowers or any of their Subsidiaries to perform its obligations hereunder or
thereunder. Outside of Administrative Agent's general duties hereunder, and
excepting Administrative Agent's gross negligence or willful misconduct (and
that of its employees, agents, Affiliates, Subsidiaries, officers and attorneys
in fact), the Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of this Agreement, or to inspect the
properties, books or records of the Borrowers or any of their Subsidiaries.
SECTION 12.4 Reliance by the 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 reasonably believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrowers), 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 such Note shall have
been transferred in accordance with Section l3.10 hereof. The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Agreement and the other Loan Documents unless it shall first receive the
advice or concurrence of the Required Lenders as the Administrative Agent deems
appropriate, or shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by
Administrative Agent's taking or continuing any such action; provided and except
the Administrative Agent shall not be indemnified for Administrative Agent's own
gross negligence or willful misconduct. The Administrative Agent shall in all
cases be fully protected in acting or in refraining from acting, under this
Agreement and the Notes in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Notes.
SECTION 12.5 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 it has received notice from a Lender, the Borrowers, or
any third party submitting reports and statements pursuant to this Agreement,
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
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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 further 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 necessary or
advisable, or in the best interests of the Lenders, to the extent that other
provisions of this Agreement expressly require that any such action be taken or
not be taken only with the consent and authorization or the request of the
Lenders or Required Lenders notwithstanding.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Borrowers or any of their Subsidiaries, 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 such Lender has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and their Subsidiaries and made its own decision to make the Loans and
issue or participate in Letters of Credit hereunder and enter into this
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 Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and their Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or by the other Loan Documents, 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, financial and other condition or creditworthiness of the Borrowers or
any of their Subsidiaries, which information may come into the possession of the
Administrative Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, attorneys fees, or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or the other Loan Documents, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing, provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
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costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 12.7 shall survive the termination of this Agreement and the
payment of the Notes, any Reimbursement Obligation and all other amounts payable
hereunder.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrowers as though the Administrative Agent were not an Administrative
Agent hereunder. With respect to any Loans made or renewed by it, any Note
issued to it, and any Letter of Credit issued by it or participated in by it,
the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "'Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 12.9 Resignation of the Administrative Agent: Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring, Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested.
(b) Addresses for Notices. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
If to the Borrowers: Vermont Pure Springs, Inc.
Catamount Industrial Park
▇▇▇▇▇ ▇▇, ▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.:(▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Ledgewood Law Firm
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to First Union as
Administrative Agent: First Union National Bank
PA 4848
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
With copies to: Stradley, Ronon, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to any Lender: To the Address set forth on Schedule 1 hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrowers and Lenders as provided for herein, as the Administrative Agent's
Office referred to herein, to which payments are to be made and at which Loans
will be disbursed and Letters of Credit issued.
SECTION 13.2 Expenses; Indemnity. The Borrowers will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with (i) the
preparation, execution, negotiation and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and delivered,
including without limitation all out-of-pocket syndication and due diligence
expenses and reasonable fees and disbursements of counsel for the Administrative
Agent and (ii) the preparation, execution and delivery of any waiver, amendment
or consent by the Administrative Agent or the Lenders relating to this Agreement
or any other Loan Document, including, without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and each Lender actually
incurred in connection with the administration and enforcement of any rights and
remedies of the Administrative Agent and Lenders under this Agreement, including
consulting with appraisers, accountants, engineers, attorneys and other Persons
concerning the nature, scope or value of any right or remedy of the
Administrative Agent or any Lender hereunder or under any other Loan Document or
any factual matters in connection therewith, which expenses shall include
without limitation the reasonable fees and disbursements of such Persons, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any losses, penalties, fines,
liabilities, settlements damages, costs and expenses, suffered by any such
Person in connection with any claim, investigation, litigation or other
proceeding (whether or not the Administrative Agent or any Lender is a party
thereto) and the prosecution and defense thereof, arising out of or in any way
connected with the Agreement, any other Loan Document or the Loans, including
without limitation reasonable attorney's an consultant's fees, except to the
extent that any of the foregoing directly result from the gross negligence or
willful misconduct of the party seeking indemnification therefor.
SECTION 13.3 Set-off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon and
after the occurrence of any Event of Default and during the continuance thereof,
the Lenders and any assignee or participant of a Lender in accordance with
Section 13.10 are hereby authorized by the Borrowers at any time or from time to
time, without notice to the Borrowers or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, time or demand, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the Lenders,
or any such assignee or participant to or for the credit or the account of the
Borrowers, against and on account of the Obligations irrespective of whether or
not (a) the Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall have declared any
or all of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured. The Administrative
Agent and the Lenders shall incur no penalties, nor be responsible for the
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payment of any fees, costs, expenses or "breakage" costs on account of
exercising such remedies and such setoff; the foregoing being the sole
responsibility of the Borrowers. SECTION 13.4 Governing Law. This Agreement, the
Notes and the other Loan Documents, unless otherwise expressly set forth
therein, shall be governed by, construed and enforced in accordance with the
laws of the Commonwealth of Pennsylvania, without reference to the conflicts or
choice of law principles thereof.
SECTION 13.5 Consent to Jurisdiction. The Borrowers hereby irrevocably
consent to the personal jurisdiction of the state and federal courts located in
Philadelphia County, Pennsylvania, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or any Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of themselves or their property, in the manner
specified in Section 13.1. Nothing in this Section 13.5 shall affect the right
of the Administrative Agent or any Lender to serve legal process in any other
manner permitted by Applicable Law or affect the right of the Administrative
Agent or any Lender to bring any action or proceeding against the Borrowers or
their properties in the courts of any other jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to the Notes or any other Loan
Documents ("Disputes"), between or among parties to the Notes or any other Loan
Document, all Disputes 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, claims brought as class actions, claims
arising from Loan Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Philadelphia, Pennsylvania. 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. A judgment upon the award may be entered in any court having
jurisdiction. Any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within
one-hundred and twenty (120) days after such demand. These time limitations may
not be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys. The single
arbitrator selected for expedited procedure shall be a retired judge from the
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highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement that is a
Loan Document.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWERS
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS, AND THE
INTERPRETATION THEREOF.
(c) Preservation of Certain Remedies. The preceding binding arbitration
provisions, notwithstanding, the parties hereto and to the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other Collateral or security by exercising a power of sale granted in the Loan
Documents or under applicable law or by judicial foreclosure and sale, (ii) all
rights of self help including peaceful occupation of property and collection of
rents, set off, and peaceful possession of property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
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. SECTION
13.7 Reversal of Payments. To the extent the Borrowers make a payment or
payments to the Administrative Agent for the ratable benefit of the Lenders, or
the Administrative Agent receives any payment or proceeds of the collateral
which payments or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, state
or federal law, common law or equitable cause, then, to the extent of such
payment or proceeds repaid, the Obligations or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if such
payment or proceeds had not been received by the Administrative Agent.
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SECTION 13.8 Injunctive Relief, Punitive Damages.
(a) The Borrowers recognize that, in the event the Borrowers fail to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrowers agree that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, Lenders and Borrowers (on behalf of
themselves and their Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive, consequential, special or exemplary damages against any
other party to a Loan Document and each such Person hereby waives any right or
claim to punitive, consequential, special or exemplary damages that they may now
have or may arise in the future in connection with any Dispute, whether such
Dispute is resolved through arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting calculations,
measurements and computations made for any purpose relating to this Agreement,
including, without limitation, all computations utilized by the Borrowers or any
Subsidiary thereof to determine compliance with any covenant contained herein,
shall, except as otherwise expressly contemplated hereby or unless there is an
express written direction by the Administrative Agent to the contrary agreed to
by the Borrowers, be performed in accordance with GAAP as in effect on the
Closing Date. In the event that changes in GAAP shall be mandated by the
Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by the Borrowers' certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrowers and
the Lenders shall have amended this Agreement to the extent necessary to reflect
any such changes in the financial covenants and other terms and conditions of
this Agreement.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding, upon and inure
to the benefit of the Borrowers, the Administrative Agent and the Lenders, all
future holders of the Notes, or any part of the indebtedness evidenced thereby,
and their respective successors and assigns; provided, however, the Borrowers
shall not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Borrower (which consent shall only be required provided that no Default or Event
of Default has occurred) and the consent of the Administrative Agent, which
consents shall not be unreasonably withheld, assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of the Extensions of
Credit owing to such Lender and the Notes held by such Lender); provided that:
(i) each such assignment shall be of an equivalent, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement;
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(ii) if less than all of the assigning Lender's Commitment is to be
assigned, the Commitment so assigned shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance in the form of Exhibit F attached hereto (an
"Assignment and Acceptance"), together with any Notes or Letters of Credit
subject to such assignment;
(iv) such assignment shall not, without the consent of the Borrowers,
require the Borrowers to file a registration statement with the Securities and
Exchange Commission or apply to or qualify the Loans or the Notes under the blue
sky laws of any state; and
(v) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $3,500 upon such Lender's delivery of the Assignment and
Acceptance to the Administrative Agent; provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning and assuming Lender thereunder confirm
to and agree with each other and the other parties hereto to be bound by the
terms and provisions of this Agreement, to the extent set forth in such
Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amounts of the Commitment and the
Extensions of Credit with respect to each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time upon reasonable
prior notice.
(e) Issuance of New Notes. Upon its receipt of a completed Assignment and
Acceptance executed by the Borrowers, the assigning Lender and an Eligible
Assignee together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is substantially in the form of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii)give prompt notice thereof to the Lenders and the Borrowers; and
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(iv) promptly deliver a copy of such Assignment and Acceptance to the
Borrowers.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by such Eligible Assignee pursuant to
such Assignment and Acceptance; together with a new Note or Notes to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
the assigned Notes delivered to the assigning Lender; provided however, the new
Note or Notes may contain such language as the assigning Lender, the
Administrative Agent, or the Eligible Assignee may in the reasonable exercise of
its discretion, deem necessary to preserve the priority of the security interest
in the Collateral which is security for the Obligations. Each surrendered Note
or Notes shall be canceled and returned to the Borrowers.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less than
$5,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it for
all purposes of this Agreement;
(v) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement or any
other Loan Document other than waivers, amendments or modifications which would
reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Commitment, reduce the
amount of any fees to which such participant is entitled, extend any scheduled
payment date for principal of any Loan or, except as expressly contemplated
hereby or thereby, release substantially all of the Collateral; and
(vii) any such disposition shall not, without the consent of the
Borrowers, require the Borrowers to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
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(g) Disclosure of Information; Confidentiality. The Administrative Agent
and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law or requested
by any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 13.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrowers furnished to
such ▇▇▇▇▇ by or on behalf of the Borrowers; provided, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Borrowers or such Lender to preserve the
confidentiality of any confidential information relating to the Borrowers
received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth below,
any term, covenant, agreement or condition of this Agreement or any of the other
Loan Documents may be amended or waived by the Lenders if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and delivered
to the Administrative Agent and, in the case of an amendment, signed by the
Borrowers; provided, that no amendment, waiver or consent shall (a) increase the
amount or extend the time of the obligation of the Lenders to make Loans or
issue or participate in Letters of Credit (including without limitation pursuant
to Section 2.7); (b) extend the originally scheduled time or times of payment of
the principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest on any Loan or Reimbursement Obligation; (c) reduce the rate
of interest or fees payable on any Loan or Reimbursement Obligation; (d) reduce
the principal amount of any Loan or Reimbursement Obligation; (e) permit any
subordination of the principal or interest on any Loan or Reimbursement
Obligation; (f) permit any assignment (other than as specifically permitted or
contemplated in this Agreement) of any of the Borrower's rights and obligations
hereunder; (g) release any material portion of the Collateral or release any
Security Document (other than as specifically permitted or contemplated in this
Agreement or the applicable Security Document); or (h) amend the provisions of
this Section 13.11 or the definition of Required Lenders; unless each of the
Lenders has given their prior written consent to the course of action proposed
to be taken in (a) through (h) hereof. In addition, no amendment, waiver or
consent to the provisions of (a) Article XII shall be made without the written
consent of the Administrative Agent and (b) Article III without the written
consent of the Issuing Lender.
SECTION 13.12 Performance of Duties. The Borrowers' obligations under this
Agreement and each of the Loan Documents shall be performed by the Borrowers at
its sole cost and expense.
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SECTION 13.13 All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or this Agreement has not been
terminated.
SECTION 13.14 Survival of Indemnities. Any termination of this Agreement
notwithstanding, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this Agreement
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.17 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 13.18 Term of Agreement. This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations shall
have been indefeasibly and irrevocably paid, performed and satisfied in full.
The Administrative Agent is hereby permitted to release all Liens on the
Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder and the termination of the Lender's Commitments. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination.
SECTION 13.19 Inconsistencies with Other Documents; Independent Effect of
Covenants. (a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, however, that any provision of the Security Documents which
imposes additional burdens on the Borrowers or their Subsidiaries or further
restricts the rights of the Borrowers or their Subsidiaries or gives the
Administrative Agent or Lenders additional rights shall not be deemed to be in
conflict or inconsistent with this Agreement and such provisions shall be given
full force and effect.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
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Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrowers shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
SECTION 13.20 Amendment and Restatement. This Agreement is an amendment and
restatement of the Original Agreement between the Borrowers and First Union, and
it is not intended to be, nor shall it be construed as, a novation of the
Borrowers' responsibilities and obligations to First Union pursuant to the
Original Agreement. It is specifically acknowledged and agreed that the security
interests and rights granted to First Union pursuant to the Original Agreement,
are to continue in full force and effect (except to the extent, if any, modified
herein), and the priority and perfection of all such security interests in the
Collateral shall continue to date from the dates originally established in
connection with the Original Agreement.
(Remainder of page intentionally left blank - signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as Lender
By:________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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Schedule 1
(Lenders and Commitments)
LENDER COMMITMENT
PERCENTAGE COMMITMENT
First Union National Bank
PA 4848
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ 60% $15,000,000
KeyBank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ 40% $10,000,000
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
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$15,000,000 January 28, 2000
FOR VALUE RECEIVED, the undersigned, VERMONT PURE HOLDINGS, LTD. and
VERMONT PURE SPRINGS, INC. (the "Borrowers"), promise to pay to the order of
First Union National Bank (the "Lender"), at the place and times provided in the
Credit Agreement referred to below, the principal sum of Fifteen Million Dollars
($15,000,000) or, if less, the principal amount of all Revolving Credit Loans
made by the Lender from time to time pursuant to that certain Credit Agreement,
dated as of even date herewith (as amended, restated or otherwise modified, the
"'Credit Agreement") among the Borrowers, the Lenders who are or may become a
party thereto (collectively, the "Lenders") and First Union National Bank, as
Administrative Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit Agreement.
All payments of principal and interest on this Revolving Credit Note shall
be payable in lawful currency of the United States of America in immediately
available funds to the account designated in the Credit Agreement.
This Revolving Credit Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a description of the security for this Revolving Credit Note and for a statement
of the terms and conditions on which the Borrowers are permitted and required to
make prepayments and repayments of principal of the Obligations evidenced by
this Revolving Credit Note and on which such Obligations may be declared to be
immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF PENNSYLVANIA, WITHOUT REFERENCE TO THE CONFLICTS OR
CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Revolving Credit Note is senior in right of
payment to all Subordinated Debt referred to in the Credit Agreement.
The Borrowers hereby waive all requirements as to diligence, presentment,
demand of payment, protest and (except as required by the Credit Agreement)
notice of any kind with respect to this Revolving Credit Note.
After the occurrence of an Event of Default, as defined in the Credit
Agreement, each of the Borrowers jointly and severally irrevocably authorizes
and empowers any attorney or any clerk of any court of record to appear for and
confess judgment against any one or more of the Borrowers for such sums as are
due owing under this Note, with our without declaration, with costs of suit,
without stay of execution and with an amount not to exceed the greater of
fifteen percent (15%) of the principal amount owing under this Note, or Five
Thousand Dollars ($5,000) added for collection fees. If a copy of this Note,
verified by affidavit by or on behalf of the Lender shall have been filed in
such action, it shall not be necessary to file the original with this Note. The
authority granted under the warrant of attorney to confess judgment shall not be
exhausted by the initial exercise thereof, and may be exercised by the Lender
from time to time.
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IN WITNESS WHEREOF, the undersigned have executed this Revolving Credit
Note under seal as of the day and year first above written.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
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REVOLVING CREDIT NOTE
$10,000,000 January 28, 2000
FOR VALUE RECEIVED, the undersigned, VERMONT PURE HOLDINGS, LTD. and
VERMONT PURE SPRINGS, INC. (the "Borrowers"), promise to pay to the order of
KeyBank National Association (the "Lender"), at the place and times provided in
the Credit Agreement referred to below, the principal sum of Ten Million Dollars
($10,000,000) or, if less, the principal amount of all Revolving Credit Loans
made by the Lender from time to time pursuant to that certain Credit Agreement,
dated as of even date herewith (as amended, restated or otherwise modified, the
"'Credit Agreement") among the Borrowers, the Lenders who are or may become a
party thereto (collectively, the "Lenders") and First Union National Bank, as
Administrative Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit Agreement.
All payments of principal and interest on this Revolving Credit Note shall
be payable in lawful currency of the United States of America in immediately
available funds to the account designated in the Credit Agreement.
This Revolving Credit Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a description of the security for this Revolving Credit Note and for a statement
of the terms and conditions on which the Borrowers are permitted and required to
make prepayments and repayments of principal of the Obligations evidenced by
this Revolving Credit Note and on which such Obligations may be declared to be
immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF PENNSYLVANIA, WITHOUT REFERENCE TO THE CONFLICTS OR
CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Revolving Credit Note is senior in right of
payment to all Subordinated Debt referred to in the Credit Agreement.
The Borrowers hereby waive all requirements as to diligence, presentment,
demand of payment, protest and (except as required by the Credit Agreement)
notice of any kind with respect to this Revolving Credit Note.
After the occurrence of an Event of Default, as defined in the Credit
Agreement, each of the Borrowers jointly and severally irrevocably authorizes
and empowers any attorney or any clerk of any court of record to appear for and
confess judgment against any one or more of the Borrowers for such sums as are
due owing under this Note, with our without declaration, with costs of suit,
without stay of execution and with an amount not to exceed the greater of
fifteen percent (15%) of the principal amount owing under this Note, or Five
Thousand Dollars ($5,000) added for collection fees. If a copy of this Note,
verified by affidavit by or on behalf of the Lender shall have been filed in
such action, it shall not be necessary to file the original with this Note. The
authority granted under the warrant of attorney to confess judgment shall not be
exhausted by the initial exercise thereof, and may be exercised by the Lender
from time to time.
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IN WITNESS WHEREOF, the undersigned have executed this Revolving Credit
Note under seal as of the day and year first above written.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
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EXHIBIT B
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.,
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF BORROWING
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NOTICE OF BORROWING
Dated as of______________
First Union National Bank,
PA 4848
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:_____________________
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you under Section
2.3(a) of the Credit Agreement dated as of , 1999 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among VERMONT PURE HOLDINGS,
LTD. and VERMONT PURE SPRINGS, INC. (the "Borrowers"), the lenders party thereto
(the "Lenders") and First Union National Bank, as Administrative Agent.
1. The Borrowers hereby request that the Lenders make a Revolving Credit
Loan to the Borrowers in the aggregate principal amount of $ . [Complete with an
amount in accordance with Section 2.2(a) of the Credit Agreement.]
2. The Borrowers hereby requests that such Loan be made on the following
Business Day: . [Complete with a Business Day in accordance with Section 2.2(a)
of the Credit Agreement.]
3. The Borrowers hereby requests that the Revolving Credit Loan bear
interest at the following interest rate, plus the Applicable Margin, if
applicable, as set forth below:
Component of Loan Interest Rate Interest Period Termination Date for
(LIBOR Rate only) Interest Period (if
applicable)
Base Rate or
LIBOR Rate
4. The principal amount of all Loans and L/C Obligations outstanding as of
the date hereof (including the requested Loan) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
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5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Notice of Borrowing
on behalf of the Borrowers this day of , .
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-85-
EXHIBIT C
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
-86-
NOTICE OF ACCOUNT DESIGNATION
Dated as of:____________
First Union National Bank, as Administrative Agent
PA 4848
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Attention:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you under Section 2.2(b)
of the Credit Agreement dated as of , 1999 (as amended, restated or otherwise
modified, the "Credit Agreement") by and among, VERMONT PURE HOLDINGS, LTD. and
VERMONT PURE SPRINGS, INC. (the "Borrowers"), the lenders party thereto (the
"Lenders") and First Union National Bank, as Administrative Agent.
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
___________________________________
ABA Routing Number:________________
Account Number:____________________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of Account
Designation this _____day of _______________, _____.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-87-
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-88-
EXHIBIT D
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF PREPAYMENT
-89-
NOTICE OF PREPAYMENT
Dated as of:_____________
First Union National Bank, as Administrative Agent
PA 4848
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Attention:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you under Section
2.3(c) of the Credit Agreement dated as of , 1999 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among, VERMONT PURE
HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC. (the "Borrowers"), the lenders
party thereto (the "Lenders") and First Union National Bank, as Administrative
Agent.
1. The Borrowers hereby provides notice to the Administrative Agent that it
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans]: .
(Complete with an amount in accordance with Section 2.3 of the Credit
Agreement.)
2. The Loan to be prepaid is a Revolving Credit Loan.
3. The Borrowers shall repay the above-referenced Loans on the following
Business Day: . (Complete with a Business Day at least one (1) Business Day
subsequent to the date of this Notice of Prepayment with respect to any Base
Rate Loan that is a Revolving Credit Loan and three (3) Business Days subsequent
to date of this Notice of Prepayment with respect to any LIBOR Rate Loan that is
a Revolving Credit Loan.)
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of Prepayment
this _____day of ____________, ______.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-90-
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-91-
EXHIBIT E
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
-92-
NOTICE OF CONVERSION/CONTINUATION
Dated as of:_________________
First Union National Bank, as Administrative Agent
PA 4848
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Attention:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 4.2 of the Credit Agreement dated as of , , 1999
(as amended, restated or otherwise modified, the "Credit Agreement"), by and
among VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC. (the
"Borrowers"), the lenders party thereto (the "Lenders") and First Union National
Bank, as Administrative Agent.
1. This Notice is submitted for the purpose of. (Check one and complete
applicable information in accordance with the Credit Agreement.)
* Converting all or a portion of a Base Rate Loan into a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such Loan is $ .
(b) The principal amount of such Loan to be converted is $ .
(c) The requested effective date of the conversion of such Loan is , .
(d) The requested Interest Period applicable to the converted Loan is
months.
* Converting a portion of LIBOR Rate Loan into a Base Rate Loan
-93-
(a) The aggregate outstanding principal balance of such Loan is $ .
(b) The last day of the current Interest Period for such Loan is , .
(c) The principal amount of such Loan to be converted is $ .
(d) The requested effective date of the conversion of such Loan is , .
* Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such Loan is $ .
(b) The last day of the current Interest Period for such Loan is , .
(c) The principal amount of such Loan to be continued is $ .
(d) The requested effective date of the continuation of such Loan is , .
(e) The requested Interest Period applicable to the continued Loan is
_______ months.
2. The principal amount of all Loans and L/C Obligations outstanding as of
the date hereof does not exceed the maximum amount permitted to be outstanding
pursuant to the terms of the Credit Agreement.
3. All of the conditions applicable to the conversion or continuation of
the Loan requested herein as set forth in the Credit Agreement have been
satisfied or waived as of the date hereof and will remain satisfied or waived to
the date of such Loan.
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/ Continuation this ____day of ________________, _____.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-94-
EXHIBIT F
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
-95-
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of VERMONT PURE HOLDINGS, LTD. and VERMONT PURE
SPRINGS, INC. (the "Borrowers"), hereby certify to the Administrative Agent and
the Lenders each as defined in the Credit Agreement referred to below, as
follows:
1. This Certificate is delivered to you pursuant to Section 7.2 of the
Credit Agreement dated as of , 1999 (as amended, restated or otherwise modified,
the "Credit Agreement"), by and among the Borrowers, the lenders party thereto
(the "Lenders") and First Union National Bank, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Borrowers and their
Subsidiaries dated as of and for the period[s] then ended and such statements
fairly present in all material respects the financial condition of the Borrowers
and its Subsidiaries as of the dates indicated and the results of their
operations and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, and the related Loan
Documents and have made, or caused to be made under my supervision, a review in
reasonable detail of the transactions and the condition of the Borrowers and
their Subsidiaries during the accounting period covered by the financial
statements referred to in Paragraph 2 above. Such review has not disclosed the
existence during or at the end of such accounting period of any condition or
event that constitutes a Default or an Event of Default, nor do I have any
knowledge of the existence of any such condition or event as at the date of this
Certificate [except, if such condition or event existed or exists, describe the
nature and period of existence thereof and what action the Borrowers have taken,
is taking and proposes to take with respect thereto].
4. The Applicable Margin and calculations determining such figure are set
forth on the attached Schedule 1 and the Borrowers and their Subsidiaries are in
compliance with the financial covenants contained in Article IX of the Credit
Agreement as shown on such Schedule 1 and the Borrowers and their Subsidiaries
are in compliance with the other covenants and restrictions contained in the
Credit Agreement.
WITNESS the following signatures as of the____day of __________,____.
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-96-
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
-97-
Schedule 1
to
Officer's Compliance Certificate
-98-
EXHIBIT G
to
Credit Agreement
dated as of January 28, 2000,
by and among
VERMONT PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC.
as Borrowers,
the Lenders party thereto,
and
First Union National Bank,
as Administrative Agent
FORM OF ASSIGNMENT AND ACCEPTANCE
-99-
ASSIGNMENT AND ACCEPTANCE
Dated as of:__________________
Reference is made to the Credit Agreement dated as of , 1999 as amended,
restated or otherwise modified (the "Credit Agreement") by and among VERMONT
PURE HOLDINGS, LTD. and VERMONT PURE SPRINGS, INC. (the "Borrowers"), the
lenders party thereto (the "Lenders") and First Union National Bank, as
Administrative Agent. Capitalized terms used herein which are not defined herein
shall have the meanings assigned thereto in the Credit Agreement.
_______________________ (the "Assignor") and _________________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, as of the Effective Date (as
defined below), a % interest in and to all of the Assignor's interest, rights
and obligations with respect to its Revolving Credit Commitment and Revolving
Credit Loans (including such percentage of the outstanding L/C Obligations) and
the Assignor thereby retains % of its interest therein. This Assignment and
Acceptance is entered pursuant to, and authorized by, Section 13.10 of the
Credit Agreement.
2. The Assignor (i) represents that, as of the date hereof, its Commitment
Percentage (without giving effect to assignments thereof which have not yet
become effective) under the Credit Agreement is %, the outstanding balances of
its Revolving Credit Loans (including its Revolving Credit Commitment Percentage
of the outstanding L/C Obligations) (unreduced by any assignments thereof which
have not yet become effective) under the Credit Agreement is $ ; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers or their Subsidiaries
or the performance or observance by the Borrowers or their Subsidiaries of any
of their obligations under the Credit Agreement or any other instrument or
document furnished or executed pursuant thereto; and (iv) attaches the Revolving
Credit Note delivered to it under the Credit Agreement and requests that the
Borrowers exchange such Revolving Credit Note for new Revolving Credit Notes
payable to each of the Assignor and the Assignee as follows:
-100-
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
_______________________ $_______________________
_______________________ $_______________________
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor or any other
Lender or Administrative Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iv) confirms that it is
an Eligible Assignee; (v) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
and the other Loan Documents are required to be performed by it as a Lender;
(vii) agrees to hold all confidential information in a manner consistent with
the provisions of Section 13.10(g) of the Credit Agreement; and (viii) includes
herewith for the Administrative Agent the two forms required by Section 4.11(e)
of the Credit Agreement (if not previously delivered).
4. The effective date for this Assignment and Acceptance shall be as set
forth in Section 1 of Schedule 1 hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for, to the extent required by the Credit Agreement,
consent by the Borrowers and the Administrative Agent and acceptance and
recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT UNDER
SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
-101-
WITNESS the following signatures as of the _______ day of ______, ________.
ASSIGNOR:
By:______________________________
Title:___________________________
ASSIGNEE:
By:______________________________
Title:___________________________
-102-
Acknowledged and Consented to on behalf of the Borrowers:
ATTEST: VERMONT PURE HOLDINGS, LTD.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
ATTEST: VERMONT PURE SPRINGS, INC.,
as Borrower
By:_______________________________ By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer and Title: Chief Executive Officer and
Secretary President
(Corporate Seal)
Consented to and Accepted by:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:_______________________________
Name:_____________________________
Title:____________________________
-103-
Schedule 1
to
Assignment and Acceptance
1. Effective Date __________________, _____
2. Assignor's Interest Prior to Assignment
(a) Revolving Credit Commitment Percentage _______%
(b) Outstanding balance of Revolving Credit Loans $_____________
(c) Outstanding balance of Assignor's Revolving
Credit Commitment Percentage of the L/C
Obligations $_____________
3. Assigned Interest (from Section
1) of Revolving Credit Loans _______%
4. Assignee's Extensions of Credit After Effective Date
(a) Total outstanding balance of Assignee's
Revolving Credit Loans (line 2(b) times line 3) $_____________
(b) Total outstanding balance of Assignee's
Revolving Credit Commitment Percentage of
the L/C Obligations (line 2(c) times line 3) $_____________
5. Retained Interest of Assignor after Effective Date
(a) Retained Interest (from Section 1) of Revolving
Credit Commitment Percentage $______________
(b) Outstanding balance of Assignor's Revolving
Credit Loans (line 2(b) times line 5(a)) $______________
(c) Outstanding balance of Assignor's Revolving
Credit Commitment Percentage of L/C Obligations
(line 2(c) times line 5(a)) $______________
-104-
6. Payment Instructions
(a) If payable to Assignor, to the account of Assignor to:
_______________________________________________
_______________________________________________
ABA No.:_______________________________________
Account Name:__________________________________
Account No.:___________________________________
Attn:__________________________________________
Ref:___________________________________________
(b) If payable to Assignee, to the account of Assignee to:
_______________________________________________
_______________________________________________
ABA No.:_______________________________________
Account Name:__________________________________
Account No.:___________________________________
Attn:__________________________________________
Ref:___________________________________________
-105-