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EXHIBIT 4.1
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CREDIT AGREEMENT
by and among
WACKENHUT CORRECTIONS CORPORATION
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and as Lender,
SCOTIABANC INC.
▇▇▇▇▇▇▇ BANK, N.A.,
as Co-Agents and as Lenders,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
June 19, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions..............................................................................................2
1.2. Rules of Interpretation.................................................................................24
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.........................................................................................26
2.2. Payment of Interest.....................................................................................30
2.3. Payment of Principal....................................................................................30
2.4. Non-Conforming Payments.................................................................................30
2.5. Notes...................................................................................................31
2.6. Pro Rata Payments.......................................................................................31
2.7. Reductions..............................................................................................31
2.8. Conversions and Elections of Subsequent Interest Periods................................................32
2.9. Increase and Decrease in Amounts........................................................................32
2.10. Facility Fees...........................................................................................33
2.11. Deficiency Advances.....................................................................................33
2.12. Use of Proceeds.........................................................................................33
2.13. Extension of Stated Termination Date....................................................................33
2.14. Swing Line..............................................................................................34
ARTICLE III
Letters of Credit
3.1. Letters of Credit.......................................................................................36
3.2. Reimbursement...........................................................................................36
3.3. Letter of Credit Facility Fees..........................................................................40
3.4. Administrative Fees.....................................................................................40
ARTICLE IV
Change in Circumstances
4.1. Increased Cost and Reduced Return.......................................................................41
4.2. Limitation on Types of Loans............................................................................42
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4.3. Illegality..............................................................................................42
4.4. Treatment of Affected Loans.............................................................................43
4.5. Compensation............................................................................................43
4.6. Taxes...................................................................................................44
4.7. Replacement Banks.......................................................................................45
4.8. Lending Office..........................................................................................46
ARTICLE V
Conditions to Making Loans and Issuing Letters of Credit
5.1. Conditions of Initial Advance..........................................................................47
5.2. Conditions of Revolving Loans and Letter of Credit......................................................49
ARTICLE VI
Representations and Warranties
6.1. Organization and Authority..............................................................................51
6.2. Loan Documents..........................................................................................51
6.3. Solvency................................................................................................52
6.4. Subsidiaries and Stockholders...........................................................................52
6.5. Ownership Interests.....................................................................................52
6.6. Financial Condition.....................................................................................52
6.7. Title to Properties.....................................................................................53
6.8. Taxes...................................................................................................53
6.9. Other Agreements........................................................................................53
6.10. Litigation..............................................................................................53
6.11. Margin Stock............................................................................................54
6.12. Investment Company......................................................................................54
6.13. Patents, Etc............................................................................................54
6.14. No Untrue Statement.....................................................................................54
6.15. No Consents, Etc........................................................................................54
6.16. Employee Benefit Plans..................................................................................55
6.17. No Default..............................................................................................56
6.18. Hazardous Materials.....................................................................................56
6.19. Employment Matters......................................................................................56
6.20. RICO....................................................................................................56
ARTICLE VII
Affirmative Covenants
7.1. Financial Reports, Etc..................................................................................58
7.2. Maintain Properties.....................................................................................59
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7.3. Existence, Qualification, Etc...........................................................................59
7.4. Regulations and Taxes...................................................................................59
7.5. Insurance...............................................................................................60
7.6. True Books..............................................................................................60
7.7. Right of Inspection.....................................................................................60
7.8. Observe all Laws........................................................................................60
7.9. Governmental Licenses...................................................................................60
7.10. Covenants Extending to Other Persons....................................................................60
7.11. Officer's Knowledge of Default..........................................................................60
7.12. Suits or Other Proceedings..............................................................................61
7.13. Notice of Discharge of Hazardous Material or Environmental Complaint....................................61
7.14. Environmental Compliance................................................................................61
7.15. Indemnification.........................................................................................61
7.16. Further Assurances......................................................................................62
7.17. Employee Benefit Plans..................................................................................62
7.18. Continued Operations....................................................................................62
7.19. Additional Support Documents............................................................................63
ARTICLE VIII
Negative Covenants
8.1. Financial Covenants.....................................................................................64
8.2. Acquisitions............................................................................................65
8.3. Capital Expenditures....................................................................................65
8.4. Liens...................................................................................................65
8.5. Indebtedness............................................................................................66
8.6. Transfer of Assets......................................................................................67
8.7. Investments.............................................................................................67
8.8. Merger or Consolidation.................................................................................67
8.9. Restricted Payments.....................................................................................68
8.10. Transactions with Affiliates............................................................................68
8.11. Compliance with ERISA...................................................................................68
8.12. Fiscal Year.............................................................................................69
8.13. Dissolution, etc........................................................................................69
8.14. Limitations on Sales and Leasebacks.....................................................................69
8.15. Change in Control.......................................................................................69
8.16. [Reserved]
8.17. Negative Pledge Clauses................................................................................69
8.18. Prepayments, Etc. of Indebtedness.......................................................................70
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ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default.......................................................................................71
9.2. Agent to Act............................................................................................74
9.3. Cumulative Rights.......................................................................................74
9.4. No Waiver...............................................................................................74
9.5. Allocation of Proceeds..................................................................................74
9.6. Limitation..............................................................................................75
ARTICLE X
The Agent
10.1. Appointment, Powers, and Immunities.....................................................................76
10.2. Reliance by Agent.......................................................................................76
10.3. Defaults................................................................................................77
10.4. Rights as Lender........................................................................................77
10.5. Indemnification.........................................................................................77
10.6. Non-Reliance on Agent and Other Lenders.................................................................78
10.7. Resignation of Agent....................................................................................78
10.8. Sharing of Payments, etc................................................................................78
10.9. Fees....................................................................................................79
ARTICLE XI
Miscellaneous
11.1. Assignments and Participations..........................................................................80
11.2. Notices.................................................................................................82
11.3. Right of Set-off; Adjustments...........................................................................83
11.4. Survival................................................................................................84
11.5. Expenses................................................................................................84
11.6. Amendments and Waivers..................................................................................84
11.7. Counterparts............................................................................................85
11.8. Termination.............................................................................................85
11.9. Indemnification.........................................................................................85
11.10. Severability............................................................................................86
11.11. Entire Agreement........................................................................................86
11.12. Agreement Controls......................................................................................86
11.13. Usury Savings Clause....................................................................................86
11.14. Governing Law; Waiver of Jury Trial.....................................................................87
11.15. Judgment Currency.......................................................................................88
11.16. Economic and Monetary Union in the European Community...................................................88
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11.17. Confidentiality.........................................................................................89
EXHIBIT A Applicable Revolving Credit Commitment Percentages...................................................A-1
EXHIBIT B Form of Assignment and Acceptance....................................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative...................................C-1
EXHIBIT D-1 Form of Borrowing Notice..........................................................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans........................................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice................................................................E-1
EXHIBIT F-1 Form of Revolving Note............................................................................F-1-1
EXHIBIT F-2 Form of Swing Line Note...........................................................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel.................................................................G-1
EXHIBIT H Compliance Certificate................................................................................H-1
EXHIBIT I Form of Facility Guaranty.............................................................................I-1
EXHIBIT J Form of LC Account Agreement..........................................................................J-1
Schedule 6.4 Subsidiaries and Investments in Other Persons......................................................S-1
Schedule 6.6 Indebtedness.......................................................................................S-2
Schedule 6.7 Liens..............................................................................................S-3
Schedule 6.10 Litigation........................................................................................S-4
Schedule 7.5 Insurance.........................................................................................S-5
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June __, 1997 (the "Agreement"), is
made by and among WACKENHUT CORRECTIONS CORPORATION, a Florida corporation
having its principal place of business in Palm Beach Gardens, Florida (the
"Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in its capacity as a
Lender ("NationsBank"), and each other financial institution executing and
delivering a signature page hereto and each other financial institution which
may hereafter execute and deliver an instrument of assignment with respect to
this Agreement pursuant to Section 11.1 (hereinafter such financial institutions
may be referred to individually as a "Lender" or collectively as the "Lenders"),
and NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, in its capacity as agent for
the Lenders (in such capacity, and together with any successor agent appointed
in accordance with the terms of Section 10.7, the "Agent");
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a multi-currency revolving credit facility of up to $30,000,000,
the proceeds of which are to be used for working capital, acquisitions, and
general corporate purposes and which shall include a letter of credit facility
of up to $10,000,000 for the issuance of standby letters of credit; and
WHEREAS, the Lenders are willing to make such revolving credit and letter
of credit facilities available to the Borrower upon the terms and conditions set
forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
Definitions and Terms
1.1. Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of a line or lines
of business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Advance Date Exchange Rate" means, with respect to a
specified Advance or Loan in an Alternative Currency, the Spot Rate of
Exchange as of the date two Business Days preceding the date such
Advance is originally made, provided that, if such Advance or Loan is
Continued for a subsequent Interest Period or Converted pursuant to
Section 2.8, the Advance Date Exchange Rate with respect to such Loan
shall be the Spot Rate of Exchange two Business Days preceding the
effective date of the latest Continuation or Conversion of such Advance
or Loan, and the Dollar Value of such Advance or Loan shall be adjusted
as set forth in Section 2.1(b).
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of the Borrower; or 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Alternative Currency" means Pounds Sterling, Australian
Dollars, Canadian Dollars, Euro Currency and with the prior written
consent of all Lenders and the Agent, any other lawful currency other
than Dollars which is freely transferable and convertible into Dollars
in the United States currency market; provided, however, that an
Alternative Currency shall only be available to the Borrower if each
Lender shall have determined (which determination shall be conclusive)
that it has access to such Alternative Currency on terms reasonably
acceptable to such Lender and that the Alternative Currency is freely
transferable and convertible into Dollars.
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"Alternative Currency Equivalent Amount" means with respect to
a specified Alternative Currency and a specified Dollar amount, the
amount of such Alternative Currency into which such Dollar amount would
be Converted, based on the applicable Advance Date Exchange Rate.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, a fraction, the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
Exhibit A; provided that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with Section 11.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means for each Eurodollar Rate Loan, or
Swing Line Loan, that percent per annum set forth below, which shall be
based upon the Consolidated Debt Service Coverage Ratio for the
Four-Quarter Period most recently ended as specified below:
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Tier Consolidated Debt Service Applicable Margin
Coverage Ratio
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I Equal to or greater than 4.00 to 1.00 0.375%
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II Equal to or greater than 3.25 to 1.00 0.450%
and less than 4.00 to 1.00
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III Equal to or greater than 2.75 to 1.00 0.625%
and less than 3.25 to 1.00
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IV Equal to or greater than 2.00 to 1.00 0.875%
and less than 2.75 to 1.00
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The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 7.1(a)(ii) and Section
7.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the date following the date
such certificate is received (or, if earlier, the date such certificate
was required to be delivered) until the date following the date on
which a
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new certificate is delivered or is required to be delivered, whichever
shall first occur; provided however, if the Borrower shall fail to
deliver any such certificate within five (5) days after the time period
required by Section 7.1, then the Applicable Margin shall be Tier IV
from the date such certificate was required to be delivered until the
appropriate certificate is so delivered. From the Closing Date to the
date following the date on which the compliance certificate required by
Section 7.1(b)(ii) is delivered for the third (3rd) quarter of fiscal
year 1997, the Applicable Margin shall be Tier II.
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Debt Service Coverage
Ratio for the Four-Quarter Period most recently ended as specified
below:
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Tier Consolidated Debt Service Applicable Unused Fee
Coverage Ratio
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I Equal to or greater than 4.00 to 1.00 0.125%
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II Equal to or greater than 3.25 to 1.00 0.150%
and less than 4.00 to 1.00
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III Equal to or greater than 2.75 to 1.00 0.200%
and less than 3.25 to 1.00
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IV Equal to or greater than 2.00 to 1.00 0.250%
and less than 2.75 to 1.00
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The Applicable Unused Fee shall be established on each Determination
Date. Any change in the Applicable Unused Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to Section
7.1(a)(ii) and Section 7.1(b)(ii), subject to review and approval of
such computations by the Agent and shall be effective commencing on the
date following the date such certificate is received (or, if earlier,
the date such certificate was required to be delivered) until the date
following the date on which a new certificate is delivered or is
required to be delivered, whichever shall first occur; provided
however, if the Borrower shall fail to deliver any such certificate
within five (5) days after the time period required by Section 7.1,
then the Applicable Unused Fee shall be Tier IV from the date such
certificate was required to be delivered until the appropriate
certificate is so delivered. From the Closing Date to the date
following the date on which the compliance certificate required by
Section 7.1(b)(ii) is delivered for the third (3rd) quarter of fiscal
year 1997, the Applicable Margin shall be Tier II.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
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"Assessment Rate" means, for any day, the annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) which
is payable by the Agent (in its individual capacity) to the Federal
Deposit Insurance Corporation (or any successor) for deposit insurance
for Dollar time deposits with the Agent (in its individual capacity) at
its Principal Office as determined by the Agent. The CD Rate shall be
adjusted automatically on and as of the effective date of any change in
the Assessment Rate.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) executed and delivered to the Agent by the parties thereto in
connection with an assignment of a Lender's interest under this
Agreement pursuant to Section 11.1.
"Australian Dollars" means the official currency of Australia.
"Authorized Representative" means any of the Chief Executive
Officer, President, any Senior Vice President or Controller of the
Borrower or, with respect to financial matters, the chief financial
officer or Controller of the Borrower, or any other Person expressly
designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of Exhibit C.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (b) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Dollar denominated Loan for which the
rate of interest is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made either
to (i) satisfy Reimbursement Obligations arising from a drawing under a
Letter of Credit or (ii) pay NationsBank in respect of Swing Line
Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
[_____________________] or any successor account with the Agent, which
may be maintained at one or more offices of the Agent or an agent of
the Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of Exhibits D-1 and D-2,
respectively.
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"Business Day" means, (i) with respect to any Floating Rate
Loan, any day which is not a Saturday, Sunday or a day on which banks
in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed,
and (ii) with respect to any Eurodollar Rate Loan, any day which is a
Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Canadian Dollar" means the official currency of Canada.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 7.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such Capital Lease
(or in the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in Section 7.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"CD Rate" means the interest rate per annum calculated
according to the following formula:
CD = Floating CD Rate + Assessment + Applicable
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Rate 1 - Reserve Requirement Rate Margin
"CD Rate Loans" means Loans that bear interest at rates based
upon the CD Rate.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Stock of the
Borrower (or securities convertible into or exchangeable for
such Voting Stock)
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representing 20% or more of the combined voting power of all
Voting Stock of the Borrower (on a fully diluted basis) or (B)
otherwise has the ability, directly or indirectly, to elect a
majority of the board of directors of the Borrower; provided,
however, that this subsection shall apply only to any "person"
or "group" (each as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) who does not qualify hereunder as of the
Closing Date.
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 5.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to in
Section 6.6(a).
"Consolidated Debt Service" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the sum of, without duplication, (i)
Consolidated Interest Expense and (ii) Consolidated Lease Payments for
such period, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Debt Service Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for any Four-Quarter-Period ending
on the date of computation thereof, the ratio of (i) Consolidated
EBITDA plus Consolidated Lease Payments for such period to (ii)
Consolidated Debt Service for such period.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without
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duplication, (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) taxes on income, (iv) amortization, and (v)
depreciation, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for any Four-Quarter Period ending
on the date of computation thereof, the ratio of (i) Consolidated
EBITDA plus Consolidated Lease Payments for such period to (ii)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Interest Expense, (ii) required principal payments of Consolidated
Indebtedness, (iii) Consolidated Lease Payments for such period and
(iv) all Restricted Payments, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries plus all TROL
Indebtedness, all determined on a consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement and Letters of
Credit) payable in connection with the incurrence of Indebtedness to
the extent included in gross interest expense and (iii) the portion of
any payments made in connection with Capital Leases allocable to
interest expense, in each of the foregoing cases determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; provided that Consolidated Interest Expense shall not include
payments with respect to the TROL Leases.
"Consolidated Lease Payments" means the gross amount of all
lease or rental payments, whether or not characterized as rent,
including rental payments under TROL Leases of the Borrower and its
Subsidiaries, excluding payments in respect of Capital Leases
constituting Indebtedness, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA plus all
payments with respect to TROL Indebtedness which are in the nature of
interest (for the Four-Quarter Period ending on (or most recently ended
prior to) such date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
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distributions, including management fees, made in the ordinary course
of their businesses by a Special Purpose Subsidiary or other Persons in
which investment is permitted pursuant to this Agreement, less all
operating and non-operating expenses of the Borrower and its
Subsidiaries including taxes on income, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; but excluding (for all purposes other than compliance with
Section 8.1(a) hereof) as income: (i) net gains or losses on the sale,
conversion or other disposition of capital assets, (ii) net gains or
losses on the acquisition, retirement, sale or other disposition of
capital stock and other securities of the Borrower or its Subsidiaries,
(iii) net gains or losses on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any other
net gain or loss or credit or debit of an extraordinary nature as
determined in accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity
minus (without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) all reserves
(other than contingency reserves not allocated to any particular
purpose), including without limitation reserves for depreciation,
depletion, amortization, obsolescence, deferred income taxes, insurance
and inventory valuation all as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (i) the amount of issued
and outstanding share capital, plus (ii) the amount of additional
paid-in capital and retained earnings (or, in the case of a deficit,
minus the amount of such deficit), plus (iii) the amount of any foreign
currency translation adjustment (if positive, or, if negative, minus
the amount of such translation adjustment), minus (iv) the amount of
any treasury stock, all as determined in accordance with GAAP applied
on a Consistent Basis.
"Consolidated Total Assets" means, as of the date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Capitalization" means, as of any date on
which the amount thereof is to be determined, the sum of Consolidated
Indebtedness plus Consolidated Shareholders' Equity.
"Contingent Obligation" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement
to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss)
the Indebtedness of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other
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Person. The amount of any Person's obligation under any Contingent
Obligation shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness guaranteed thereby).
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.8 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.8 or Article IV of one Type of Loan
into another Type of Loan.
"Cost of an Acquisition" means, with respect to any
Acquisition, as at the date of entering into any agreement therefor,
the sum of the following (without duplication): (i) the value of the
capital stock, warrants or options to acquire capital stock of Borrower
or any Subsidiary to be transferred in connection therewith, (ii) the
amount of any cash and fair market value of other property (excluding
property described in clause (i) and the unpaid principal amount of any
debt instrument) given as consideration, (iii) the amount (determined
by using the face amount or the amount payable at maturity, whichever
is greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Floating Rate
Loans, at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, and (iii) in any case, the maximum rate permitted
by applicable law, if lower.
"Direct Foreign Subsidiary" means any Subsidiary of the
Borrower that is not a Domestic Subsidiary a majority of whose
outstanding Voting Stock is owned by the Borrower or a Domestic
Subsidiary.
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"Dollar Equivalent Amount" means, with respect to a specified
Alternative Currency amount, the amount of Dollars into which the
Alternative Currency amount would be converted, based on the applicable
Advance Date Exchange Rate.
"Dollar Value" of an Advance or a Loan in an Alternative
Currency means the Dollar Equivalent Amount of the principal amount of
such Advance or Loan based on the Advance Date Exchange Rate with
respect to such Advance or Loan, as recorded in the Agent's records
pursuant to Section 2.1.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America or a state or
territory thereof.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.1; the Borrower,
such approval not to be unreasonably withheld or delayed by the
Borrower, it being agreed that Borrower may withhold its approval if as
a result of such assignment the Borrower incurs increased cost under
Section 4.6; provided, however, that neither the Borrower nor an
affiliate of the Borrower shall qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 270 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated
"A-3" or better by S&P or "A" or better by ▇▇▇▇▇'▇;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
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(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A" or better by S&P or "A- 3" or better by
▇▇▇▇▇'▇; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates or is assumed
by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of the Borrower or any current or former ERISA Affiliate.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law."
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Euro Currency" means the official currency, if any, of the
European Union.
"Eurodollar Rate Loan" means Loans that bear interest at rates
based upon the Eurodollar Rate.
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"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
------------------------
Rate 1 - Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Facility Guaranty" means each Guaranty and Suretyship
Agreement between one or more Guarantors and the Agent for the benefit
of the Lenders, delivered as of the Closing Date and otherwise pursuant
to Section 7.19, as the same may be amended, modified or supplemented.
"Facility Termination Date" means the date on which the
Revolving Credit Termination Date shall have occurred, no Letters of
Credit shall remain outstanding and the Borrower shall have fully,
finally and irrevocably paid and satisfied all Obligations.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on the Monday after the Sunday
closest to the calendar year end of each calendar year and ending on
the Sunday closest to the calendar year end of each calendar year.
"Floating CD Rate" means, for any CD Rate Loan, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be the average of the bid rates quoted to
the Agent at approximately 10:00 a.m. (or as soon thereafter as
practicable) by two (2) or more certificate of deposit dealers of
recognized national standing selected by the Agent for the purchase at
face value of certificates of deposit of the Agent having a term of
ninety (90) days and in an amount comparable to the principal amount of
the CD Loan to be made by the Agent.
"Floating Rate Loan" means Base Rate Loans or CD Rate Loans or
both.
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"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"Funding Bank" means any banking institution approved by the
Agent located within a country which country's currency has been
approved by the Lenders as an Alternative Currency.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Subsidiaries who are
required to be parties to a Facility Guaranty at such date.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations, including letters of credit, that portion of
obligations with respect to Capital Leases and other items which in
accordance with GAAP is required
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to be classified as a liability on a balance sheet; but excluding all
accounts payable and accruals in the ordinary course of business so
long as payment therefor is due within one year; provided that in no
event shall the term Indebtedness include surplus and retained
earnings, lease obligations (other than pursuant to Capital Leases),
reserves for deferred income taxes and investment credits, other
deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation all Capital Leases and the
deferred purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written obligation for the
payment of money (including conditional sales or similar title
retention agreements), other than trade payables and short-term
accounts payable incurred in the ordinary course of business.
"Interbank Offered Rate" means, for any Eurodollar Rate Loan
for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Eurodollar Rate" shall mean, for any Eurodollar
Rate Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted and ending, at the Borrower's option, on the date one, two,
three or six months and nine months, if available, thereafter as
notified to the Agent by the Authorized Representative three (3)
Business Days prior to the beginning of such Interest Period; provided,
that,
(i) if the Authorized Representative fails to
notify the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar Rate
Loan would end on a day which is not a Business Day, such
Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case
such Interest Period shall end on the next preceding Business
Day);
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(iii) any Interest Period which 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 a calendar month;
(iv) no Interest Period shall extend past the
Stated Termination Date; and
(v) there shall not be more than seven (7)
Interest Periods in effect on any day.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"Issuing Bank" means initially NationsBank and thereafter any
Lender which is successor to NationsBank as issuer of Letters of Credit
under Article III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Letter of Credit" means a standby letter of credit issued by
the Issuing Bank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount remaining undrawn under all Letters
of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
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from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any borrowing pursuant to an Advance
under the Revolving Credit Facility.
"Loan Documents" means this Agreement, the Notes, the Pledge
Agreements, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender or the Agent in connection with the Loans
made and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from time to time.
"Loan Parties" means the Borrower and the Guarantors.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrower and any of its Subsidiaries, taken as a
whole, (ii) the ability of the Loan Parties to pay or perform their
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof.
"Material Subsidiary" means Domestic Subsidiaries and Direct
Foreign Subsidiaries of Borrower existing on the Closing Date and in
the case of any Domestic Subsidiary or Direct Foreign Subsidiary
acquired or created after the Closing Date any direct or indirect
Domestic Subsidiary or Direct Foreign Subsidiary of the Borrower which
(i) has total assets equal to or greater than 5% of Consolidated Total
Assets (calculated as of the most recent fiscal period with respect to
which the Agent shall have received financial statements required to be
delivered pursuant to Sections 8.01(a) or (b) (or if prior to delivery
of any financial statements pursuant to such Sections, then calculated
with respect to the Fiscal Year end financial statements referred in
Section 7.01(f) (the "Required Financial Information")) or (ii) has
revenues equal to or greater than 5% of total revenues of the Borrower
and its Subsidiaries (calculated for the most recent period for which
the Agent has received the Required Financial Information); provided,
however, that notwithstanding the foregoing, the term "Material
Subsidiaries" shall mean Domestic Subsidiaries and Direct Foreign
Subsidiaries of the Borrower that together with the Borrower have
assets equal to not less than 80% of Consolidated Total Assets
(calculated as described above) and revenues of not less than 80% of
total revenues of the Borrower and its Subsidiaries (calculated as
described above); provided further that if more than one combination of
Domestic Subsidiaries and Direct Foreign Subsidiaries satisfies such
threshold, then those Domestic Subsidiaries and
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Direct Foreign Subsidiaries determined by the Borrower to be "Material
Subsidiaries" shall be specified by the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"NationsBank" means NationsBank, National Association.
"NCMI" means NationsBanc Capital Markets, Inc. and its
successors.
"Non-Recourse Indebtedness" means Indebtedness of a Special
Purpose Subsidiary the source of payment of which as it relates to such
Special Purpose Subsidiary is limited to the assets of such Special
Purpose Subsidiary or any other Special Purpose Subsidiary.
"Notes" means, collectively, the promissory notes of the
Borrower evidencing (i) Revolving Loans executed and delivered to the
Lenders substantially in the form of Exhibit F- 1, and (ii) Swing Line
Loans executed and delivered to the NationsBank substantially in the
form of Exhibit F-2.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender which arise under a Swap
Agreement, and (iii) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the
Lenders, the Agent or NCMI hereunder, under any one or more of the
other Loan Documents or with respect to the Loans.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings, and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than NationsBank) and a Swing Line Loan,
the extension of credit represented by the
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participation of such Lender hereunder in the liability of NationsBank
in respect of a Swing Line Loan made by NationsBank in accordance with
the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation, trust,
limited liability company, unincorporated organization, association,
joint venture or a government or agency or political subdivision
thereof.
"Pledge Agreement" means a Pledge Agreement, Share Charge,
Debenture or similar instrument whereby the Borrower or Domestic
Subsidiary creates a security interest in favor of the Agent in 65% of
the outstanding capital stock of a Material Subsidiary that is a Direct
Foreign Subsidiary.
"Pledged Stock" means the ownership interest in a Direct
Foreign Subsidiary which is pledged to the Agent pursuant to a Pledge
Agreement.
"Pounds Sterling" means the official currency of the United
Kingdom.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due, and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services.
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"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 3.2) for amounts theretofore
paid by the Issuing Bank pursuant to a drawing under such Letter of
Credit.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all Lenders on such date; provided,
however, that to the extent NationsBank has more than 51% of the
aggregate Credit Exposures, Required Lenders means Lenders on such date
having Credit Exposures of 80% of the aggregate Credit Exposures of all
Lenders. For purposes of the preceding sentence, the amount of the
"Credit Exposure" of each Lender shall be equal to the aggregate
principal amount of the Loans owing to such Lender plus the aggregate
unutilized amounts of such Lender's Revolving Credit Commitment
(without regard to any Swing Line Outstandings) plus the amount of such
Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings; provided that, (i) if any Lender shall have failed to pay
to the Issuing Bank its Applicable Commitment Percentage of any drawing
under any Letter of Credit resulting in an outstanding Reimbursement
Obligation, such Lender's Credit Exposure attributable to Letters of
Credit and Reimbursement Obligations shall be deemed to be held by the
Issuing Bank for purposes of this definition and (ii) if any Lender
shall have failed to pay to NationsBank its Applicable Commitment
Percentage of any Swing Line Loan, such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by NationsBank for purposes of this definition.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves)
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are required to be maintained under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against (a) in
the case of Eurodollar Rate Loans, "Eurocurrency liabilities" (as such
term is used in Regulation D) or (b) in the case of CD Rate Loans,
non-personal Dollar time deposits in an amount of $100,000 or more.
Without limiting the effect of the foregoing, the Reserve Requirement
shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate or CD Rate
(as the case may be) is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Rate
Loans or CD Rate Loans. The Eurodollar Rate and the CD Rate shall be
adjusted automatically on and as of the effective date of any change in
the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding; and (d) any issuance and sale of capital stock of any
Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders in
the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
made pursuant to Section 2.1 then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 9.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit.
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"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article II.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA
and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to
pay its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Special Purpose Subsidiary" means a Subsidiary of the
Borrower or another Subsidiary no portion of whose obligations or
liabilities are payable, directly or indirectly by the Borrower or any
other Subsidiary.
"Spot Rate of Exchange" means (i) in determining the Dollar
Equivalent Amount of a specified Alternative Currency amount as of any
date, the spot exchange rate determined by the Agent in accordance with
its usual procedures for the purchase by the Agent of Dollars with such
Alternative Currency at approximately 10:00 A.M. on the business Day
that is two (2) Business Days prior to such date, and (ii) in
determining the Alternative Currency Equivalent Amount of a specified
Dollar amount on any date, the spot exchange rate determined by the
Agent in accordance with its usual procedures for the purchase by the
Agent of such Alternative Currency with Dollars at approximately 10:00
A.M. on the Business Day that is two (2) Business Days prior to such
date.
"Stated Termination Date" means [____________], 2000 or such
later date as the parties may agree pursuant to Section 2.13.
"Subsidiary" means any corporation or other entity, other than
a Special Purpose Subsidiary, in which more than 50% of its outstanding
voting stock or more than 50% of all equity interests is owned directly
or indirectly by the Borrower and/or by one or more of the Borrower's
Subsidiaries.
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"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to Borrower and such
Person and approved by the Agent, which agreements create Rate Hedging
Obligations; provided, however, that no such approval of the Agent
shall be required to the extent such agreements are entered into
between the Borrower and any Lender.
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.14.
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 2.14.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower 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 was deemed such
under Section 4068(f) of ERISA; or (iii) 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 (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) 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 (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Letter of Credit Commitment" means an amount not to
exceed $10,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $30,000,000, as reduced from time to time in accordance with
Section 2.7.
"TROL Indebtedness" means the aggregate amount of liabilities
(including obligations to purchase or repurchase or other Contingent
Obligations) arising under TROL Leases.
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"TROL Leases" means all tax retention operating lease
agreements between the Borrower or any Subsidiary, as Lessee, and First
Security Bank, N.A., as Lessor, as amended, supplemented or modified
from time to time.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan, CD
Rate Loan, or Eurodollar Rate Loan).
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code
of another jurisdiction is controlling, in which case such terms shall
have the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
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(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) All dates and times of day specified herein shall refer to
such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances in Dollars or an
Alternative Currency (as specified in the respective Borrowing Notice) to the
Borrower under the Revolving Credit Facility from time to time from the Closing
Date until the Revolving Credit Termination Date on a pro rata basis as to the
total borrowing requested by the Borrower on any day determined by such Lender's
Applicable Commitment Percentage up to but not exceeding a Dollar Value equal to
the Revolving Credit Commitment of such Lender, provided, however, that the
Lenders will not be required and shall have no obligation to make any such
Advance (i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if the Agent has accelerated the maturity of any of the Notes
as a result of an Event of Default; provided further, however, that immediately
after giving effect to each such Advance, the Dollar Value of the principal
amount of Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits, the Borrower may borrow, repay and reborrow under the
Revolving Credit Facility on a Business Day from the Closing Date until, but (as
to borrowings and reborrowings) not including, the Revolving Credit Termination
Date; provided, however, that (y) no Eurodollar Rate Loan shall be made which
has an Interest Period that extends beyond the Stated Termination Date and (z)
each Eurodollar Rate Loan may, subject to the provisions of Section 2.7, be
repaid only on the last day of the Interest Period with respect thereto unless
such payment is accompanied by the additional payment, if any, required by
Section 4.5. The Borrower agrees that if at any time the Outstandings shall
exceed the Total Revolving Credit Commitment, the Borrower shall immediately
reduce the outstanding principal amount of the Loans such that, as a result of
such reduction, the Outstandings shall not exceed the Total Revolving Credit
Commitment.
(b) Amounts. (i) Each request for an Advance of an Alternative
Currency under a Borrowing Notice shall constitute the Borrower's request for a
Loan of the Dollar Value of the amount of the Alternative Currency specified in
such Borrowing Notice and for such Loan to be made available by the Lenders to
the Borrower in the Alternative Currency Equivalent Amount of such Dollar Value
(determined based on the Advance Date Exchange Rate applicable to such Advance).
The principal amount outstanding on any Loan shall be recorded in the Agent's
records in Dollars (in the case of an Advance of an Alternative Currency as if
the Loan had initially been made in Dollars), based on the amount of any
Eurodollar Rate Loan Advance and on the Dollar Value of the initial Advance of
an Alternative Currency, as reduced from time to time by the Dollar Equivalent
Amount (based on the Advance Date Exchange Rate applicable to such Advance) of
any principal payments with respect to such Advance. Advances in an Alternative
Currency shall be limited to Eurodollar Rate Loans. In the event a Eurodollar
Rate Loan of an Alternative Currency is Continued, such election to Continue the
Eurodollar Rate Loan shall be treated as an Advance and the Agent shall notify
the Borrower and the Lenders of the Advance Date Exchange Rate, Interest Period
and the Eurodollar Rate for such Continued Eurodollar Rate Loan. The Lenders
shall each be deemed to have made an Advance to the Borrower of its Applicable
Commitment Percentage of
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such Loan of an Alternative Currency and the Agent shall apply the Advance Date
Exchange Rate for such new Interest Period to such Continued Alternative
Currency Equivalent Amount to determine the new Dollar Value of such Eurodollar
Rate Loan and shall adjust its books and the Revolving Credit Outstandings. In
the event that such adjustment with respect to a Continued Loan would cause the
total Dollar Value of Outstandings to exceed the Total Revolving Credit
Commitment, the Borrower shall, immediately on the effective date of such
Continuation, repay (a "Rate Adjustment Payment") the portion of such Continued
Loan (applying the new Advance Date Exchange Rate) necessary to ensure that the
total Dollar Value of all Outstandings does not exceed the Total Revolving
Credit Commitment, provided, however, that the Borrower shall not be required to
pay any additional compensation pursuant to Section 4.5 with respect to a
prepayment of a Loan required by this sentence if such prepayment is made
immediately on the effective date of the Continuation giving rise to such
prepayment and no notice of such prepayment shall be required. For the purposes
of determining the maximum amount of Outstandings hereunder, it is intended by
the parties that all Loans shall be the functional equivalent of Loans made and
repaid (based on the applicable Advance Date Exchange Rate for each Advance) in
Dollars. It is recognized that one or more Lenders may elect to record Loans or
Advances in Alternative Currencies. The Agent shall maintain records sufficient
to identify at any time, (A) the Advance Date Exchange Rate with respect to each
Advance, and (B) the portion of the Revolving Credit Outstanding attributable to
each Advance.
(ii) Except as otherwise permitted by the Lenders from time to
time, the aggregate unpaid principal amount (including with respect to Loans of
Alternative Currencies the total Dollar Value) of the Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
shall not exceed at any time the Total Revolving Credit Commitment, and, in the
event there shall be outstanding any such excess, the Borrower shall immediately
make such payments and prepayments as shall be necessary to comply with this
restriction. Each Loan hereunder, other than Base Rate Refunding Loans, and each
Conversion under Section 2.8, shall be (A) in the case of Loans made in Dollars,
in an amount of at least $2,000,000, and, if greater than $2,000,000, an
integral multiple of $100,000, and (B) in the case of Loans made in an
Alternative Currency, in an amount of at least $2,000,000 (or the equivalent
thereof in any Alternative Currency), and, if greater than $2,000,000, an
integral multiple of $100,000 (or the equivalent thereof if in any Alternative
Currency).
(c) Advances and Rate Selection. (i) An Authorized Representative
shall give the Agent (A) at least three (3) Business Days' irrevocable written
notice by telefacsimile transmission of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions, effective upon
receipt, of each Eurodollar Rate Loan (whether representing an additional
borrowing hereunder or the Conversion of a borrowing hereunder) prior to 11:00
A.M. and (B) irrevocable written notice by telefacsimile transmission of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions, effective upon receipt, of each Revolving Loan (other
than Base Rate Refunding Loans to the extent the same are effected without
notice pursuant to Section 2.1(c)(iv)) that is a Base Rate Loan (whether
representing an additional borrowing hereunder or the Conversion of borrowing
hereunder) prior to 11:00 A.M. on the day of such proposed Base Rate Loan. Each
such notice shall specify the amount of the borrowing, whether Dollar or
Alternative Currency, the type of Loan (Base Rate or Eurodollar Rate), the date
of borrowing and,
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if a Eurodollar Rate Loan, the Interest Period to be used in the computation of
interest. Notice of receipt of such Borrowing Notice or Interest Rate Selection
Notice, as the case may be, together with the amount of each Lender's portion of
an Advance requested thereunder, shall be provided by the Agent to each Lender
by telefacsimile transmission with reasonable promptness, but (provided the
Agent shall have received such notice by 11:00 A.M.) not later than 1:00 P.M. on
the same day as the Agent's receipt of such notice. At approximately 10:00 A.M.
two (2) Business Days preceding the date specified for an Advance of an
Alternative Currency, the Agent shall determine the Advance Date Exchange Rate
and the applicable Eurodollar Rate. Not later than 10:45 A.M. two (2) Business
Days preceding the date specified for each Advance of an Alternative Currency,
the Agent shall provide the Borrower and each Lender notice by telefacsimile
transmission of the Advance Date Exchange Rate applicable to such Advance, and
the applicable Alternative Currency Equivalent Amount of the Loan or Loans
required to be made by each Lender on such date, and the Dollar Value of such
Loan or Loans and the applicable Eurodollar Rate.
(ii) (A) In the case of Advances in Dollars, not later than 2:00 P.M.
on the date specified for each borrowing under this Section 2.1, each
Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Advance or Advances to be made
by it on such day available by wire transfer to the Agent in the amount
of its pro rata share, determined according to such Lender's Applicable
Commitment Percentage of the Revolving Loan or Revolving Loans to be
made on such day. Such wire transfer shall be directed to the Agent at
the Principal Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to the
Borrower's Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and reasonably
acceptable to the Agent.
(B) In the case of Advances of an Alternative Currency, not
later than 10:00 A.M. on the date specified for each Advance, each
Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Loan or Loans to be made by it
on such day available to the Borrower at the Funding Bank, to the
account of the Agent with the Funding Bank. The amount so received by
the Funding Bank shall, subject to the terms and conditions of the Loan
Documents and upon instruction from the Agent to the Funding Bank on
the same day or immediately preceding day but no later than 10:00 A.M.,
be made available to the Borrower by delivery of the Alternative
Currency Equivalent Amount to the Borrower's account with the Funding
Bank.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the Loans in
accordance with Section 2.8. Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time, provided, however, there shall not be outstanding
at any one time Eurodollar Rate Loans having more than seven (7) different
Interest Periods. If the Agent does not receive a Borrowing Notice or an
Interest Rate Selection Notice giving notice of election of the duration of an
Interest Period or of Conversion of any Loan to or Continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Section 2.1(c) or
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2.8, the Borrower shall be deemed to have elected to Convert such Loans to (or
continue such Loan as) a Base Rate Loan until the Borrower notifies the Agent in
accordance with Section 2.8.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank prior to the
Stated Termination Date, and the Borrower shall not immediately fully reimburse
the Issuing Bank in respect of such drawing, (A) provided that the conditions to
making a Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank by the
Agent without the requirement of notice to or from the Borrower from immediately
available funds which shall be advanced as a Base Rate Refunding Loan by each
Lender under the Revolving Credit Facility in an amount equal to such Lender's
Applicable Commitment Percentage of such Reimbursement Obligation, and (B) if
the conditions to making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the Agent (for the
benefit of the Issuing Bank) in immediately available funds the purchase from
the Issuing Bank of their respective Participations in the related Reimbursement
Obligation based on their respective Applicable Commitment Percentages of the
Total Letter of Credit Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower shall not
immediately reimburse the Issuing Bank in respect thereof, then notice of such
drawing or payment shall be provided promptly by the Issuing Bank to the Agent
and the Agent shall provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any Letter of Credit
is given by the Agent at or before 12:00 noon on any Business Day, each Lender
shall, pursuant to the conditions specified in this Section 2.1(c)(iv), either
make a Base Rate Refunding Loan or fund the purchase of its Participation in the
amount of such Lender's Applicable Commitment Percentage of such drawing or
payment and shall pay such amount to the Agent for the account of the Issuing
Bank at the Principal Office in Dollars and in immediately available funds
before 2:30 P.M. on the same Business Day. If notice to the Lenders of a drawing
under a Letter of Credit is given by the Agent after 12:00 noon on any Business
Day, each Lender shall, pursuant to the conditions specified in this Section
2.1(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Agent for the account
of the Issuing Bank at the Principal Office in Dollars and in immediately
available funds before 12:00 noon on the next following Business Day. Any such
Base Rate Refunding Loan shall be advanced as, and shall continue as, a Base
Rate Loan unless and until the Borrower Converts such Base Rate Loan in
accordance with the terms of Section 2.8.
(d) Availability of Alternative Currency. If any Lender shall
notify the Borrower and the Agent of its election not to fund in any Alternative
Currency in accordance with the terms of this Agreement on or prior to two (2)
Business Days preceding the first day of an Interest Period for which a
Borrowing Notice or an Interest Rate Selection Notice, as the case may be, has
been delivered to the Agent requesting an Advance in an Alternative Currency or
a Continuation or Conversion of an Advance in an Alternative Currency, then such
Lender shall be obligated to fund the requested Advance, Continuation or
Conversion, as the case may be, in the Dollar Equivalent Amount of the amount of
the Alternative Currency specified in such Borrowing Notice or Interest Rate
Selection Notice and at the Eurodollar Rate specified by the Agent for such
request.
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2.2. Payment of Interest. (a) The Borrower shall pay interest to
the Agent for the account of each Lender on the outstanding and unpaid principal
amount of each Revolving Loan made by such Lender for the period commencing on
the date of such Revolving Loan until such Revolving Loan shall be due (i) in
the case of Loans made in Dollars, at the then applicable Base Rate for Base
Rate Loans or applicable Eurodollar Rate for Eurodollar Rate Loans, as
designated by the Authorized Representative pursuant to Section 2.1, such
payments to be made in Dollars, and (ii) in the case of Loans made in
Alternative Currencies, at the applicable Eurodollar Rate, such payments to be
made in the appropriate Alternative Currency; provided, however, that if any
amount shall not be paid when due (at maturity, by acceleration or otherwise),
all amounts outstanding hereunder shall bear interest thereafter at the Default
Rate.
(b) Interest on each Revolving Loan shall be computed on the basis
of a year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each Revolving Loan shall be paid (i) quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
June 30, 1997 for each Base Rate Loan, (ii) on the last day of the applicable
Interest Period for each Eurodollar Rate Loan and, if such Interest Period
extends for more than three (3) months, at intervals of three (3) months after
the first day of such Interest Period, and (iii) upon payment in full of the
principal amount of such Revolving Loan.
2.3. Payment of Principal. The principal amount of the Revolving
Credit Outstandings shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or earlier as
specifically provided herein. Such principal amount shall be recorded in Dollars
as set forth in Section 2.1. The repayment of such principal amount shall be
made in the appropriate Alternative Currency as follows: the portion of the
Revolving Credit Outstandings attributable to each specified Advance (or the
Continuation or Conversion thereof) (as determined from the Agent's records)
shall be repaid in the same Alternative Currency as such Advance. The principal
amount of any Base Rate Loan may be prepaid in Dollars in whole or in part at
any time. The principal amount of any Eurodollar Rate Loan may be prepaid only
at the end of the applicable Interest Period unless the Borrower shall pay to
the Agent for the account of the Lenders the additional amount, if any, required
under Section 4.5. All prepayments of Revolving Loans made by the Borrower shall
be in the amount of $1,000,000 (or the equivalent thereof in any Alternative
Currency) or such greater amount which is an integral multiple of $100,000 (or
the equivalent thereof in any Alternative Currency), or the amount equal to all
Revolving Credit Outstandings, or such other amount as necessary to comply with
Section 2.1(b) or Section 2.8.
2.4. Non-Conforming Payments. (a) Each payment of principal
(including any prepayment) and payment of interest and fees, and any other
amount required to be paid to the Lenders with respect to the Revolving Loans,
shall be made to the Agent at the Principal Office, for the account of each
Lender, in Dollars in the case Loans made in Dollars and in the same Alternative
Currency in the case of Loans made in Alternative Currencies, in immediately
available funds before 12:30 P.M. on the date such payment is due. The Borrower
shall give the Agent one (1) Business Days prior written notice of any payment
of principal, such notice to be given prior to 10:00 A.M. and to specify (i) the
date the payment will be made and (ii) the Loan to which payment relates. The
Agent may, at the election of the Borrower, but shall not be obligated to, debit
the amount of any
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such payment which is not made by such time to any ordinary deposit account, if
any, of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the
Borrower hereunder that is not made both (i) in Dollars in the case of Loans
made in Dollars and in the required Alternative Currency in the case of Loans
made in Alternative Currencies in immediately available funds and (ii) prior to
12:30 P.M. on the date payment is due to be a non-conforming payment. Any such
payment shall not be deemed to be received by the Agent until the later of (i)
the time such funds become available funds and (ii) the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of Default at
the determination of the Agent. The Agent shall give prompt telephonic or
telefacsimile notice to the Borrower if a non-conforming payment constitutes a
Default or an Event of Default. Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until the later of (x)
the date such funds become available funds or (y) the next Business Day at the
Default Rate from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under clause (ii) of the definition of "Interest Period"; provided that interest
shall continue to accrue during the period of any such extension and provided
further, that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
2.5. Notes. Revolving Loans made by each Lender shall be evidenced
by Notes in substantially the form set forth as Exhibit F-1 payable to the order
of such Lender in the respective amount of its Applicable Commitment Percentage
of the Revolving Credit Commitment, which Note shall be dated the Closing Date
or a later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrower. Swing Line Loans made by
NationsBank shall be evidenced by a Note in substantially the form as set forth
as Exhibit F-2 payable to the order of NationsBank.
2.6. Pro Rata Payments. Except as otherwise provided herein, (a)
each payment on account of the principal of and interest on the Revolving Loans
and the fees described in Section 2.10 shall be made to the Agent for the
account of the Lenders pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Borrower for the account of each
of the Lenders on account of principal, interest and fees, shall be made without
diminution, setoff, recoupment or counterclaim, and (c) the Agent will promptly
distribute to the Lenders in immediately available funds payments received in
fully collected, immediately available funds from the Borrower.
2.7. Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Revolving
Credit Commitment. The Agent shall give each Lender, within one (1) Business Day
of receipt of such notice, telefacsimile notice, or telephonic notice (confirmed
in writing), of such
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reduction. Each such reduction shall be in the aggregate amount of $5,000,000 or
such greater amount which is in an integral multiple of $1,000,000, or the
entire remaining Total Revolving Credit Commitment, and shall permanently reduce
the Total Revolving Credit Commitment. Each reduction of the Total Revolving
Credit Commitment shall be accompanied by payment of the Revolving Loans to the
extent that the principal amount of Revolving Credit Outstandings plus Letter of
Credit Outstandings plus Swing Line Outstandings exceeds the Total Revolving
Credit Commitment after giving effect to such reduction, together with accrued
and unpaid interest on the amounts prepaid. No such reduction shall result in
the payment of any Eurodollar Rate Loan other than on the last day of the
Interest Period of such Eurodollar Rate Loan unless such prepayment is
accompanied by amounts due, if any, under Section 4.5.
2.8. Conversions and Elections of Subsequent Interest Periods.
Provided that no Default or Event of Default shall have occurred and be
continuing and subject to the limitations set forth below and in Article IV, the
Borrower may:
(a) upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 10:30 A.M. on any
Business Day, Convert all or a part of Eurodollar Rate Loans to Base Rate Loans
on the last day of the Interest Period for such Eurodollar Rate Loans; and
(b) upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 11:00 A.M. three (3)
Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all
or a portion of Eurodollar Rate Loans to begin on the last day
of the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans to Eurodollar Rate
Loans on any Business Day;
(iii) elect that any Eurodollar Rate Loan be
converted from an Alternative Currency into another
Alternative Currency on the last day of the Interest Period
for any Eurodollar Rate Loan.
Each election and Conversion pursuant to this Section 2.8 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in Sections 2.1, 2.3 and Article IV. The Agent
shall give written notice to each Lender of such notice of election or
Conversion prior to 3:00 P.M. on the day such notice of election or Conversion
is received. All such Continuations or Conversions of Loans shall be effected
pro rata based on the Applicable Commitment Percentages of the Lenders.
2.9. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Outstanding Letters of Credit and
Outstanding Swing Line Loans.
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2.10. Facility Fees.
Unused Fee. For the period beginning on the Closing Date and ending on
the Revolving Credit Termination Date, the Borrower agrees to pay to the Agent,
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, an unused fee equal to the Applicable Unused Fee multiplied by the
average daily amount by which the Total Revolving Credit Commitment exceeds the
sum of (i) Revolving Credit Outstandings without giving effect to Swing Line
Outstandings (except in the case of NationsBank) plus (ii) Letter of Credit
Outstandings. Such fees shall be due in arrears on the last Business Day of each
March, June, September and December commencing June 30,1997 to the Revolving
Credit Termination Date (but excluding such day for the purpose of computing
such fee). Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its Revolving Credit Commitment when requested, such
Lender shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
2.11. Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan or fund its purchase of any Participation hereunder nor shall the
Revolving Credit Commitment of any Lender hereunder be increased as a result of
such default of any other Lender. Without limiting the generality of the
foregoing, in the event any Lender shall fail to advance funds to the Borrower
as herein provided, the Agent may in its discretion, but shall not be obligated
to, advance under the Note in its favor as a Lender all or any portion of such
amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such advance under its Note;
provided that, upon payment to the Agent from such other Lender of the entire
outstanding amount of each such deficiency advance, together with accrued and
unpaid interest thereon, from the most recent date or dates interest was paid to
the Agent by the Borrower on each Revolving Loan comprising the deficiency
advance at the interest rate per annum for overnight borrowing by the Agent from
the Federal Reserve Bank, then such payment shall be credited against the
applicable Note of the Agent in full payment of such deficiency advance and the
Borrower shall be deemed to have borrowed the amount of such deficiency advance
from such other Lender as of the most recent date or dates, as the case may be,
upon which any payments of interest were made by the Borrower thereon.
2.12. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other corporate purposes, including the making of
Acquisitions and Capital Expenditures permitted hereunder.
2.13. Extension of Stated Termination Date. At the request of the
Borrower the Lenders may, in their sole discretion, elect to extend the Stated
Termination Date then in effect for additional periods of one year upon each of
the first and second anniversary of the Closing Date. The Borrower shall notify
the Lenders of its request for such an extension by delivering to the Agent and
the Lenders notice of such request signed by an Authorized Representative not
more than ninety (90)
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days nor less than sixty (60) days prior to either the first or second
anniversary of the Closing Date, as the case may be. If the Lenders shall elect
to so extend, the Agent shall notify the Borrower in writing within sixty (60)
days of its receipt of such request for extension of the decision of the Lenders
as to whether to extend the Stated Termination Date. Failure by any Lender to
respond to a request for an extension shall constitute a refusal of such Lender
to give its consent to such extension. Failure by the Agent to give such notice
shall constitute refusal by the Lenders to extend the Stated Termination Date.
2.14. Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
make any Swing Line Loan pursuant hereto (i) if to the actual knowledge of
NationsBank the Borrower is not in compliance with all the conditions to the
making of Revolving Loans set forth in this Agreement, (ii) if after giving
effect to such Swing Line Loan, the Swing Line Outstandings exceed $5,000,000,
or (iii) if after giving effect to such Swing Line Loan, the sum of the Swing
Line Outstandings, the Revolving Credit Outstandings and Letter of Credit
Outstandings exceeds the Total Revolving Credit Commitment. Swing Line Loans
shall be limited to CD Rate Loans. The Company may borrow, repay and reborrow
under this Section 2.14. Unless notified to the contrary by NationsBank,
borrowings under the Swing Line shall be made in the minimum amount of $200,000
or in the amount necessary to effect a Base Rate Refunding Loan, upon written
request by telefacsimile transmission, effective upon receipt, by an Authorized
Representative of the Borrower made to NationsBank not later than 12:30 P.M. on
the Business Day of the requested borrowing. Each such Borrowing Notice shall
specify the amount of the borrowing and the date of borrowing, and shall be in
the form of Exhibit D-2, with appropriate insertions. If the Borrower instructs
NationsBank to debit any demand deposit account of the Borrower in the amount of
any payment with respect to a Swing Line Loan, or NationsBank otherwise receives
repayment, after 1:00 P.M. on a Business Day, such payment shall be deemed
received on the next Business Day.
(b) Swing Line Loans shall bear interest at the CD Rate, the interest
payable on Swing Line Loans is solely for the account of NationsBank, and all
accrued and unpaid interest on Swing Line Loans shall be payable on the dates
and in the time provided in Sections 2.2(b) and 2.4 with respect to interest on
Base Rate Loans. The Swing Line Outstandings shall be evidenced by the Note
delivered to NationsBank pursuant to Section 2.5.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount equal to
that Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
its purchase price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of NationsBank of the purchase price
of its Participation shall be deemed (i) provided that the conditions to making
Revolving Loans shall be satisfied, a Base Rate Refunding Loan under Section 2.1
until the Borrower Converts such Base Rate Loan in accordance with the terms of
Section 2.8, and (ii) in all other cases, the funding by each Lender of the
purchase price of its Participation in such Swing Line Loan. The obligation of
each
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Lender to so provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to NationsBank the amount necessary to repay such Swing
Line Outstandings (which NationsBank shall then apply to such repayment) and
credit any balance of the Advance in immediately available funds in the manner
directed by the Borrower pursuant to Section 2.1(c)(ii). The proceeds of such
Advances shall be paid to NationsBank for application to the Swing Line
Outstandings and the Lenders shall then be deemed to have made Loans in the
amount of such Advances. The Swing Line shall continue in effect until the
Revolving Credit Termination Date, at which time all Swing Line Outstandings and
accrued interest thereon shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.1. Letters of Credit. (a) The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of the Borrower to issue
from time to time for the account of the Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided, that (i) the Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment and (ii) no Letter of Credit shall be issued if,
after giving effect thereto, Letter of Credit Outstandings plus the Revolving
Credit Outstandings plus Swing Line Outstandings shall exceed the Total
Revolving Credit Commitment. No Letter of Credit shall have an expiry date
(including all rights of the Borrower or any beneficiary named in such Letter of
Credit to require renewal) or payment date occurring later than the earlier to
occur of one year after the date of its issuance or the fifth Business Day prior
to the Stated Termination Date.
(b) Subject to the approval by the Lenders of the making available of
an Alternative Currency not otherwise provided for herein, upon completion of a
proper Application and Agreement for Letter of Credit, NationsBank may issue
upon request and for the account of Borrower Letters of Credit payable in such
Alternative Currency. For purposes of determining Outstanding Letters of Credit,
any Letter of Credit issued in an Alternative Currency shall be recorded in the
Agent's account in Dollars based on the Alternative Currency Equivalent Amount
on the date of issuance of such Letter of Credit; provided, however, that the
Agent shall determine the Dollar Equivalent Amount of any Letter of Credit
issued in an Alternative Currency on the date of any Advance or Conversion for
the purpose of determining the amount of Outstandings. Any draw on a Letter of
Credit issued in an Alternative Currency shall be repaid in the same Alternative
Currency Equivalent Amount (determined based on the Spot Rate of Exchange on the
date of drawing under the Letter of Credit). To the extent that the Agent shall
determine at any time that the sum of (i) the Dollar Value of outstanding Loans
and Outstanding Letters of Credit, in each case determined on the date of each
Advance or issuance of a Letter of Credit, made or issued in Alternative
Currencies and (ii) outstanding Loans and Outstanding Letters of Credit made or
issued in Dollars exceeds the Total Revolving Credit Commitment, the Borrower
shall immediately repay Loans so that after giving effect to such payment the
outstanding Loans plus Outstanding Letters of Credit do not exceed the Total
Revolving Credit Commitment.
3.2. Reimbursement.
(a) The Borrower hereby unconditionally agrees to pay to the Issuing
Bank immediately on demand at the Principal Office all amounts required to pay
all drafts drawn or purporting to be drawn under the Letters of Credit and all
reasonable expenses incurred by the Issuing Bank in connection with the Letters
of Credit, and in any event and without demand to place in possession of the
Issuing Bank (which shall include Advances under the Revolving Credit Facility
if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.14)
sufficient funds to pay all debts and liabilities arising under any Letter of
Credit. The Issuing Bank agrees to give the Borrower prompt notice of any
request for a draw under a Letter of Credit. The Issuing Bank may, at the
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request of the Borrower, charge any account the Borrower may have with it for
any and all amounts the Issuing Bank pays under a Letter of Credit, plus charges
and reasonable expenses as from time to time agreed to by the Issuing Bank and
the Borrower; provided that to the extent permitted by Section 2.1(c)(iv) and
Section 2.14, amounts shall be paid pursuant to Advances under the Revolving
Credit Facility or, if the Borrower shall elect, by Swing Line Loans. The
Borrower agrees to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Base Rate plus two percent
(2.0%), or the maximum rate permitted by applicable law, if lower, such rate to
be calculated on the basis of a year of 360 days for actual days elapsed.
(b) In accordance with the provisions of Section 2.1(c), the Issuing
Bank shall notify the Agent of any drawing under any Letter of Credit promptly
following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of the
Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under Section 3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank as hereinafter described, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in
its capacity as a Lender) shall, subject to the terms and
conditions of Article II, pay to the Agent for the account of
the Issuing Bank at the Principal Office in Dollars and in
immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit,
such funds to be provided in the manner described in Section
2.1(c)(iv).
(ii) Simultaneously with the making of each
payment by a Lender to the Issuing Bank pursuant to Section
2.1(c)(iv)(B), such Lender shall, automatically and without
any further action on the part of the Issuing Bank or such
Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the
related Reimbursement Obligation of the Borrower. The
Reimbursement Obligations of the Borrower shall be immediately
due and payable whether by Advances made in accordance with
Section 2.1(c)(iv), Swing Line Loans made in accordance with
Section 2.14, or otherwise.
(iii) Each Lender's obligation to make payment to
the Agent for the account of the Issuing Bank pursuant to
Section 2.1(c)(iv) and this Section 3.2(c), and the right of
the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance
whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender is
obligated to pay but does not pay amounts to the Agent for the
account of the Issuing Bank in full upon such request as
required by Section 2.1(c)(iv) or this
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Section 3.2(c), such Lender shall, on demand, pay to the Agent
for the account of the Issuing Bank interest on the unpaid
amount for each day during the period commencing on the date
of notice given to such Lender pursuant to Section 2.1(c)
until such Lender pays such amount to the Agent for the
account of the Issuing Bank in full at the interest rate per
annum for overnight borrowing by the Agent from the Federal
Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing
Bank from the Borrower, the Issuing Bank shall promptly pay to
each Lender an amount equal to its Applicable Commitment
Percentage of such payment from the Borrower.
(d) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver to the Agent a notice describing the aggregate undrawn amount
of all Letters of Credit at the end of such quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to the Agent, and the
Agent shall deliver to such Lender, any other information reasonably requested
by such Lender with respect to each outstanding Letter of Credit.
(e) The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article V, be subject to the
conditions that such Letter of Credit be in such form and contain such terms as
shall be reasonably satisfactory to the Issuing Bank consistent with the then
current practices and procedures of the Issuing Bank with respect to similar
letters of credit, and the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letters of Credit as the Issuing
Bank shall have reasonably requested consistent with such practices and
procedures and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all subsequent
amendments and revisions thereto.
(f) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of Credit,
any drafts or other documents otherwise in order which may be signed or issued
by an administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in fact or
other legal representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
(g) Without limiting the generality of the provisions of Section 11.9,
the Borrower hereby agrees to indemnify and hold harmless the Issuing Bank, each
other Lender and the Agent from and against any and all claims and damages,
losses, liabilities, reasonable costs and expenses which the Issuing Bank, such
other Lender or the Agent may incur (or which may be claimed against the Issuing
Bank, such other Lender or the Agent) by any Person by reason of or in
connection with the issuance or transfer of or payment or failure to pay under
any Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
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claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this Section 3.2(g) shall
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
(h) Without limiting the Borrower's rights as set forth in Section
3.2(g), the obligation of the Borrower to immediately reimburse the Issuing Bank
for drawings made under Letters of Credit and the Issuing Bank's right to
receive such payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrower shall be performed strictly in accordance with the
terms of this Agreement and such Letters of Credit and the related Applications
and Agreement for any Letter of Credit, under all circumstances whatsoever,
including the following circumstances:
(i) any lack of validity or enforceability of
the Letter of Credit, the obligation supported by the Letter
of Credit or any other agreement or instrument relating
thereto (collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to
or departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute
between the Borrower and any beneficiary or any transferee of
a Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
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(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
Nothing contained in this clause (h) shall relieve the Issuing Bank of liability
for its gross negligence or willful misconduct.
3.3. Letter of Credit Facility Fees. The Borrower shall pay to the
Agent, (i) for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each outstanding Letter of Credit at a rate equal to the Applicable Margin, and
(ii) for the Issuing Bank, 0.125% based on the aggregate amount available to be
drawn on each outstanding Letter of Credit. Such fees shall be due with respect
to each Letter of Credit quarterly in arrears on the last day of each March,
June, September and December, the first such payment to be made on the date of
issuance of a Letter of Credit. The fees described in this Section 3.3 shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
3.4. Administrative Fees. The Borrower shall pay to the Issuing Bank
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as the Issuing Bank and the Borrower
shall agree from time to time.
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ARTICLE IV
Change in Circumstances
4.1. Increased Cost and Reduced Return. (a) If, after the date hereof,
the adoption of any applicable law, rule, or regulation, or any change in any
applicable law, rule, or regulation, 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
compliance by any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such governmental
authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office and franchise taxes);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Eurodollar
Rate and the CD Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or commitments of,
such Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting
this Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Rate Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then the
Borrower shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any Lender
requests compensation by the Borrower under this Section 4.1(a), the Borrower
may, by notice to such Lender (with a copy to the Agent), suspend the obligation
of such Lender to make or Continue Loans of the Type with respect to which such
compensation is requested, or to Convert Loans of any other Type into Loans of
such Type, until the event or condition giving rise to such request ceases to be
in effect (in which case the provisions of Section 4.4 shall be applicable);
provided that such suspension shall not affect the right of such Lender to
receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section and will designate
a different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section shall furnish to the Borrower and the Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
4.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
4.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of
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Loans into Eurodollar Rate Loans shall be suspended until such time as such
Lender may again make, maintain, and fund Eurodollar Rate Loans (in which case
the provisions of Section 4.4 shall be applicable).
4.4. Treatment of Affected Loans. If the obligation of any Lender to
make a particular Type of Eurodollar Rate Loan or to Continue, or to Convert
Loans of any other Type into, Loans of a particular Type shall be suspended
pursuant to Section 4.1 or 4.3 hereof (Loans of such Type being herein called
"Affected Loans" and such Type being herein called the "Affected Type"), such
Lender's Affected Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected Loans (or,
in the case of a Conversion required by Section 4.3 hereof, on such earlier date
as such Lender may specify to the Borrower with a copy to the Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1 or 4.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1 or 4.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 4.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
4.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9.1) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article V to be satisfied) to borrow (other than by reason of the
failure of a Lender or Lenders to make funds available without cause),
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Convert, Continue, or prepay a Eurodollar Rate Loan on the date for
such borrowing, Conversion, Continuation, or prepayment specified in
the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
Any Lender claiming compensation under this Section 4.5 shall furnish
the Borrower and the Agent a statement setting forth in reasonable detail the
amounts to be paid to it hereunder and the determination thereof shall be
conclusive absent manifest error.
4.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 11.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 4.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
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Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 4.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 4.6(a) or
4.6(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes at
such Lender's expense.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent evidence of such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.6 shall survive the termination of the Revolving Credit
Commitments and the payment in full of the Notes.
4.7. Replacement Banks. The Borrower may, in its sole discretion, on
ten (10) Business Days' prior written notice to the Agent and a Lender, cause a
Lender who has either (a) incurred increased costs or is unable to make
Eurodollar Rate Loans, (b) failed to fund any requested Advance, (c) made any
claim for taxes under Section 4.6, or (d) assigned a portion or all of its
Revolving Credit Commitment and not assigned a pro rata portion of the TROL
Indebtedness held by it, to (and such Lender shall) assign, pursuant to Section
11.1, all of its rights and obligations under this Agreement to an Eligible
Assignee designated by the Borrower which is willing to become a Lender for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Lender plus any accrued but unpaid interest on such Loans, any accrued but
unpaid fees with respect to such Lender's Revolving Credit Commitment and any
other amount payable to such Lender under this Agreement; provided, however,
that any
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expenses or other amounts which would be owing to such Lender pursuant to any
indemnification provision hereof (including, if applicable, Section 4.5) shall
be payable by the Borrower as if the Borrower had prepaid the Loans of such
Lender rather than such Lender having assigned its interest hereunder. The
Borrower or the assignee shall pay the applicable processing fee under Section
11.1.
4.8. Lending Office. Without affecting its rights under this Article IV
or any other provision of this Agreement, each Lender agrees that if there is
any increase in cost to or reduction in an amount receivable by such Lender with
respect to which the Borrower would be obligated to compensate such Lender
pursuant to this Article IV, such Lender shall use reasonable efforts to elect
an alternative lending office (to the extent such Lender has available to it
such an office) which would not result in any such increase in any cost to or
reduction in any amount receivable by such Lender; provided, however, that no
Lender shall be obligated to select an alternative lending office if such Lender
determines, in its sole discretion, that (i) as a result of such selection such
Lender would be in violation of any applicable law, regulation, treaty, or
guideline, or would incur additional costs or expenses or (ii) such selection
would be inadvisable for regulatory reasons or would impose an unreasonable
burden or additional costs on such Lender.
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ARTICLE V
Conditions to Making Loans and Issuing Letters of Credit
5.1. Conditions of Initial Advance. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of NationsBank to make any Swing Line
Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in
form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this
Agreement, the Notes, the initial Facility Guaranties, the LC
Account Agreement and the other Loan Documents, together with
all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions
with respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Loan Parties
dated the Closing Date, addressed to the Agent and the Lenders
and satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P.,
special counsel to the Agent, substantially in the form of
Exhibit G;
(iii) resolutions of the boards of directors or
other appropriate governing body (or of the appropriate
committee thereof) of each of the Loan Parties certified by
its secretary or assistant secretary as of the Closing Date,
approving and adopting the Loan Documents to be executed by
such Person, and authorizing the execution and delivery
thereof;
(iv) specimen signatures of officers of each of
the Loan Parties executing the Loan Documents on behalf of
such Person, certified by the secretary or assistant secretary
of such Person;
(v) the charter documents of each of the Loan
Parties certified as of a recent date by the Secretary of
State of its state of organization;
(vi) the bylaws of each of the Loan Parties
certified as of the Closing Date as true and correct by its
secretary or assistant secretary;
(vii) certificates issued as of a recent date by
the Secretaries of State of the respective jurisdictions of
formation of each of the Loan Parties as to the due existence
and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Loan Parties as of a recent date by the
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Secretary of State or comparable official of each jurisdiction
in which the failure to be qualified to do business or
authorized so to conduct business could have a Material
Adverse Effect;
(ix) notice of appointment of the initial
Authorized Representative(s);
(x) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in Sections 8 .1(a) through
8.1(d) and Section 8.3 as of the most recent fiscal quarter
ended, substantially in the form of Exhibit H;
(xi) evidence of all insurance required by the
Loan Documents;
(xii) an initial Borrowing Notice, if any;
(xiii) evidence that all fees payable by the
Borrower on the Closing Date to the Agent, NCMI and the
Lenders have been paid in full;
(xiv) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Agent and the
Lenders:
(i) there shall not have occurred or become
known to the Agent or the Lenders any event, condition,
situation or status since the date of the information
contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower and its
Subsidiaries delivered to the Agent prior to the Closing Date
that has had or could reasonably be expected to result in a
Material Adverse Effect;
(ii) no litigation, action, suit, investigation
or other arbitral, administrative or judicial proceeding shall
be pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Loan Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Loan
Parties is a party or by which any of them or their properties
is bound.
5.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue Letters of Credit and
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NationsBank to make Swing Line Loans, hereunder on or subsequent to the Closing
Date are subject to the satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans,
NationsBank shall have received a Borrowing Notice if required by
Article II;
(b) the representations and warranties of the Loan
Parties set forth in Article VI and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the
date of such Advance, Swing Line Loan or Letter of Credit issuance or
renewal, with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier
date and except that the financial statements referred to in Section
6.6(a) shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 7.1 from the
date financial statements are delivered to the Agent and the Lenders in
accordance with such Section;
(c) in the case of the issuance of a Letter of Credit,
the Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each
Advance, Swing Line Loan or the issuance of a Letter of Credit, no
Default or Event of Default specified in Article IX shall have occurred
and be continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal
balance of all outstanding Revolving Loans for each Lender
shall not exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line
Outstandings shall not exceed $5,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a
Letter of Credit or renewal thereof, the sum of Letter of
Credit Outstandings plus Revolving Credit
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Outstandings plus Swing Line Outstandings shall not exceed the
Total Revolving Credit Commitment.
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ARTICLE VI
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
6.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation or
partnership duly organized and validly existing under the laws of the
jurisdiction of its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Guarantor has the power and authority to execute,
deliver and perform the Facility Guaranty and each of the other Loan
Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which any Loan Party is a party will be the legal, valid and binding
obligation or agreement of such Loan Party, enforceable against such
Loan Party in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity (whether considered
in a proceeding at law or in equity);
6.2. Loan Documents. The execution, delivery and performance by
each Loan Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite corporate
action (including any required shareholder or partner approval) of such
Loan Party required for the lawful execution, delivery and performance
thereof;
(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on such Loan Party or its properties, or (iii) the charter
documents, partnership agreement or bylaws of such Loan Party;
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(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Loan Party is a party, or by which the
properties or assets of such Loan Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Loan Party or
any Subsidiary;
6.3. Solvency. Each Loan Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents;
6.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 6.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19; Schedule 6.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
6.4, free and clear of any Lien;
6.5. Ownership Interests. Borrower owns no interest in any Person other
than the Persons listed in Schedule 6.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 8.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19;
6.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Borrower and its Subsidiaries
as at December 29, 1996 and the notes thereto and the related
consolidated statements of income, stockholders' equity and cash flows
for the Fiscal Year then ended as examined and certified by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, and unaudited consolidated interim financial statements
of the Borrower and its Subsidiaries consisting of a consolidated
balance sheet and related consolidated statements of income and cash
flows, in each case without notes, for and as of the end of the three
month period ending March 30, 1997. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the
financial condition of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and three month period and results of their
operations and the changes in its stockholders' equity for the Fiscal
Year and interim period then ended, all in conformity with GAAP applied
on a
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Consistent Basis, subject however, in the case of unaudited interim
statements to year end audit adjustments;
(b) since March 30, 1997 there has been no material adverse
change in the condition, financial or otherwise, of the Borrower or any
of its Subsidiaries or in the businesses, properties, performance,
prospects or operations of the Borrower or its Subsidiaries, nor have
such businesses or properties been materially adversely affected as a
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
(c) except as set forth in the financial statements referred
to in Section 6.6(a) or in Schedule 6.6 or permitted by Section 8.5,
neither Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness, Contingent
Obligation or other commitment or liability which remains outstanding
or unsatisfied;
6.7. Title to Properties. The Borrower and each of its Subsidiaries has
title to all its real and personal properties, subject to no transfer
restrictions or Liens of any kind, except for the transfer restrictions and
Liens described in Schedule 6.7 and Liens permitted by Section 8.4;
6.8. Taxes. The Borrower and each of its Subsidiaries has filed or
caused to be filed all federal, state and local tax returns which are required
to be filed by it and, except for taxes and assessments being contested in good
faith by appropriate proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section 6.6(a) and
satisfactory to the Borrower's independent certified public accountants have
been established, have paid or caused to be paid all taxes as shown on said
returns or on any assessment received by it, to the extent that such taxes have
become due;
6.9. Other Agreements. No Loan Party nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect;
6.10. Litigation. Except as set forth in Schedule 6.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any
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properties or rights of the Borrower or any Subsidiary, which could reasonably
be expected to have a Material Adverse Effect;
6.11. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof;
6.12. Investment Company. No Loan Party is an "investment company," or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds
of the Loans and repayment thereof by the Borrower and the performance by the
Loan Parties of the transactions contemplated by the Loan Documents will not
violate any provision of said Act, or any rule, regulation or order issued by
the Securities and Exchange Commission thereunder, in each case as in effect on
the date hereof;
6.13. Patents, Etc. The Borrower and each Subsidiary owns or has the
right to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights necessary to or used in the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, in all
cases without known conflict with any patent, license, franchise, trademark,
trade secret, trade name, copyright, other proprietary right of any other
Person, which conflict is reasonably likely to have a Material Adverse Effect;
6.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any Subsidiary in accordance with or pursuant to any Loan
Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading;
6.15. No Consents, Etc. Neither the respective businesses or properties
of the Loan Parties or any Subsidiary, nor any relationship among the Loan
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
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Governmental Authority or any other Person on the part of any Loan Party or any
Subsidiary as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Loan Documents, which, if
not obtained or effected, would be reasonably likely to have a Material Adverse
Effect, or if so, such consent, approval, authorization, filing, registration or
qualification has been duly obtained or effected, as the case may be;
6.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws 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 material 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;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other material liability to the PBGC which remains outstanding other
than the payment of premiums and there are no premium payments which
are due and unpaid, (iii) failed to make a required contribution or
payment to a Multiemployer Plan, or (iv) failed to make a required
installment or other required payment under Section 412 of the Code,
Section 302 of ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan subject to Title IV of ERISA, maintained by the Borrower
or any ERISA Affiliate, has
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been administered in accordance with its terms in all material respects
and is in compliance in all material respects with all applicable
requirements of ERISA and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
6.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
6.18. Hazardous Materials. The Borrower and each Subsidiary is in
compliance with all applicable Environmental Laws in all material respects.
Neither the Borrower nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which, and neither the Borrower nor any Subsidiary
is aware of any facts which, (i) calls into question, or could reasonably be
expected to call into question, compliance by the Borrower or any Subsidiary
with any Environmental Laws, (ii) which seeks, or could reasonably be expected
to form the basis of a meritorious proceeding, to suspend, revoke or terminate
any license, permit or approval necessary for the generation, handling, storage,
treatment or disposal of any Hazardous Material, or (iii) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Borrower or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law;
6.19. Employment Matters. (a) Except as set forth in Schedule 6.19,
none of the employees of the Borrower or any Subsidiary is subject to any
collective bargaining agreement and there are no strikes, work stoppages,
election or decertification petitions or proceedings, unfair labor charges,
equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or between the Borrower or any
Subsidiary and any of its employees, other than employee grievances arising in
the ordinary course of business which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance in all material respects with all applicable laws, rules and
regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and taxation
and there is neither pending or, to the knowledge of the Borrower, threatened
any litigation, administrative proceeding nor, to the knowledge of the Borrower,
any investigation, in respect of such matters which, if decided adversely, could
reasonably be likely, individually or in the aggregate, to have a Material
Adverse Effect; and
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6.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
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ARTICLE VII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
7.1. Financial Reports, Etc. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year,
and the notes thereto, and the related consolidated statements of income,
stockholders' equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth comparative financial statements for the preceding
Fiscal Year, all prepared in accordance with GAAP applied on a Consistent Basis
and containing opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or other such independent
certified public accountants selected by the Borrower and approved by the Agent,
which are unqualified as to the scope of the audit performed and as to the
"going concern" status of the Borrower and its Subsidiaries and without any
exception not acceptable to the Lenders, and (ii) a certificate of an Authorized
Representative demonstrating compliance with Sections 8.1(a) through 8.1(d) and
8.3, which certificate shall be in the form of Exhibit H;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income and cash flows for such fiscal quarter
and for the period from the beginning of the then current Fiscal Year through
the end of such reporting period, and accompanied by a certificate of an
Authorized Representative to the effect that such financial statements present
fairly the financial position of the Borrower and its Subsidiaries as of the end
of such fiscal period and the results of their operations and the changes in
their financial position for such fiscal period, in conformity with the
standards set forth in Section 6.6(a) with respect to interim financial
statements, and (ii) a certificate of an Authorized Representative containing
computations for such quarter comparable to that required pursuant to Section
7.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in Section 7.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under Section 7.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); or if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and
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Exchange Commission (or any successor thereto) or any securities exchange, (ii)
any proxy statement distributed by the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general, and (iii) any
management letter or other report submitted to the Borrower or any Subsidiary by
independent accountants in connection with any annual, interim or special audit
of the Borrower or any Subsidiary; and
(e) not later than the last Business Day of each Fiscal Year, deliver
to the Agent and each Lender a consolidated operating budget for the Borrower
and its Subsidiaries for the next Fiscal Year, prepared in accordance with GAAP
applied on a Consistent Basis;
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement;
7.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, ordinary wear and tear excepted,
make all needed repairs, replace ments and renewals to such properties, and
maintain free from Liens all trademarks, trade names, patents, copyrights, trade
secrets, know-how, and other intellectual property and proprietary information
(or adequate licenses thereto), in each case as are reasonably necessary to
conduct its business as currently conducted or as contemplated hereby, all in
accordance with customary and prudent business practices, except where such
failure could not be reasonably expected to have a Material Adverse Effect;
7.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 8.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and, except to the extent conveyed in connection with a
transaction permitted under Section 8.6 hereof, maintain its license or
qualification to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary;
7.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any
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Lien resulting therefrom attaches to any of its property and becomes enforceable
against its creditors;
7.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards, (b) maintain general public liability insurance at
all times with responsible insurance carriers against liability on account of
damage to persons and property and (c) maintain insurance under all applicable
workers' compensation laws (or in the alternative, maintain required reserves if
self-insured for workers' compensation purposes) and against loss by reason of
business interruption such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than that specified in Schedule 7.5. Each of the policies of insurance
described in this Section 7.5 shall provide that the insurer shall give the
Agent not less than thirty (30) days' prior written notice before any such
policy shall be terminated, lapse or be altered in any manner;
7.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements;
7.7. Right of Inspection. Permit any Person designated by the Agent, at
the Agent's expense, to visit and inspect any of the properties, corporate books
and financial reports of the Borrower or any Subsidiary and to discuss its
affairs, finances and accounts with its principal officers and independent
certified public accountants, all at reasonable times, at reasonable intervals
and with reasonable prior notice and permit any Lender to discuss the Borrower's
affairs, finances and accounts with its principal officers all at reasonable
times, at reasonable intervals and with reasonable prior notice;
7.8. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business;
7.9. Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents;
7.10. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.2 through 7.9, and 7.18
inclusive;
7.11. Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary to any Lender, or any event,
development or occurrence which could reasonably be expected to have a Material
Adverse Effect, cause such officer or an Authorized
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Representative to promptly notify the Agent of the nature thereof, the period of
existence thereof, and what action the Borrower or such Subsidiary proposes to
take with respect thereto;
7.12. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or any attachment, levy, execution or
other process being instituted against any assets of the Borrower or any
Subsidiary making a claim or claims which is likely to result in damages in an
aggregate amount greater than $[1,000,000] not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other
process;
7.13. Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Agent true, accurate and complete copies of
any and all notices, complaints, orders, directives, claims, or citations
received by the Borrower or any Subsidiary relating to any (a) violation or
alleged violation by the Borrower or any Subsidiary of any applicable
Environmental Law; (b) release or threatened release by the Borrower or any
Subsidiary, or at any facility or property owned or leased or operated by the
Borrower or any Subsidiary, of any Hazardous Material, except where occurring
legally; or (c) liability or alleged liability of the Borrower or any Subsidiary
for the costs of cleaning up, removing, remediating or responding to a release
of Hazardous Materials;
7.14. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or and Subsidiary has violated any Environmental Law
or is liable for the costs of cleaning up, removing, remediating or responding
to a release of Hazardous Materials, the Borrower shall, within the time period
permitted by the applicable Environmental Law or the Governmental Authority
responsible for enforcing such Environmental Law, either (i) remove or remedy,
or cause the applicable Subsidiary to remove or remedy, such violation or
release or satisfy such liability or (ii) contest in good faith such violation
so long as no remedial action shall be required to be taken during the period of
such contest;
7.15. Indemnification. Without limiting the generality of Section 11.9,
the Borrower hereby agrees to indemnify and hold the Agent, the Lenders and
NCMI, and their respective officers, directors, employees and agents, harmless
from and against any and all claims, losses, penalties, liabilities, damages and
expenses (including assessment and cleanup costs and reasonable attorneys' fees
and disbursements) arising directly or indirectly from, out of or by reason of
(a) the violation of any Environmental Law by the Borrower or any Subsidiary or
with respect to any property owned, operated or leased by the Borrower or any
Subsidiary or (b) the handling, storage, treatment, emission or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 7.15 shall survive the Facility
Termination Date and expiration or termination of this Agreement;
7.16. Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such
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further instruments, documents, certificates, financing and continuation
statements, and do and cause to be done such further acts that may be reasonably
necessary or advisable in the reasonable opinion of the Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan
Documents;
7.17. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty (30)
days thereof, give notice to the Agent of (a) the establishment of any new
Pension Plan (which notice shall include a copy of such plan), (b) the
commencement of contributions to any Employee Benefit Plan to which the Borrower
or any of its ERISA Affiliates was not previously contributing, (c) any material
increase in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Employee Benefit Plan and all
communications received or sent by the Borrower or any ERISA Affiliate with
respect to such request and (e) the failure of the Borrower or any ERISA
Affiliate to make a required installment or payment under Section 302 of ERISA
or Section 412 of the Code by the due date;
(b) Promptly and in any event within fifteen (15) days of becoming
aware of the occurrence or forthcoming occurrence of any (a) Termination Event
or (b) nonexempt "prohibited transaction," as such term is defined in Section
406 of ERISA or Section 4975 of the Code, in connection with any Pension Plan or
any trust created thereunder, deliver to the Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen (15)
days for purposes of clauses (a), (b) and (c), deliver to the Agent copies of
(a) any unfavorable determination letter from the Internal Revenue Service
regarding the qualification of an Employee Benefit Plan under Section 401(a) of
the Code, (b) all notices received by the Borrower 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, (c) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate
with the Internal Revenue Service with respect to each Pension Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA. The Borrower will notify the Agent in writing
within five (5) Business Days of the Borrower or any ERISA Affiliate obtaining
knowledge or reason to know that the Borrower 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;
7.18. Continued Operations. Continue at all times to conduct its
business and engage principally in the same or complementary line or lines of
business substantially as heretofore conducted;
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7.19. Additional Support Documents. The Borrower will cause (i) every
Material Subsidiary, whether on the Closing Date or thereafter, to execute and
deliver, as promptly as practicable but in any event within 30 days after the
creation or Acquisition of any such Subsidiary, or such Subsidiary becoming a
Material Subsidiary, (a) in the case of a Material Subsidiary that is a Domestic
Subsidiary a Guaranty of such Subsidiary and (b) in the case of a Material
Subsidiary that is a Direct Foreign Subsidiary 65% of the issued and outstanding
capital stock of such Subsidiary together with stock powers (to the extent
certificates exist) executed in blank and a Pledge Agreement covering such stock
duly executed by the owner of such stock, (ii) to be delivered to the Agent an
opinion of counsel to the Material Subsidiary dated as of the date of delivery
of the Facility Guaranty or Pledged Stock addressed to the Agent and the
Lenders, in form and substance reasonably acceptable to the Agent (which opinion
may include assumptions and qualifications of similar effect to those contained
in the opinions of counsel delivered pursuant to Section 5.1(a) and such others
that are appropriate at the time such opinion is to be given, to the effect)
that:
(A) such Material Subsidiary is duly organized,
validly existing and in good standing in the jurisdiction of
its formation, has the requisite power and authority to own
its properties and conduct its business as then owned and then
conducted and proposed to be conducted, and is duly qualified
to transact business and is in good standing as a foreign
corporation or partnership in each other jurisdiction in which
the character of the properties owned or leased, or the
business carried on by it, requires such qualification and the
failure to be so qualified would reasonably be likely to
result in a Material Adverse Effect;
(B) the execution, delivery and performance of the
Facility Guaranty or Pledge Agreement, as the case may be,
described in this Section 7.19 to which such Material
Subsidiary, Borrower or Domestic Subsidiary is a signatory
have been duly authorized by all requisite corporate or
partnership action (including any required shareholder or
partner approval), such agreement has been duly executed and
delivered and constitutes the valid and binding agreement of
such Material Subsidiary, Borrower or Domestic Subsidiary,
enforceable against such Material Subsidiary, Borrower or
Domestic Subsidiary in accordance with its terms, subject to
the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in
a proceeding at law or in equity); and
(iii) current copies of the charter documents, including partnership agreements
and certificate of limited partnership, if applicable, and bylaws of such
Material Subsidiary, minutes of duly called and conducted meetings (or duly
effected consent actions) of the Board of Directors, partners, or appropriate
committees thereof (and, if required by such charter documents, bylaws or by
applicable law, of the shareholders) of such Material Subsidiary authorizing the
actions and the execution and delivery of documents described in this Section
7.19.
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ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full, no Letters
of Credit remain outstanding and this Agreement has been terminated in
accordance with the terms hereof, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, nor will it permit any Subsidiary to:
8.1. Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth to
be less than (i) $75,000,000 at the Closing Date and (ii) as at the
last day of each succeeding fiscal quarter of the Borrower and until
(but excluding) the last day of the next following fiscal quarter of
the Borrower, the sum of (A) the amount of Consolidated Net Worth
required to be maintained pursuant to this Section 8.1(a) as at the end
of the immediately preceding fiscal quarter, plus (B) 50% of
Consolidated Net Income (with no reduction for net losses during any
period) for the fiscal quarter of the Borrower ending on such day
(including within "Consolidated Net Income" certain items otherwise
excluded, as provided for in the definition of "Consolidated Net
Income").
(b) Consolidated Leverage Ratio. Permit at any time
during the respective periods set forth below the Consolidated Leverage
Ratio to be more than that set forth opposite each such period:
-------------------------------------------------------------------------------
Four Quarter Period Ending Consolidated Leverage Ratio Covenant
-------------------------------------------------------------------------------
6/30/97 3.75:1.00
-------------------------------------------------------------------------------
9/30/97 3.75:1.00
-------------------------------------------------------------------------------
12/31/97 3.75:1.00
-------------------------------------------------------------------------------
3/31/98 3.75:1.00
-------------------------------------------------------------------------------
6/30/98 3.75:1.00
-------------------------------------------------------------------------------
9/30/98 3.75:1.00
-------------------------------------------------------------------------------
12/31/98 and thereafter 3.50:1.00
-------------------------------------------------------------------------------
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any
Four-Quarter Period to be less than 2.00 to 1.00.
(d) Consolidated Total Capitalization. Permit at any
time Consolidated Indebtedness to be greater than fifty-five percent
(55%) of Consolidated Total Capitalization.
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8.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition,
(iii) the Cost of an Acquisition does not exceed 25% of Consolidated Net Worth,
(iv) the Borrower shall have furnished to the Agent (A) pro forma historical
financial statements as of the end of the most recently completed Fiscal Year of
the Borrower and most recent interim fiscal quarter, if applicable, giving
effect to such Acquisition and (B) a certificate in the form of Exhibit H
prepared on a historical pro forma basis giving effect to such Acquisition,
which certificate shall demonstrate that no Default or Event of Default would
exist immediately after giving effect thereto, (v) the Person acquired shall be
a wholly-owned Subsidiary, or be merged into the Borrower or a wholly-owned
Subsidiary, immediately upon consummation of the Acquisition (or if assets are
being acquired, the acquiror shall be the Borrower or a wholly-owned
Subsidiary), and (vi) if the Cost of Acquisition shall exceed 25% of
Consolidated Net Worth, the Required Lenders shall consent to such Acquisition
in their discretion;
8.3. Capital Expenditures. Make Capital Expenditures, which exceed in
the aggregate in any Fiscal Year of the Borrower described below (on a limited
cumulative basis, with the effect that amounts not expended in the Fiscal Year
set forth below may be carried forward to the next Fiscal Year), the amount set
forth opposite each such period:
Capital Expenditures
--------------------
Fiscal Year Ending: Not to Exceed:
------------------- --------------
December 31, 1997 $85,000,000
December 31, 1998 $75,000,000
Each Fiscal Year
ending on or after
December 31, 1999 $60,000,000;
8.4. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
(a) Liens existing as of the date hereof and as set forth in
Schedule 6.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith
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by appropriate proceedings diligently conducted and with respect to
which adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP.
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP.
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary; and
(f) Liens on assets of a Special Purpose Subsidiary securing
Non-Recourse Indebtedness;
8.5. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness of the Borrower, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 6.6; provided, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of conversion, put, exchange or
other rights from such terms and rights as in effect on the Closing
Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (c) above, provided that the
aggregate outstanding
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principal amount of all such other Indebtedness permitted under this
clause (d) shall in no event exceed $15,000,000 at any time;
(e) TROL Indebtedness; and
(f) Non-Recourse Indebtedness;
8.6. Transfer of Assets. Sell, lease, transfer or otherwise
dispose of any assets of Borrower or any Subsidiary other than (a)
dispositions of assets in the ordinary course of business, (b) dispositions of
property that is substantially worn, damaged, obsolete or, in the judgment of
the Borrower, no longer best used or useful in its business or that of any
Subsidiary, (c) transfers of assets necessary to give effect to merger or
consolidation transactions permitted by Section 8.8, (d) the disposition of
Eligible Securities in the ordinary course of management of the investment
portfolio of the Borrower and its Subsidiaries and (e) the transfer of assets
to any Person during any Fiscal Year which assets have a net book value not
exceeding ten percent (10%) of Consolidated Total Assets so long as Borrower or
its Subsidiary shall be paid not less than the net book value of such asset in
cash;
8.7. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) of any Person acquired in an Acquisition permitted
hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in Schedule 6.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Domestic Subsidiaries which are Guarantors
or Direct Foreign Subsidiaries who have complied with Section 7.19; and
(f) other investments, loans or advances (including, without
limitation, loans or advances in or to Special Purpose Subsidiaries)
not exceeding in the aggregate at any time 20% of Consolidated Total
Assets;
8.8. Merger or Consolidation. (a) Consolidate with or merge into
any other Person, or (b) permit any other Person to merge into it, or (c)
liquidate, wind-up or dissolve or sell, transfer or lease or otherwise dispose
of all or a substantial part of its assets (other than sales permitted under
Section 6.6); provided, however, (i) any Subsidiary of the Borrower may merge
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or transfer all or substantially all of its assets into or consolidate with the
Borrower or any wholly-owned Subsidiary of the Borrower, and (ii) any other
Person may merge into or consolidate with the Borrower or any wholly-owned
Subsidiary and any Subsidiary may merge into or consolidate with any other
Person in order to consummate an Acquisition permitted by Section 8.2, provided
further, that any resulting or surviving entity shall execute and deliver such
agreements and other documents, including a Facility Guaranty, and take such
other action as the Agent may require to evidence or confirm its express
assumption of the obligations and liabilities of its predecessor entities under
the Loan Documents;
8.9. Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
8.10. Transactions with Affiliates. Other than transactions permitted
under Sections 8.7 and 8.8, and transactions with Subsidiaries enter into any
transaction after the Closing Date, including, without limitation, the purchase,
sale, lease or exchange of property, real or personal, or the rendering of any
service, with any Affiliate of the Borrower, except (a) that such Persons may
render services to the Borrower or its Subsidiaries for compensation at the same
rates generally paid by Persons engaged in the same or similar businesses for
the same or similar services, (b) that the Borrower or any Subsidiary may render
services to such Persons for compensation at the same rates generally charged by
the Borrower or such Subsidiary and (c) in either case in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's (or any
Subsidiary's) business consistent with past practice of the Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate;
8.11. Compliance with ERISA. With respect to any Pension Plan, Employee
Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
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(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof;
8.12. Fiscal Year. Change its Fiscal Year other than to a calendar
year;
8.13. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 8.8;
8.14. Limitations on Sales and Leasebacks. Except to the extent
permitted under Section 8.6(e), enter into any arrangement with any Person
providing for the leasing by the Borrower or any Subsidiary of real or personal
property, whether now owned or hereafter acquired in a related transaction or
series of related transactions, which has been or is to be sold or transferred
by the Borrower or any Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
property or rental obligations of the Borrower or any Subsidiary;
8.15. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control;
8.16. [RESERVED]
8.17. Negative Pledge Clauses. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, provided that the Borrower and any Subsidiary
may enter into such an agreement in connection with property acquired with the
proceeds of purchase money Indebtedness permitted hereunder;
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8.18. Prepayments, Etc. of Indebtedness. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness; or
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in Section 8.5(a) or any lease so that the terms and
conditions thereof are less favorable to the Agent and the Lenders than the
terms of such Indebtedness or leases as of the Closing Date;
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ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III, at maturity, by
acceleration or otherwise and; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable and such default shall continue for three (3) or more days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 7.7, 7.11, 7.12, 7.19 or Article
VIII (other than Section 8.4 and 8.11;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or an Authorized Representative of the Borrower becomes aware of such
default, or if a default shall be made in the performance or observance
of, or shall occur under, any covenant, agreement or provision
contained in any of the other Loan Documents (beyond any applicable
grace period, if any, contained therein) or in any instrument or
document evidencing or creating any obligation, guaranty, or Lien in
favor of the Agent or any of the Lenders or delivered to the Agent or
any of the Lenders in connection with or pursuant to this Agreement or
any of the Obligations, or if any Loan Document ceases to be in full
force and effect (other than by reason of any action by the Agent or
any Lender), or if without the written consent of the Lenders, this
Agreement or any other Loan Document shall be disaffirmed or shall ter
minate, be terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its terms in
the absence of default or by reason of any action by the Lenders or the
Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than $2,500,000 in the aggregate outstanding, or (ii) a
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default, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness or Rate
Hedging Obligation referred to in clause (i) may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) any other event of default as specified in any
agreement or instrument under or pursuant to which any such
Indebtedness or Rate Hedging Obligation may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and
any such default or event of default specified in clauses (i), (ii) or
(iii) shall continue for more than the period of grace, if any, therein
specified, or such default or event of default shall permit the holder
of any such Indebtedness (or any agent or trustee acting on behalf of
one or more holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower pursuant to or in connection with any Loan
Document, or otherwise, shall be false or misleading in any material
respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of the
Borrower or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower or any Subsidiary takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer is
found not to be liable for) is in excess of $1,000,000 is rendered
against the Borrower or any Subsidiary, or (ii) there is any
attachment, injunction or execution against any of the Borrower's or
Subsidiaries' properties for any amount in excess of $1,000,000 in the
aggregate; and such judgment, attachment, injunction or execution
remains unpaid, unstayed, undischarged, unbonded or undismissed for a
period of thirty (30) days; or
(j) if the Borrower or any Material Subsidiary shall, other
than in the ordinary course of business (as determined by past
practices), suspend all or any part of its operations material to the
conduct of the business of the Borrower or such Material Subsidiary for
a period of more than sixty (60) days; or
(k) if at any time less than 80% of Consolidated Total Assets
are attributable to the operations and assets of the Borrower,
Guarantors and Direct Foreign Subsidiaries who have complied with the
requirements of Section 7.19; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders and the Issuing
Bank to make further Revolving Loans and Swing Line Loans or
to issue additional Letters of Credit terminated, whereupon
the obligation of each Lender to make further Revolving Loans,
of NationsBank to make further Swing Line Loans, and of the
Issuing Bank to issue additional Letters of Credit, hereunder
shall terminate immediately, and (ii) the Agent shall at the
direction of the Required Lenders, at their option, declare by
notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrower to the Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in
any instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under clause
(g) or (h) above, then the obligation of the Lenders to make
Revolving Loans, of NationsBank to make Swing Line Loans, and
of the Issuing Bank to issue Letters of Credit hereunder shall
automatically terminate and any and all of the Obligations
shall be immediately due and payable without the necessity of
any action by the Agent or the Required Lenders or notice to
the Agent or the Lenders;
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(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
9.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived or cured, the Agent may, and at the direction of
the Required Lenders shall, proceed to protect and enforce their rights or
remedies either by suit in equity or by action at law, or both, whether for the
specific performance of any covenant, agreement or other provision contained
herein or in any other Loan Document, or to enforce the payment of the
Obligations or any other legal or equitable right or remedy.
9.3. Cumulative Rights. No right or remedy herein conferred upon
the Lenders or the Agent is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right or
remedy shall be cumulative and shall be in addition to every other such right or
remedy contained herein and therein or now or hereafter existing at law or in
equity or by statute, or otherwise.
9.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
9.5. Allocation of Proceeds. If an Event of Default has occurred
and not been waived, and the maturity of the Notes has been accelerated pursuant
to Article IX hereof, all payments received by the Agent hereunder, in respect
of any principal of or interest on the Obligations or any other amounts payable
by the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.10, 3.3,
3.4 and 11.5;
(b) amounts due to the Agent pursuant to Section 10.9;
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
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(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 9.1(l)(B);
(f) amounts due to the Lenders pursuant to Sections 3.2(g),
7.15 and 11.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap Agreement with any
of the Lenders on a pro rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
9.6. Limitation. The Agent and the Lenders shall have no right to
accelerate any of the Loans upon, or to institute any action or proceeding
before any court to realize upon collateral as a result of, the occurrence of
any Default which shall not also constitute an Event of Default; provided
however, nothing contained in this sentence shall in any respect impair or
adversely affect the right, power and authority of the Agent and the Lenders (i)
to take any action expressly required or permitted to be taken under the Loan
Documents upon the occurrence of any Default; and (ii) to take any action
provided under the Loan Documents or otherwise available by statute, at law or
in equity upon the occurrence of any Default.
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ARTICLE X
The Agent
10.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 10.5 and
the first sentence of Section 10.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents): (a) shall
not have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
or any other document referred to or provided for therein or for any failure by
any Loan Party or any other Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any Loan
Party or the satisfaction of any condition or to inspect the property (including
the books and records) of any Loan Party or any of its Subsidiaries or
affiliates; (d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and (e) shall not be responsible
for any action taken or omitted to be taken by it under or in connection with
any Loan Document, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Lender hereby irrevocably designates
and appoints NationsBank as the Agent for the Lenders under this Agreement, and
each of the Lenders hereby irrevocably authorizes NationsBank as the 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 as are
expressly delegated to the Agent by the terms of this Agreement and such other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of the
Lenders, and no implied covenants, functions, respon sibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
10.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an
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Assignment and Acceptance executed in accordance with Section 11.1 hereof. As to
any matters not expressly provided for by this Agreement, the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; provided, however, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Loan Document or applicable law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
10.3. Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 10.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
10.4. Rights as Lender. With respect to its Revolving Credit Commitment
and the Loans made by it, NationsBank (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. NationsBank
(and any successor acting as Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Loan Party or any of its Subsidiaries
or affiliates as if it were not acting as Agent, and NationsBank (and any
successor acting as Agent) and its affiliates may accept fees and other
consideration from any Loan Party or any of its Subsidiaries or affiliates for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
10.5. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 11.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs
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or expenses payable by the Borrower under Section 11.5, to the extent that the
Agent is not promptly reimbursed for such costs and expenses by the Borrower.
The agreements contained in this Section shall survive payment in full of the
Loans and all other amounts payable under this Agreement.
10.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Loan Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the 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 analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any Loan
Party or any of its Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
10.7. Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent meeting the
requirements set forth herein. The Borrower shall have the right to approve such
Agent so long as no Default or Event of Default exist. If no successor Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a commercial bank organized under the
laws of the United States of America having combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor, such successor shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges, and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X 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 Agent.
10.8. Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis and payments pursuant to Article IV), then (a) such Lender shall be deemed
to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata and (b) such other adjustments shall be made from time to time
as shall be equitable to insure that the Lenders share such payments ratably;
provided, however, that for purposes of this Section 10.8 the term "pro rata"
shall be determined with respect to the Revolving Credit Commitment of each
Lender and to the Total Revolving Credit Commitments after subtraction in each
case of amounts, if any, by which any
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such Lender has not funded its share of the outstanding Loans and Obligations.
If all or any portion of any such excess payment is thereafter recovered from
the Lender which received the same, the purchase provided in this Section 10.8
shall be rescinded to the extent of such recovery, without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that each
Lender so purchasing a portion of the other Lenders' Obligations may exercise
all rights of payment (including, without limitation, all rights of set-off,
banker's lien or counterclaim) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
10.9. Fees. The Borrower agrees to pay to the Agent, for its individual
account, an annual Agent's fee as from time to time agreed to by the Borrower
and Agent in writing.
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ARTICLE XI
Miscellaneous
11.1. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Loans, its Note, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and obligations under
this Agreement and the Note; and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and Acceptance in the form
of Exhibit B hereto, together with any Note subject to such assignment and a
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 4.6.
(b) The Agent shall maintain at its address referred to in Section 11.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the 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 Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent
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shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations at its expense to one or more
Persons in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and its Loans);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to its
Loans and its Note and to approve any amendment, modification, or waiver of any
provision of this Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Note, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Note, or extending its
Revolving Credit Commitment) and (iv) the sale of any such participation which
requires the Borrower to file a registration statement with federal or state
regulatory authorities shall not be permitted.
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants) so
long as such Lender shall require in writing (which writing names the Borrower
as a third party beneficiary thereof) any such assignee or participant or
perspective assignee or participant to maintain the confidentiality of any
information delivered to it which is not publicly available.
(g) The Borrower may not assign, nor shall it cause, suffer or permit
any Guarantor to assign any rights, powers, duties or obligations under this
Agreement of the other Loan Documents without the prior written consent of all
the Lenders.
(h) Notwithstanding the fact that a Lender holding TROL Indebtedness
may assign all or a portion of its interest therein without the assignment of a
pro rata portion of its Revolving Credit Commitment, the Agent shall encourage
Lenders assigning a portion of its rights and obligations under this Agreement
who hold TROL Indebtedness to assign a like pro rata portion of its TROL
Indebtedness to the same Eligible Assignee. Should any Lender fail to make a pro
rata assignment of TROL Indebtedness held by it, the Agent shall, at the request
of the Borrower, assist the Borrower in locating an Eligible Assignee pursuant
to Section 4.7 to replace such assigning Lender.
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11.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram or telefacsimile, respectively (where the receipt of such
message is verified by return), or (iii) on the fifth Business Day after the day
on which mailed, if sent prepaid by certified or registered mail, return receipt
requested, in each case delivered, transmitted or mailed, as the case may be, to
the address or telefacsimile number, as appropriate, set forth below or such
other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
Wackenhut Corrections Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇, Controller and Chief
Accounting Officer
Telephone: (800) 666-5640 ext. 6646
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ Senterfitt & Edison, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile:(▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile:(▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
NationsBank, National Association
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any Guarantor, at the address set forth on the
signature page of the Facility Guaranty or other Loan
Document executed by such Guarantor, as the case may
be.
11.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although the payment of
such obligations may not have been accelerated. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 11.3 may, to
the
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fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
11.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
commitment hereunder or the Borrower has continuing obligations hereunder unless
otherwise provided herein. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in the Loan Documents shall
inure to the benefit of the successors and permitted assigns of the Lenders or
any of them.
11.5. Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses of the Agent in connection with the syndication, preparation,
execution, delivery, modification, and amendment of this Agreement, the other
Loan Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all reasonable costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable attorneys' fees and expenses and the
cost of internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
11.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Agent are affected thereby, by
the Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitments of the Lenders,
(ii) reduce the principal of or rate of interest on any Loan or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for the payment
of any scheduled installment of principal of or interest on any Loan or any fees
or other amounts payable hereunder or for termination of any Revolving Credit
Commitment, (iv) change the percentage of the Revolving Credit Commitments or of
the unpaid principal amount of the Notes, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action under this Section
or any other provision of this Agreement or (v) release any Guarantor; and
provided, further, that no such amendment or waiver which affects the rights,
privileges, or obligations of NationsBank as provider of the Swing Loans or
issuer of Letters of Credit, shall be effective unless signed in writing by
NationsBank.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on the
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Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances, except as otherwise expressly
provided herein. No delay or omission on any Lender's or the Agent's part in
exercising any right, remedy or option shall operate as a waiver of such or any
other right, remedy or option or of any Default or Event of Default.
11.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully- executed counterpart.
11.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. All representations, warranties, covenants, waivers
and agreements contained herein shall survive termination hereof until payment
in full of the Obligations unless otherwise provided herein. Notwithstanding the
foregoing, if after receipt of any payment of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrower shall be
liable to, and shall indemnify and hold the Agent or such Lender harmless for,
the amount of such payment surrendered until the Agent or such Lender shall have
been finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Agent or the Lenders in reliance upon such payment,
and any such contrary action so taken shall be without prejudice to the Agent or
the Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
11.9. Indemnification. (a) The Borrower agrees to indemnify and hold
harmless the Agent and each Lender and each of their affiliates and their
respective officers, directors and employees (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities, costs, and
expenses (including, without limitation, reasonable attorneys' fees) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or proceeding or
preparation of defense in connection therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of
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the proceeds of the Loans, except to the extent such claim, damage, loss,
liability, cost, or expense is finally judicially determined to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 11.9(a) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 11.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
11.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
11.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts
for, charges, or receives any consideration which constitutes interest in
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excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender's option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the
Borrower. As used in this paragraph, the term "Highest Lawful Rate" means the
maximum lawful interest rate, if any, that at any time or from time to time may
be contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
11.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.
(B) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
BROWARD, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 11.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (A) OR (B) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE
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APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
11.15. Judgment Currency. The Borrower, the Agent and each Lender
hereby agree that if, in the event that a judgment is given in relation to any
sum due to the Agent or any Lender hereunder, such judgment is given in a
currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), the Borrower agrees to
indemnify the agent or such Lender, as the case may be, to the extent that the
amount of the Original Currency which could have been purchased by the Agent in
accordance with normal banking procedures on the Business Day following receipt
of such sum is less than the sum which could have been so purchased by the agent
had such purchase been made on the day on which such judgment was given or, if
such day is not a Business Day, on the Business Day immediately preceding the
giving of such judgment, and if the amount so purchased exceeds the amount which
could have been so purchased had such purchase been made on the day on which
such judgment was given or, if such day is not a Business Day, on the Business
Day immediately preceding such judgment, the Agent or the applicable Lenders
agrees to remit such excess to the Borrower. The agreements in this Section
shall survive payment of all other Obligations.
11.16. Economic and Monetary Union in the European Community.
(a) The parties confirm that, except as provided in subsection (b)
below of this Section 11.16, the occurrence or non-occurence of an event
associated with economic and monetary union in the European Community will not
have the effect of altering any term of, or discharging or excusing performance
under, this Agreement, any other Loan Document, any Loan or any transaction
contemplated by any of the foregoing, nor give a party the right unilaterally to
alter or terminate this Agreement, any other Loan Document, any Loan or any
transaction contemplated by any of the foregoing or give rise to an Event of
Default or otherwise be the basis for the effective designation of the Revolving
Credit Termination Date.
88
95
"An event associated with economic and monetary union in the European
Community" includes, without limitation, each (and any combination) of the
following:
(i) the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise);
(ii) the fixing of conversion rates between a member
state's currency and the new currency or between the currencies of
member states;
(iii) the substitution of that new currency for the Euro
Currency as the unit of account of the European Community;
(iv) the introduction of that new currency as lawful
currency in a member state;
(v) the withdrawal from legal tender of any currency
that, before the introduction of the new currency, was lawful currency
in one of the member states; or
(vi) the disappearance or replacement of a relevant price
source for the Euro Currency or the national currency of any member
state, or the failure of the agreed sponsor (or a successor sponsor) to
publish or display a relevant rate, index, price, page or screen.
(b) Any agreement between the parties that amends or overrides the
provisions of this Section in respect of any Loan or any other transaction
contemplated by this Agreement or any of the Loan Documents will be effective if
it is in writing and expressly refers to this Section or to European monetary
union or to an event associated with economic and monetary union in the European
Community and would otherwise be effective in accordance with Section 11.6.
(c) The Borrower agrees that, notwithstanding anything to the
contrary contained in any agreement relating to "an event associated with
economic and monetary union in the European Community", upon the occurrence of
any such event, the Lenders shall have the right to convert any or all Loans in
an Alternative Currency of a member of the European Union into Loans denominated
in Dollars determined as of a date, as may be selected by the Agent in its sole
discretion
11.17. Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any advisor of any Lending
party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request
89
96
or demand of any regulatory agency or authority, (f) that is or becomes
available to the public or that is or becomes available to any Lending Party
other than as a result of a disclosure by any Lending Party prohibited by this
Agreement, (g) in connection with any litigation to which such Lending Party or
any of its affiliates may be a party, (h) to the extent necessary in connection
with the exercise of any remedy under this Agreement or any other Loan Document,
and (i) subject to provisions substantially similar to those contained in this
Section, to any actual or proposed participant or assignee.
[Signatures on following pages]
90
97
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
WACKENHUT CORRECTIONS CORPORATION
WITNESS:
By:
------------------------------ ------------------------------
Name:
-----------------------------
Title:
------------------------------ -----------------------------
Signature Page 1 of 8
98
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Signature Page 2 of 8
99
NATIONSBANK, NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Domestic Lending Office:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
------------------------------
Telephone: (704) 386-
Telefacsimile: (704) 386-
Wire Transfer Instructions:
NationsBank, National Association
ABA#
----------
Account No:
-----------------------------
Reference:
-----------------------------
Attention:
------------------------------
Eurodollar Lending Office:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
------------------------------
Telephone: (704) 386-
Telefacsimile: (704) 386-
Wire Transfer Instructions:
NationsBank, National Association
ABA#
----------
Account No.
-----------------------------
Reference:
-----------------------------
Attention:
------------------------------
Signature Page 3 of 8
100
SCOTIABANC INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, New York
ABA #▇▇▇▇▇▇▇▇▇
Account #▇▇▇▇▇▇▇
Attention: D. Legista
Reference: Wackehut Corrections Corporation
Signature Page 4 of 8
101
▇▇▇▇▇▇▇ BANK, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇▇▇ Technologies
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇
Account #0800053949
Attention: Commercial Loan Operations
Reference: Wackenhut Corrections Corporation
Signature Page 5 of 8
102
BANQUE PARIBAS
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
Bankers Trust
New York, New York
ABA #▇▇▇-▇▇▇-▇▇▇
Name of Account: Banque Paribas NY
Account #▇▇-▇▇▇-▇▇▇
Attention: Loan Servicing
Reference: Wackenhut Corrections Corporation
Signature Page 6 of 8
103
THE SAKURA BANK, LIMITED, ATLANTA
AGENCY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇▇ Guaranty Trust Co. of New York
New York, New York
ABA #021 000 238
Account Name: The Sakura Bank, Ltd., New York
Account #▇▇▇-▇▇-▇▇▇
In favor of: MTKB, Atlanta
A/C 8000100-1
Signature Page 7 of 8
104
SUMMIT BANK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
Summit Bank
Ridgefield Park, New Jersey
ABA #▇▇▇▇▇▇▇▇▇
Account #47902
Attention: CLO2
Signature Page 8 of 8
105
EXHIBIT A
Applicable Revolving Credit Commitment Percentages
Lender Revolving Applicable
------ Credit Commitment
Commitment Percentage
---------- ----------
NationsBank, National
Association $ %
ScotiaBanc Inc.
▇▇▇▇▇▇▇ Bank, N.A.
Banque Paribas
The Sakura Bank, Limited,
Atlanta Agency
Summit Bank
----------- ---------
$30,000,000 100%
A-1
106
EXHIBIT B
Form of Assignment and Acceptance
DATED ,
-------------- --
Reference is made to the Credit Agreement dated as of June __, 1997
(the "Agreement") among WACKENHUT CORRECTIONS CORPORATION, a Florida corporation
(the "Borrower"), the Lenders (as defined in the Agreement), and NationsBank,
National Association , as Agent for the Lenders ("Agent"). Unless otherwise
defined herein, terms defined in the Agreement are used herein with the same
meanings.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (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 Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note held by the Assignor and requests that the Agent
exchange such Note for new Notes payable to the order of the Assignee in an
amount equal to the Revolving Credit Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Revolving Credit Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
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; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor 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 decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such
B-1
107
powers and discretion under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section 4.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder 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.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance 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 all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
108
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: %
--------
Assignee's Revolving Credit Commitment: $
Aggregate outstanding principal amount --------
of Loans assigned: $
--------
Principal amount of Note payable to Assignee: $
--------
Principal amount of Note payable to Assignor: $
--------
Effective Date (if other than date
of acceptance by Agent): , 19
------- --
[NAME OF ASSIGNOR], as Assignor
By:
--------------------------------
Title:
Dated: , 19 _
--------------------
[NAME OF ASSIGNEE], as Assignee
By:
--------------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
B-3
109
Accepted [and Approved] *
this ___ day of __________, 19__
NATIONSBANK NATIONAL ASSOCIATION
By:
Title:
[Approved this_____day
of___________, 19__
WACKENHUT CORRECTIONS CORPORATION
By:_________________________]*
Title:
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
B-4
110
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of June __,
1997 (the "Agreement") among WACKENHUT CORRECTIONS CORPORATION, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
------------------------ --------------------- ----------------------------
------------------------
------------------------
------------------------ --------------------- ----------------------------
------------------------
------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the day of , 19 .
--- ------------------ --
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1
111
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank, National Association,
as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June __,
1997 the "Agreement") among WACKENHUT CORRECTIONS CORPORATION (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent that Loans of the type and amount set forth below be made on the
date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
----------- --------- --------- ---------------
Base Rate Loan
------ --------- ------------
Eurodollar Rate Loan
------ --------- ------------
Alternative Currency(4)
------ --------- ------------
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months or nine
months, if available.
(2) Must be $2,000,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
(4) Specify Pounds Sterling, Australian Dollars, or Canadian Dollars.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
D-1-1
112
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct in all material respects as of
the date hereof except that the reference to the financial statements in Section
6.6(a) of the Agreement are to those financial statements most recently
delivered to you pursuant to Section 7.1 of the Agreement (it being understood
that any financial statements delivered pursuant to Section 7.1(b) have not been
certified by independent public accountants) and attached hereto are any changes
to the Schedules referred to in connection with such representations and
warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
WACKENHUT CORRECTIONS CORPORATION
BY:
---------------------------------------
Authorized Representative
DATE:
------------------------------------
▇-▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
Form of Borrowing Notice--Swing Line Loans
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June __,
1997(the "Agreement") among WACKENHUT CORRECTIONS CORPORATION (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to NationsBank that a Swing Line Loan of the amount set forth below be made on
the date indicated:
Interest
Amount(1) Period Date of Loan
--------- ------ ------------
CD Rate Loan ,
--------- ---------- ---------- ----
-------------------
(1) Must be a minimum of $200,000, unless a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[insert transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct in all material respects as of
the date hereof except that the reference to the financial statements in Section
6.6(a) of the Agreement are to those financial statements most recently
delivered to you pursuant to Section 7.1 of the Agreement (it being understood
that any financial statements delivered pursuant to Section 7.1(b) have not been
certified by independent public
D-2-1
114
accountants) and attached hereto are any changes to the Schedules referred to in
connection with such representations and warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
WACKENHUT CORRECTIONS CORPORATION
BY:
----------------------------------
Authorized Representative
DATE:
---------------------------------
D-2-2
115
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association,
as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June __,
1997(the "Agreement") among WACKENHUT CORRECTIONS CORPORATION (the "Borrower"),
the Lenders (as defined in the Agreement), and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
----------- --------- --------- ---------------
Base Rate Loan
------ --------- ------------
Eurodollar Rate Loan
------ --------- ------------
Alternative Currency(4)
------ --------- ------------
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months or nine
months, if available.
(2) Must be $2,000,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
(4) Specify Pounds Sterling, Australian Dollars, or Canadian Dollars.
WACKENHUT CORRECTIONS CORPORATION
BY:
--------------------------------------
Authorized Representative
DATE:
-------------------------------------
E-1
116
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$30,000,000 Charlotte, North Carolina
________ __, 1997
FOR VALUE RECEIVED, WACKENHUT CORRECTIONS CORPORATION, a Florida
corporation having its principal place of business located in Palm Beach
Gardens, Florida (the "Borrower"), hereby promises to pay to the order of
________________________________ (the "Lender"), in its individual capacity, at
the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders (the
"Agent"), located at One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Agent may designate in writing) at the times set forth in the Credit
Agreement dated as of June __, 1997 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders") and the Agent (the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the principal amount of
THIRTY MILLION DOLLARS ($30,000,000) or, if less than such principal amount, the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to
the Borrower pursuant to the Agreement on the Revolving Credit Termination Date
or such earlier date as may be required pursuant to the terms of the Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates provided in Article
II of the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2 (a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-1-1
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This Revolving Note is one of the Revolving Notes in the principal
amount of $40,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Revolving Loans evidenced hereby were or are made and are to be repaid. This
Revolving Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Revolving Note
any collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
WACKENHUT CORRECTIONS CORPORATION
WITNESS:
By:
-------------------------------- ------------------------------
Name:
-------------------------------- ----------------------------
Title:
---------------------------
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EXHIBIT F-2
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$5,000,000 Charlotte, North Carolina
__________ __, 1997
FOR VALUE RECEIVED, WACKENHUT CORRECTIONS CORPORATION, a Florida
corporation having its principal place of business located in Palm Beach
Gardens, Florida (the "Borrower"), hereby promises to pay to the order of
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (the "Lender"), in its individual
capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, located at One
Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the Agent may designate in
writing) at the times set forth in the Credit Agreement dated as of June __,
1997 among the Borrower, the financial institutions party thereto (collectively,
the "Lenders") and the Agent (the "Agreement" -- all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America, in immediately
available funds, the principal amount of FIVE MILLION DOLLARS ($5,000,000) or,
if less than such principal amount, the aggregate unpaid principal amount of all
Swing Line Loans made by the Lender to the Borrower pursuant to the Agreement on
the Revolving Credit Termination Date or such earlier date as may be required
pursuant to the terms of the Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on the
dates and at the rates provided in Article II of the Agreement. All or any
portion of the principal amount of Loans may be prepaid or required to be
prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2 (a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-2-1
119
This Revolving Note is one of the Revolving Notes in the principal
amount of $5,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Revolving Loans evidenced hereby were or are made and are to be repaid. This
Revolving Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Revolving Note
any collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
WACKENHUT CORRECTIONS CORPORATION
WITNESS:
By:
-------------------------------- ------------------------------
Name:
-------------------------------- -----------------------------
Title:
---------------------------
F-2-2
120
EXHIBIT G
Form of Opinion of Borrower's Counsel
June __, 1997
NationsBank, National Association,
as Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
NationsBank ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: $30,000,000 REVOLVING CREDIT AND LETTER OF CREDIT FACILITIES AMONG
NATIONSBANK, NATIONAL ASSOCIATION, AS AGENT, THE LENDERS PARTY THERETO
AND WACKENHUT CORRECTIONS CORPORATION
Ladies and Gentlemen:
We have acted as counsel to WACKENHUT CORRECTIONS CORPORATION, a
Florida corporation (the "Borrower"), and the Guarantors in connection with the
Revolving Loan in the amount of $30,000,000 (the "Revolving Loan"), including
the $10,000,000 Letter of Credit Facility constituting part of the Revolving
Credit Facility (the "LC Facility"), each being made available to the Borrower
by you on this date pursuant to the Credit Agreement of even date herewith among
you, the Lenders and the Borrower (the "Credit Agreement"), and the other
transactions contemplated under the Credit Agreement.
This opinion is being delivered in accordance with the conditions set
forth in Section 5.1 of the Credit Agreement. All capitalized terms not
otherwise defined herein shall have the meanings provided therefor in the Credit
Agreement.
As such counsel, we have reviewed the following documents:
1. the Credit Agreement;
2. the Revolving Notes;
3. the Facility Guaranty;
G-1
121
4. the LC Account Agreement.
The documents described in items 1 through 4 immediately above are
referred to herein as the "Loan Documents".
For purposes of the opinions expressed below, we have assumed that all
natural persons executing the Loan Documents have legal capacity to do so; that
all signatures (other than those of representatives of the Borrower and the
Guarantors on the Loan Documents) on all documents submitted to us are genuine;
that all documents submitted to us as originals (other than the Loan Documents)
are authentic; and that all documents submitted to us as certified copies or
photocopies conform to the originals of such documents, which themselves are
authentic.
In addition, for purposes of giving this opinion, we have examined such
corporate records of the Borrower and the Guarantors, certificates of public
officials, certificates of appropriate officials of the Borrower and the
Guarantors, and such other documents, and have made such inquiries as we have
deemed appropriate.
Based upon and subject to the foregoing, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation and is duly
qualified to transact business as a foreign corporation and is in good standing
in ___________________ and in all other jurisdictions in which the nature of its
business requires such qualification. The Borrower has full corporate power and
authority to own its assets and conduct the businesses in which it is now
engaged and as are expressly contemplated by the Loan Documents, and has full
corporate power and authority to enter into each of the Loan Documents to which
it is a party and to perform its obligations thereunder.
2. Each of the Loan Documents to which the Borrower is a party has been
duly authorized by the Board of Directors of the Borrower (and by any required
shareholder action), has been duly executed and delivered by the Borrower, and
constitutes the legal, valid and binding obligation, agreement, instrument or
conveyance, as the case may be, of the Borrower, enforceable against the
Borrower in accordance with its respective terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
3. Each Guarantor is a corporation [or partnership, as the case may be]
duly organized, validly existing and in good standing under the laws of its
respective state of its formation and is duly qualified to transact business as
a foreign entity and is in good standing in all jurisdictions in which the
nature of its business requires such qualification[ and in which the failure to
be so qualified would reasonably be likely to result in a Material Adverse
Effect]. Each Guarantor has full corporate power and authority to own its assets
and conduct the businesses in which it is now engaged and as expressly
contemplated in the Loan Documents, and has full corporate power and authority
to enter into each of the Loan Documents to which it is a party and to perform
its obligations thereunder.
G-2
122
4. Each of the Loan Documents to which each Guarantor is a party has
been duly authorized by the Board of Directors of such Guarantor (and by any
required shareholder action), has been duly executed and delivered by such
Guarantor, and constitutes the legal, valid and binding obligation, agreement or
instrument, as the case may be, of such Guarantor, enforceable against such
Guarantor in accordance with its respective terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
5. Neither the execution or delivery of, nor performance by the
Borrower or any Guarantor of its obligations under, the Loan Documents (a) does
or will conflict with, violate or con stitute a breach of (i) the charter[,
partnership agreement] or bylaws of the Borrower or any Guarantor, (ii) any
laws, rules or regulations applicable to the Borrower or any other Guarantor, or
(iii) any contract, agreement, indenture, lease, instrument, other document,
judgment, writ, determination, order, decree or arbitral award to which the
Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary
or any Guarantor or any of their properties is bound, (b) requires the prior
consent of, notice to, license from or filing with any Governmental Authority
which has not been duly obtained or made on or prior to the date hereof, or (c)
does or will result in the creation or imposition of any lien, pledge, charge or
encumbrance of any nature upon or with respect to any of the properties of the
Borrower or any Subsidiary or any Guarantor, except for the Liens in your favor
expressly created pursuant to the Loan Documents.
6. There is no pending or, to the best of our knowledge, threatened,
action, suit, investigation or proceeding (including, without limitation, any
action, suit, investigation, or proceeding under any environmental or labor
law), nor is there any basis therefor, before or by any court, or governmental
department, commission, board, bureau, instrumentality, agency or arbitral
authority, (i) which calls into question the validity or enforceability of any
of the Loan Documents, or the titles to their respective offices or authority of
any officers of the Borrower or any Guarantor or (ii) an adverse result in which
would reasonably be likely to have a Material Adverse Effect.
7. Neither the Borrower nor any Subsidiary nor any Guarantor is subject
to any charter, bylaw or other corporate [or partnership] restrictions nor, to
the best of our knowledge, is the Borrower or any Subsidiary or any Guarantor
party to or bound by any contract or agreement which (i) materially and
adversely affects its business, properties or condition (financial or
otherwise), or (ii) restricts, limits, or prohibits performance of any of their
respective obligations pursuant to the terms of the Loan Documents.
8. To the best of our knowledge after due inquiry, neither the Borrower
nor any Subsidiary nor any Guarantor (i) is in default (which default has not
been waived) under any agreement, document or instrument to which it is a party
or by which it or any of its assets is bound or (ii) is in violation of any law,
rule, regulation, judgment, writ, determination, order, decree or arbitral award
to which the Borrower or any Subsidiary or any Guarantor is a party or by which
the Borrower or any Subsidiary or any Guarantor or any of their respective
properties is bound, which default or violation, as the case may be, would
constitute a Default or Event of Default under the Credit Agreement or otherwise
could reasonably be likely to have a Material Adverse Effect.
G-3
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9. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the proceeds of the Loans provided for
in the Loan Documents, will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended, any regulations issued pursuant
thereto, or regulations G, T, U or X of the Board of Governors of the Federal
Reserve System.
Our opinions contained herein are rendered solely in connection with
the transactions contemplated under the Loan Documents and may not be relied
upon in any manner by any Person other than the addressees hereof, any successor
or assignee of any addressee (including successive assignees) and any Person who
shall acquire a participation interest in the interest of any Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to in any publication or document, in whole or in part,
for any purposes whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as
may be required of any Reliance Party by applicable law or regulation or in
accordance with any auditing or oversight function or request of regulatory
agencies to which a Reliance Party is subject.
Very truly yours,
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124
EXHIBIT H
Compliance Certificate
NationsBank, National Association,
as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June __,
1997 (the "Agreement") among Wackenhut Corrections Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Agreement) and
NationsBank, National Association (South), as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
__________ (the "Determination Date") as follows:
1. Calculations:
A. Calculation of Consolidated Debt Service
Coverage Ratio
1. Consolidated EBITDA* $
--------------
2. Consolidated Lease Payments $
--------------
3. Sum of A.1 + A.2 $
--------------
4. Consolidated Interest Expense $
--------------
5. Consolidated Lease Payments $
--------------
6. Sum of A.4 + A.5 $
--------------
7. Ratio of A.3 to A.6 . to 1.00
-- --
B. Compliance with Section 8.1(a):
Consolidated Net Worth
1. Required Consolidated Net Worth
at the last day of
the most recent fiscal quarter $
--------------
2. Consolidated Net Income x 0.5 $
--------------
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125
3. Sum of B.1 + B.2 $
--------------
4. Actual Consolidated Net Worth $
--------------
REQUIRED: B.4 MUST NOT BE LESS THAN B.3
C. Compliance with Section 8.1(b):
Consolidated Leverage Ratio
1. Consolidated Indebtedness $
--------------
2. Consolidated EBITDA* $
--------------
3. Interest on TROL Indebtedness $
--------------
4. Sum of C.2 + C.3 $
-------------
5. Ratio of C.1 to C.4 . to 1.00
-- --
REQUIRED: C.5 MUST NOT BE GREATER
THAN 3.75:1.00 THROUGH 9/30/98 AND
3.50:1.00 THEREAFTER
D. Compliance with Section 8.1(c):
Consolidated Fixed Charge Coverage Ratio
1. Consolidated EBITDA* $
--------------
2. Consolidated Lease Payments $
--------------
3. Sum of D.1 + D.2 $
--------------
4. Consolidated Interest Expense $
--------------
5. Required principal payments of
Consolidated Indebtedness $
--------------
6. Consolidated Lease Payments $
--------------
7. Restricted Payments $
--------------
8. Sum of D.4 + D.5 + D.6 + D.7 $
--------------
9. Ratio of D.3 to D.8 $
--------------
REQUIRED: D.9 MUST NOT BE LESS THAN 2.00
TO 1.00
H-2
126
E. Compliance with Section 8.1(d):
Consolidated Total Capitalization
1. Consolidated Indebtedness $
--------------
2. Consolidated Total Capitalization $
--------------
3. E.1 / E.3 x 100 %
--------------
REQUIRED: E.3 MUST NOT EXCEED 55%
F. Compliance with Section 8.3:
Capital Expenditures
1. Capital Expenditures $
--------------
REQUIRED: E.1 MUST NOT EXCEED
$85,000,000 IN FISCAL YEAR 1997,
$75,000,000 IN FISCAL YEAR 1998,
AND $60,000,000 EACH
FISCAL YEAR THEREAFTER.
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the
keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and (b) no
Default or Event of Default specified in Article IX of the
Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred
since __________ (the date of the last similar certification),
the Borrower proposes to take the following action with
respect to such Default or Event of Default:
-----------------
-------------------------------------------------------------
------------------- .
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 7.1 of the
Agreement.
* See attached Schedule 1 for EBITDA calculation.
H-3
127
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:
--------------------------------------
Authorized Representative
Name:
------------------------------------
Title:
-----------------------------------
H-4
128
Schedule 1 to Compliance Certificate
[Insert Applicable Determination Date __, ____]
Consolidated EBITDA Calculation:
A. Consolidated Net Income $
----------
B. Consolidated Interest Expense $
----------
C. Taxes on income $
----------
D. Amortization $
----------
E. Depreciation $
----------
F. Consolidated EBITDA $
(A + B + C + D + E) ----------
H-5
129
EXHIBIT I
Form of Facility Guaranty
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty Agreement" or
this "Guaranty"), dated as of ________ __, 1997, is made by each of the
undersigned (each a "Guarantor" and collectively the "Guarantors") to
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as a Lender
("NationsBank"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, in its capacity as agent for the Lenders (in such capacity, and
together with any successors in such capacity, the "Agent") party to the Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS, the Agent and the Lenders have agreed to provide Wackenhut
Corrections Corporation, a Florida corporation (the "Borrower"), revolving
credit and letter of credit facilities pursuant to the terms of that certain
Credit Agreement dated as of the date hereof among the Borrower and the Agent
(as from time to time amended, supplemented or restated, the "Credit
Agreement"); and
WHEREAS, each Guarantor is a Subsidiary of the Borrower and will
materially benefit from the Loans to be made and the Letters of Credit to be
issued under the Credit Agreement, and each Guarantor is willing to enter into
this Guaranty Agreement to provide an inducement for the Lenders to make Loans
and issue Letters of Credit thereunder;
NOW, THEREFORE, in order to induce the Agent and the Lenders to enter
into the Credit Agreement and the other Loan Documents and in consideration of
the premises and the mutual covenants contained herein, the parties hereto agree
as follows:
1. DEFINITIONS. All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the Agent
and the Lenders the payment in full of the Borrower's Liabilities (as defined
below). For all purposes of this Guaranty Agreement, "Borrower's Liabilities"
means: (a) the Borrower's prompt payment in full, when due or declared due and
at all such times, of all Obligations and all other amounts pursuant to the
terms of the Credit Agreement, the Notes, and all other Loan Documents executed
in connection with the Credit Agreement heretofore, now or at any time or times
hereafter owing, arising, due or payable from the Borrower to any one or more of
the Lenders, including without limitation principal, interest, premium or fee
(including, but not limited to, loan fees and attorneys' fees and expenses).
Each Guarantor agrees that it is jointly and severally, directly and primarily
liable for the Borrower's Liabilities.
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130
3. LIMIT OF LIABILITY. The obligations of the Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable
state law.
4. PAYMENT. If the Borrower shall default in payment or
performance of any Borrower's Liabilities when and as the same shall become due,
whether according to the terms of the Credit Agreement, by acceleration, or
otherwise, or upon the occurrence of any other Event of Default under the Credit
Agreement that has not been cured or waived, then each Guarantor, upon demand
thereof by the Agent or its successors or assigns, will, as of the date of the
Agent's demand, fully pay to the Agent, for the benefit of itself and the
Lenders, subject to any restriction set forth in Section 3 hereof, an amount
equal to all Guarantor's Obligations then due and owing.
5. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of the
validity, legality or enforceability of the Credit Agreement, the Notes or any
other Loan Document or any other guaranty of the Borrower's Liabilities, and
shall not be affected by any action taken under the Credit Agreement, the Notes
or any other Loan Document, any other guaranty of the Borrower's Liabilities, or
any other agreement between the Agent or the Lenders and the Borrower or any
other person, in the exercise of any right or power therein conferred, or by any
failure or omission to enforce any right conferred thereby, or by any waiver of
any covenant or condition therein provided, or by any acceleration of the
maturity of any of the Borrower's Liabilities, or by the release or other
disposal of any Collateral or other security for any of the Borrower's
Liabilities, or by the dissolution of the Borrower or the combination or
consolidation of the Borrower into or with another entity or any transfer or
disposition of any assets of the Borrower or by any extension or renewal of the
Credit Agreement, any of the Notes or any other Loan Document, in whole or in
part, or by any modification, alteration, amendment or addition of or to the
Credit Agreement, any of the Notes or any other Loan Document, any other
guaranty of the Borrower's Liabilities, or any other agreement between the Agent
or the Lenders and the Borrower or any other Person, or by any other
circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which may or might in any manner or to any extent vary the risks of
any Guarantor, or might otherwise constitute a legal or equitable discharge of a
surety or guarantor; it being the purpose and intent of the parties hereto that
this Guaranty Agreement and the Guarantors' Obligations hereunder shall be
absolute and unconditional under any and all circumstances and shall not be
discharged except by payment as herein provided.
6. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby
guarantees that the Guarantors' Obligations will be paid in (i) the same
Alternative Currency in the case of Loans made and Letters of Credit drawn in
Alternative Currencies, and (ii) in Dollars in all other cases and in
immediately available funds, regardless of any law, regulation or decree now or
hereafter in effect that might in any manner affect the Borrower's Liabilities,
or the rights of the Agent or any Lender with respect thereto as against the
Borrower, or cause or permit to be invoked any alteration in the time, amount or
manner of payment by the Borrower of any or all of the Borrower's Liabilities.
I-2
131
7. EVENTS OF DEFAULT. In the event that (a) any Guarantor shall file a
petition to take advantage of any insolvency statute; (b) any Guarantor shall
commence or suffer to exist a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or substantially
all of its property; (c) any Guarantor shall file a petition or answer seeking
reorganization or arrangement or similar relief under the Federal bankruptcy
laws or any other applicable law or statute of the United States of America or
any state or similar law of any other country; (d) a court of competent
jurisdiction shall enter an order, judgment or decree appointing a custodian,
receiver, trustee, liquidator or conservator of any Guarantor or of the whole or
substantially all of its properties, or approve a petition filed against any
Guarantor seeking reorganization or arrangement or similar relief under the
Federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law of any other country, or if, under
the provisions of any other law for the relief or aid of debtors, a court of
competent jurisdiction shall assume custody or control of any Guarantor or of
the whole or substantially all of its properties and such order, judgment,
decree, approval or assumption remains unstayed or undismissed for a period of
thirty (30) consecutive days; (e) there is commenced against any Guarantor any
proceeding or petition seeking reorganization, arrangement or similar relief
under the Federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state, which proceeding or petition remains
unstayed or undismissed for a period of thirty (30) consecutive days; (f) there
shall occur an Event of Default under the Credit Agreement; (g) any default
shall occur in the payment of amounts due hereunder; or (h) any other default in
compliance with the terms hereof shall occur which remains uncured or unwaived
for a period of thirty (30) days after the earlier of notice of such default
from the Agent or an officer of a Guarantor becomes aware of such default (each
of the foregoing an "Event of Default" hereunder), then notwithstanding any
Collateral or other security that the Agent or any Lender may process from
Borrower or any Guarantor or any other guarantor of the Borrower's Liabilities,
or any other party, at the Agent's election and without notice thereof or demand
therefor, so long as such Event of Default shall be continuing, the Guarantors'
Obligations shall immediately become due and payable.
8. SUITS. Each Guarantor from time to time shall pay to the Agent for
the benefit of itself and the Lenders, on demand, at the Agent's place of
business set forth in the Credit Agreement, the Guarantors' Obligations as they
become or are declared due, and in the event such payment is not made forthwith,
the Agent or any Lender or any of them may proceed to suit against any one or
more or all of the Guarantors. At the Agent's election, one or more and
successive or concurrent suits may be brought hereon by the Agent against any
one or more or all of the Guarantors, whether or not suit has been commenced
against the Borrower, any other guarantor of the Borrower's Liabilities, or any
other Person and whether or not the Agent or Lender has taken or failed to take
any other action to collect all or any portion of the Borrower's Liabilities.
9. SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against the Agent or Lender as a defense, counterclaim, set-off or cross claim,
any defense (legal or equitable) or other claim which such Guarantor may now or
at any time hereafter have against the Borrower, the Agent or the Lenders,
without waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to such Guarantor. If at any time hereafter the Agent or any
Lender employs counsel for advice or other representation to enforce the
Guarantors' Obligations that arise out of an Event of Default, then, in any of
the foregoing events, all of the reasonable attorneys' fees arising
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from such services and all expenses, costs and charges in any way or respect
arising in connection therewith or relating thereto shall be jointly and
severally paid by the Guarantors to the Agent, for the benefit of itself and the
Lenders, on demand.
10. WAIVER; SUBROGATION; SUBORDINATION.
(a) Each Guarantor hereby waives notice of the following events or
occurrences: (i) the Agent's acceptance of this Guaranty Agreement; (ii) the
Lenders' heretofore, now or from time to time hereafter loaning monies or giving
or extending credit to or for the benefit of the Borrower, whether pursuant to
the Credit Agreement or the Notes or any amendments, modifications, or
supplements thereto, or replacements or extensions thereof; (iii) the Agent or
the Lenders or the Borrower heretofore, now or at any time hereafter, obtaining,
amending, substituting for, releasing, waiving or modifying the Credit
Agreement, the Notes or any other Loan Documents; (iv) presentment, demand,
notices of default, non-payment, partial payment and protest; (v) the Agent or
the Lenders heretofore, now or at any time hereafter granting to the Borrower
(or any other party liable to the Lenders on account of the Borrower's
Liabilities) any indulgence or extensions of time of payment of the Borrower's
Liabilities; and (vi) the Agent or the Lenders heretofore, now or at any time
hereafter accepting from the Borrower or any other person, any partial payment
or payments on account of the Borrower's Liabilities or any collateral securing
the payment thereof or the Agent settling, subordinating, compromising,
discharging or releasing the same. Each Guarantor agrees that the Agent and each
Lender may heretofore, now or at any time hereafter do any or all of the
foregoing in such manner, upon such terms and at such times as Agent or such
Lender, in its sole and absolute discretion, deems advisable, without in any way
or respect impairing, affecting, reducing or releasing such Guarantor from the
Guarantors' Obligations, and each Guarantor hereby consents to each and all of
the foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of the Guarantors' Obligations under this Guaranty Agreement may be
enforced by the Agent on behalf of itself and the Lenders upon demand by the
Agent to such Guarantor without the Agent being required, each Guarantor
expressly waiving any right it may have to require the Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the Borrower or
any other Guarantor or any other guarantor of the Borrower's Liabilities, IT
BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY EACH GUARANTOR THAT
DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY
EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT, or (ii)
seek to enforce or resort to any remedies with respect to any, Liens or
encumbrances granted to the Agent by the Borrower or any other Person on account
of the Borrower's Liabilities or any guaranty thereof. Neither the Agent nor any
Lender shall have any obligation to protect, secure or insure any of the
foregoing security interests, Liens or encumbrances on the properties or
interests in properties subject thereto. The Guarantors' Obligations shall in no
way be impaired, affected, reduced, or released by reason of the Agent's or any
Lender's failure or delay to do or take any of the acts, actions or things
described in this Guaranty Agreement including, without limiting the generality
of the foregoing, those acts, actions and things described in this Section 10.
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(c) Each Guarantor further agrees with respect to this Guaranty
Agreement that it shall have no right of subrogation, reimbursement or
indemnity, nor any right of recourse to security for the Borrower's Liabilities
in each case until after all the Borrower's Liabilities have been paid in full.
This waiver is expressly intended to prevent the existence of any claim in
respect to such reimburse ment by the Guarantor against the estate of Borrower
within the meaning of Section 101 of the Bankruptcy Code, and to prevent the
Guarantor from constituting a creditor of Borrower in respect of such
reimbursement within the meaning of Section 547(b) of the Bankruptcy Code in the
event of a subsequent case involving the Borrower.
(d) Until the Guarantors' Obligations are paid in full and the Lenders
are under no further obligation to lend or extend funds or credit which would
constitute Guarantors' Obligations, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations of the
Borrower to the Guarantor to the Guarantors' Obligations, and all amounts due
under such debts, liabilities, or obligations shall, upon the occurrence and
during the continuance of an Event of Default, be collected and paid over
forthwith to the Lenders on account of the Guarantors' Obligations and, pending
such payment, shall be held by each Guarantor as agent and bailee of the Lenders
separate and apart from all other funds, property and accounts of the Guarantor.
Each Guarantor, at the reasonable request of the Lenders, shall execute such
further documents in favor of the Lenders to further evidence and support the
purpose of this Section 10(d).
11. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date of the initial Advance under the Credit Agreement and
shall continue in full force and effect until the Borrower's Obligations are
fully paid and the Credit Agreement has terminated. The Agent shall give each
Guarantor written notice of such termination at each Guarantor's address set
forth below such Guarantor's execution hereof on the signature pages of this
Guaranty or such other address for the Guarantor as such Guarantor shall give
notice to the Agent in the manner provided for the giving of notices under the
Credit Agreement (the "Guarantor's Address"). This Guaranty Agreement shall be
binding upon and inure to the benefit of each Guarantor, the Agent and the
Lenders and their respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, without the prior written consent of the Agent,
assign any rights, powers, duties or obligations hereunder. Any claim or claims
that the Agent and the Lenders may at any time hereafter have against any
Guarantor under this Guaranty Agreement may be asserted by the Agent or any
Lender by written notice directed to any one or more or all of the Guarantors at
the applicable Guarantor's Address.
12. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to the Agent for the benefit of itself and the Lenders that it is duly
authorized to execute, deliver and perform this Guaranty Agreement, that this
Guaranty Agreement is legal, valid, binding and enforceable against such
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles; and that such Guarantor's execution, delivery and performance of
this Guaranty Agreement do not violate or constitute a breach of its certificate
of incorporation or charter or governance documents or any agreement to which
such Guarantor is a party, or any applicable laws.
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13. EXPENSES. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including attorney's fees,
incurred by the Agent in connection with the enforcement of this Guaranty
Agreement.
14. REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Agent under the Credit Agreement or this Guaranty
Agreement is rescinded or must be restored for any reason.
15. COUNTERPARTS. This Guaranty Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall constitute one and
the same instrument.
16. RELIANCE. Each Guarantor represents and warrants to the Agent, for
the benefit of the Agent and the Lenders, that: (a) such Guarantor has adequate
means to obtain from Borrower, on a continuing basis, information concerning
Borrower and Borrower's financial condition and affairs and has full and
complete access to Borrower's books and records; (b) such Guarantor is not
relying on the Agent or any Lender, its or their employees, agents or other
representatives, to provide such information, now or in the future; (c) such
Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) such Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of Borrower and Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; and (e) such Guarantor has not depended or relied on
the Agent or any Lender, its or their employees, agents or representatives, for
any information whatsoever concerning Borrower or Borrower's financial condition
and affairs or other matters material to such Guarantor's decision to provide
this Guaranty or for any counseling, guidance, or special consideration or any
promise therefor with respect to such decision. Each Guarantor agrees that
neither the Agent nor any Lender has any duty or responsibility whatsoever, now
or in the future, to provide to any Guarantor any information concerning
Borrower or Borrower's financial condition and affairs, other than as expressly
provided herein, and that, if such Guarantor receives any such information from
the Agent or any Lender, its or their employees, agents or other
representatives, such Guarantor will independently verify the information and
will not rely on the Agent or any Lender, its or their employees, agents or
other representatives, with respect to such information.
17. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such telefacsimile number for
such party and the receipt of such message is verified by the sender's
telefacsimile machine, (iii) on the fifth Business Day after the day on which
mailed, if sent prepaid by certified or registered mail, return receipt
requested, in each case delivered, transmitted or mailed, as the case may be, to
the Guarantor's Address or telefacsimile number, as appropriate.
18. TERMINATION. This Guaranty Agreement and all obligations of the
Guarantors hereunder shall terminate without delivery of any instrument or
performance of any act by any party
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on the date when all of the Obligations have been fully paid and the Credit
Agreement has terminated.
19. GOVERNING LAW; WAIVERS OF TRIAL BY JURY, ETC.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
BROWARD, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE GUARANTOR'S ADDRESS (AS HEREIN
DEFINED) OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE
JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
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ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT OR DELIVERED OR THAT
MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH
PARTY HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
GUARANTORS:
WITNESS:
By:
------------------------- -------------------------------
Name:
------------------------------
Title:
------------------------- -----------------------------
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Telefacsimile:
--------------------
WITNESS:
By:
------------------------- -------------------------------
Name:
------------------------------
Title:
------------------------- -----------------------------
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Telefacsimile:
--------------------
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WITNESS: NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By:
------------------------- -------------------------------
Name:
------------------------------
Title:
------------------------- -----------------------------
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EXHIBIT J
Form of LC Account Agreement
LC ACCOUNT AGREEMENT
THIS LC ACCOUNT AGREEMENT (the "Agreement") dated as of June __, 1997,
and made between WACKENHUT CORRECTIONS CORPORATION, a Florida corporation (the
"Pledgor"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as a Lender ("NationsBank") and as Agent (in such capacity herein
and together with any successors in such capacity, the "Agent") for the lenders
(the "Lenders") party to the Credit Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, the Pledgor, the Lenders, and the Agent have entered into that
certain Credit Agreement dated as of the date hereof (as may hereafter be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof and in effect, hereinafter referred to as the
"Credit Agreement");
WHEREAS, as a condition precedent to the Lenders' obligations to make
the Loans or to issue Letters of Credit, the Pledgor is required to execute and
deliver to the Agent a copy of this Agreement on or before the Closing Date;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, the Pledgor and the Agent hereby
agree as follows:
Section 1. Definitions. Capitalized terms used in this Agreement shall
have the following meanings:
"Collateral" means (a) all funds from time to time on deposit in the LC
Account; (b) all Investments and all certificates and instruments from time to
time representing or evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Agent for or on behalf of the Pledgor in
substitution for or in addition to any or all of the Collateral described in
clause (a) or (b) above; (d) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Collateral described in
clause (a), (b) or (c) above; and (e) to the extent not covered by clauses (a)
through (d) above, all proceeds of any or all of the foregoing Collateral.
"Investments" means those investments, if any, made by the Agent
pursuant to Section 5 hereof.
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"LC Account" means the cash collateral account established and
maintained pursuant to Section 2 hereof.
"Secured Obligations" means (i) all obligations of the Pledgor now
existing or hereafter arising under or in respect of the Credit Agreement or the
Notes (including, without limitation, the Pledgor's obligation to pay principal
and interest and all other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the obligations
contained in the Credit Agreement or the Notes) or any documents or agreement
related to the Credit Agreement or the Notes; and (ii) without duplication, all
obligations of the Pledgor now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all charges, fees,
expenses, commissions, reimbursements, indemnities and other payments related to
or in respect of the obligations contained in this Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
Section 2. LC Account; Cash Collateralization of Letters of Credit.
(i) From and after the occurrence of an Event of Default, the
Agent shall establish and maintain at the offices of NationsBank, N.A.
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in the name of
the Agent and under the sole dominion and control of the Agent, a cash
collateral account designated as Wackenhut Corrections Cash LC Account
(the "LC Account").
(ii) In accordance with Article IX of the Credit Agreement, in
the event that an Event of Default has occurred and shall not have been
waived pursuant to Section 11.6 of the Credit Agreement and the Pledgor
is required to pay to Agent an amount equal to the maximum amount
remaining undrawn or unpaid under the Letters of Credit, the Agent
shall, upon receipt of any such amounts, exercise the remedies set
forth in Section 12 hereof and shall apply the proceeds as provided in
Article IX of the Credit Agreement. Any such amounts received by the
Agent shall be deposited in the LC Account. Upon a drawing under the
Letters of Credit in respect of which any amounts described above have
been deposited in the LC Account, the Agent shall apply such amounts to
reimburse NationsBank for the amount of such drawing. In the event the
Letters of Credit are canceled or expire or in the event of any
reduction in the maximum amount available at any time for drawing under
such Letters of Credit (the "Maximum Available Amount"), the Agent
shall apply the amount then in the LC Account designated to reimburse
NationsBank for any drawings under the Letters of Credit less the
Maximum Available Amount immediately after such cancellation,
expiration or reduction, if any, first, to the cash collateralization
of the Letters of Credit if the Pledgor has failed to pay all or a
portion of the maximum amounts described above, second, to the payment
in full of the outstanding Secured Obligations and third, the balance,
if any, to the Pledgor.
(iii) Interest received in respect of Investments of any
amounts deposited in the LC Account pursuant to clause (ii) of this
Section 2 shall be delivered by Agent to the
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Pledgor on the last Business Day of each calendar month or, if earlier,
upon cancellation or expiration of or drawing of the Maximum Available
Amount for drawing under the Letters of Credit, as the case may be, in
respect of which such amounts were so deposited; provided, however,
that the Agent shall not deliver to the Pledgor any such interest
received in respect of Investments of any amounts deposited in the LC
Account pursuant to this Section 2 if an Event of Default has occurred
and shall not have been waived pursuant to Section 11.6 of the Credit
Agreement or unless all outstanding Secured Obligations have been
indefeasibly paid in full in cash.
Section 3. Pledge; Security for Secured Obligations. The Pledgor hereby
pledges to the Agent (for itself and on behalf of the Lenders) a first priority
lien and security interest in, the Collateral, as collateral security for the
prompt payment in full when due, whether at stated maturity, by acceleration or
otherwise (including, without limitation, the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy or the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code), of all Secured Obligations.
Section 4. Delivery of Collateral. All certificates or instruments, if
any, representing or evidencing the Collateral shall be delivered to and held by
the Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the
Agent. In the event any Collateral is not evidenced by a certificate, a
notation, reflecting title in the name of the Agent or the security interest of
the Agent, shall be made in the records of the issuer of such Collateral or in
such other appropriate records as the Agent may require, all in form and
substance reasonably satisfactory to the Agent. The Agent shall have the right,
at any time and without notice to the Pledgor, to transfer to or to register in
the name of the Agent or any of its nominees any or all of the Collateral. In
addition, the Agent shall have the right at any time to exchange certificates or
instruments representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
Section 5. Investing of Amounts in the LC Account; Amounts held by the
Agent. Cash held by the Agent in the LC Account shall not be invested or
reinvested except as provided in this Section 5.
(i) Except as otherwise provided in Section 12 hereof, any
funds on deposit in the LC Account shall be invested by the Agent so
long as no Default or Event of Default shall have occurred and shall
not have been waived pursuant to Section 11.6 of the Credit Agreement,
in cash equivalents.
(ii) The Agent is hereby authorized to sell, and shall sell,
all or any designated part of the Collateral (A) so long as no Default
or Event of Default shall have occurred and shall not have been waived
pursuant to Section 11.6 of the Credit Agreement, upon the receipt of
appropriate written instructions from an Authorized Representative or
(B) in any event if such sale is necessary to permit the Agent to
perform its duties hereunder or under the Credit Agreement. The Agent
shall have no responsibility for any loss in the value of the
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Collateral resulting from a fluctuation in interest rates or otherwise.
Any interest on securities constituting part of the Collateral and the
net proceeds of the sale or payment of any such securities shall be
held in the LC Account by the Agent.
Section 6. Representations and Warranties. In addition to its
representations and warranties made pursuant to Article VI of the Credit
Agreement, the Pledgor represents and warrants to the Agent (for itself and as
agent on behalf of the Lenders), that the following statements are true, correct
and complete:
(i) The Pledgor will be the legal and beneficial owner of the
Collateral free and clear of any Lien except for the lien and security
interest created by this Agreement and the Credit Agreement;
(ii) The pledge and assignment of the Collateral pursuant to
this Agreement creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the Secured
Obligations.
Section 7. Further Assurances. The Pledgor agrees that at any time and
from time to time, at the Pledgor's expense, the Pledgor will promptly execute
and deliver to the Agent any further instruments and documents, and take any
further actions, that may be necessary or that the Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
Section 8. Transfers and Other Liens. The Pledgor agrees that it will
not (a) sell or otherwise dispose of any of the Collateral, or (b) create or
permit to exist any Lien upon or with respect to any of the Collateral, except
for the lien and security interest created by this Agreement.
Section 9. The Agent Appointed Attorney-in Fact. The Pledgor hereby
appoints the Agent as its attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in the Agent's reasonable discretion to take any action and to execute any
instrument which the Agent may reasonably deem necessary or advisable to
accomplish the purposes of the Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor or
either of them representing any payment, dividend, or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the
same. In performing its functions and duties under this Agreement, the Agent
shall act solely for itself and as the agent of the Lenders and the Agent has
not assumed nor shall be deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Pledgor.
Section 10. The Agent May Perform. If the Pledgor fails to perform any
agreement contained herein, after notice to the Pledgor, the Agent may itself
perform, or cause performance of, such agreement, and the expenses of the Agent
incurred in connection therewith shall be payable by the Pledgor under Section
13 hereof.
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Section 11. Standard of Care; No Responsibility For Certain Matters. In
dealing with the Collateral in its possession, the Agent shall exercise the same
care which it would exercise in dealing with its own property of a similar
nature, but it shall not be responsible for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not the Agent has or is deemed to
have knowledge of such matters, (b) taking any steps to preserve rights against
any parties with respect to any Collateral (other than steps taken in accordance
with the standard of care set forth above to maintain possession of the
Collateral), (c) the collection of any proceeds, (d) any loss resulting from
Investments made pursuant to Section 5 hereof, or (e) determining (x) the
correctness of any statement or calculation made by the Pledgor in any written
or telex (tested or otherwise) instructions, or (y) whether any deposit in the
LC Account is proper.
Section 12. Remedies upon Default; Application of Proceeds. If any
Event of Default shall have occurred and shall not have been waived pursuant to
Section 11.6 of the Credit Agreement:
(i) The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein otherwise
available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "Code") as in effect in
the State of North Carolina at that time, and the Agent may, without
notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any
exchange or broker's board or at any of the Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such
price or prices, and upon such other terms as the Agent may reasonably
deem commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten (10) days' notice
to Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(ii) Subject to the provisions of Section 2(ii) hereof, any
cash held by the Agent as Collateral and all cash proceeds received by
the Agent in respect of any sale of, collection from, or other
realization upon all or part of the Collateral shall be applied (after
payment of any amounts payable to the Agent pursuant to Section 13
hereof) by the Agent to pay the Secured Obligations pursuant to Article
IX of the Credit Agreement. Any surplus of such cash or cash proceeds
held by the Agent and remaining after payment in full of all Secured
Obligations shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
Section 13. Expenses. In addition to any payments of expenses of Agent
pursuant to the Credit Agreement or the other Loan Documents, the Pledgor agrees
to pay promptly to the Agent all the costs and expenses, including reasonable
attorneys fees and expenses, which the Agent may reasonably incur in connection
with (a) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise or enforcement
of any of the rights
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of the Agent hereunder, or (c) the failure by the Pledgor to perform or observe
any of the provisions hereof.
Section 14. No Delays; Waiver, etc. No delay or failure on the part of
the Agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Section 15. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, or consent to any departure by the
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Agent.
Section 16. Notices. Except as otherwise specifically provided herein,
all notices which are to be sent to the Pledgor or Agent shall be given in
accordance with the Credit Agreement.
Section 17. Continuing Security Interest; Termination. This Agreement
shall create a continuing security interest in the Collateral and shall (a)
remain in full force and effect until all Secured Obligations (other than
Secured Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) shall have been indefeasibly
paid in full in cash, the commitments or other obligations of the Agent or any
Lender to make any Loan under the Credit Agreement shall have expired and the
Letters of Credit shall have expired, (b) be binding upon Pledgor, its
successors and assigns, and (c) inure to the benefit of the Agent, the Lenders
and their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c) and subject to the provisions of the
Credit Agreement, any Lender may assign or otherwise transfer any Note held by
it to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise. Upon the indefeasible payment in full in cash of the
Secured Obligations (other than Secured Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable) and
the cancellation or expiration of the Letters of Credit and termination or
expiration of all commitments and other obligations of the Agent and any Lender
to make any Loan, Pledgor shall be entitled, subject to the provisions of
Section 12 hereof, to the return, upon its request and at its expense, of such
of the Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof.
Section 18. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
FLORIDA. UNLESS OTHERWISE DEFINED HEREIN OR IN THE
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CREDIT AGREEMENT, TERMS DEFINED IN ARTICLE 9 OF THE CODE ARE USED HEREIN AS
THEREIN DEFINED.
Section 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF FLORIDA AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PLEDGOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY AND
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT SUBJECT TO RIGHT OF
APPEAL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 20. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and agreements
by or on behalf of the Pledgor or by and on behalf of the Agent shall bind and
inure to the benefit of the successors and assigns of the Pledgor, the Agent and
the Lenders.
Section 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall for all purposes be deemed an
original, but all such counterparts shall together constitute but one and the
same Agreement. The Pledgor and the Agent hereby acknowledge receipt of a true,
correct, and complete counterpart of this Agreement.
Section 22. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 23. Headings. This section headings in this Agreement are
inserted for convenience of reference and shall not be considered a part of this
Agreement or used in its interpretation.
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IN WITNESS WHEREOF, The Pledgor and the Agent have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
WITNESS: WACKENHUT CORRECTIONS CORPORATION
By:
----------------------------- ---------------------------------
Name:
Title:
-----------------------------
WITNESS: NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By:
----------------------------- ---------------------------------
Name:
Title:
-----------------------------
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Schedule 6.4
Subsidiaries and Investments in Other Persons
S-1
148
Schedule 6.6
Indebtedness
S-2
149
Schedule 6.7
Liens
S-3
150
Schedule 6.10
Litigation
S-4
151
Schedule 7.5
Insurance
S-5