Exhibit 4-A(i)
Execution Copy
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REVOLVING CREDIT AGREEMENT
dated as of February 5, 2004
among
PRIORITY HEALTHCARE CORPORATION,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK,
as Administrative Agent
================================================================================
SUNTRUST CAPITAL MARKETS, INC.,
as Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION.........................................1
Section 1.1. Definitions................................................1
Section 1.2. Classifications of Loans and Borrowings...................18
Section 1.3. Accounting Terms and Determination........................18
Section 1.4. Terms Generally...........................................19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..............................19
Section 2.1. General Description of Facilities.........................19
Section 2.2. Revolving Loans...........................................19
Section 2.3. Procedure for Revolving Borrowings........................20
Section 2.4. Swingline Commitment......................................20
Section 2.5. Funding of Borrowings.....................................22
Section 2.6. Interest Elections........................................22
Section 2.7. Optional Reduction and Termination of Commitments.........23
Section 2.8. Repayment of Loans........................................24
Section 2.9. Evidence of Indebtedness..................................24
Section 2.10. Optional Prepayments......................................24
Section 2.11. Mandatory Prepayments.....................................25
Section 2.12. Interest on Loans.........................................25
Section 2.13. Fees......................................................26
Section 2.14. Computation of Interest and Fees..........................27
Section 2.15. Inability to Determine Interest Rates.....................27
Section 2.16. Illegality................................................28
Section 2.17. Increased Costs...........................................28
Section 2.18. Funding Indemnity.........................................29
Section 2.19. Taxes.....................................................29
Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs..................................................31
Section 2.21. Letters of Credit.........................................32
Section 2.22. Increase of Commitments; Additional Lenders...............37
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..............38
Section 3.1. Conditions To Effectiveness...............................38
Section 3.2. Each Credit Event.........................................40
Section 3.3. Delivery of Documents.....................................40
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................40
Section 4.1. Existence; Power..........................................41
Section 4.2. Organizational Power; Authorization.......................41
Section 4.3. Governmental Approvals; No Conflicts......................41
Section 4.4. Financial Statements......................................41
Section 4.5. Litigation and Environmental Matters......................42
Section 4.6. Compliance with Laws and Agreements.......................42
Section 4.7. Investment Company Act, Etc. .............................42
Section 4.8. Taxes.....................................................42
Section 4.9. Margin Regulations........................................42
Section 4.10. ERISA.....................................................43
Section 4.11. Ownership of Property.....................................43
Section 4.12. Disclosure................................................43
Section 4.13. Labor Relations...........................................44
Section 4.14. Subsidiaries..............................................44
Section 4.15. Insolvency................................................44
ARTICLE V AFFIRMATIVE COVENANTS............................................44
Section 5.1. Financial Statements and Other Information................44
Section 5.2. Notices of Material Events................................45
Section 5.3. Existence; Conduct of Business............................46
Section 5.4. Compliance with Laws, Etc. ...............................46
Section 5.5. Payment of Obligations....................................46
Section 5.6. Books and Records.........................................46
Section 5.7. Visitation, Inspection, Etc. .............................47
Section 5.8. Maintenance of Properties; Insurance......................47
Section 5.9. Use of Proceeds and Letters of Credit.....................47
Section 5.10. Additional Subsidiaries...................................47
ARTICLE VI FINANCIAL COVENANTS..............................................48
Section 6.1. Leverage Ratio............................................48
Section 6.2. Interest Coverage Ratio...................................48
Section 6.3. Consolidated Net Worth....................................48
ARTICLE VII NEGATIVE COVENANTS...............................................48
Section 7.1. Indebtedness and Preferred Equity.........................48
Section 7.2. Negative Pledge...........................................49
Section 7.3. Fundamental Changes.......................................50
Section 7.4. Investments, Loans, Etc...................................51
Section 7.5. Restricted Payments.......................................51
Section 7.6. Sale of Assets............................................52
Section 7.7. Transactions with Affiliates..............................52
Section 7.8. Restrictive Agreements....................................52
Section 7.9. Sale and Leaseback Transactions...........................53
Section 7.10. Hedging Transactions......................................53
Section 7.11. Amendment to Material Documents...........................53
Section 7.12. Accounting Changes........................................53
ARTICLE VIII EVENTS OF DEFAULT................................................53
Section 8.1. Events of Default.........................................53
ARTICLE IX THE ADMINISTRATIVE AGENT.........................................56
Section 9.1. Appointment of Administrative Agent.......................56
Section 9.2. Nature of Duties of Administrative Agent..................56
Section 9.3. Lack of Reliance on the Administrative Agent..............57
ii
Section 9.4. Certain Rights of the Administrative Agent................57
Section 9.5. Reliance by Administrative Agent..........................57
Section 9.6. The Administrative Agent in its Individual Capacity.......58
Section 9.7. Successor Administrative Agent............................58
Section 9.8. Authorization to Execute other Loan Documents.............59
ARTICLE X MISCELLANEOUS....................................................59
Section 10.1. Notices...................................................59
Section 10.2. Waiver; Amendments........................................61
Section 10.3. Expenses; Indemnification.................................62
Section 10.4. Successors and Assigns....................................63
Section 10.5. Governing Law; Jurisdiction; Consent to Service of
Process...................................................65
Section 10.6. WAIVER OF JURY TRIAL......................................66
Section 10.7. Right of Setoff...........................................66
Section 10.8. Counterparts; Integration.................................67
Section 10.9. Survival..................................................67
Section 10.10. Severability..............................................67
Section 10.11. Confidentiality...........................................67
Section 10.12. Interest Rate Limitation..................................68
Section 10.13. Waiver of Effect of Corporate Seal........................68
Schedules
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Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
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Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Subsidiary Guaranty Agreement
Exhibit D - Form of Swingline Note
Exhibit E - Form of Lender Joinder Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.6 - Form of Continuation/Conversion
Exhibit 5.1(c) - Form of Compliance Certificate
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REVOLVING CREDIT AGREEMENT
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THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of February 5, 2004, by and among PRIORITY HEALTHCARE CORPORATION, an
Indiana corporation (the "Borrower"), the several banks and other financial
institutions and lenders from time to time party hereto (the "Lenders"), and
SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the
"Administrative Agent"), as issuing bank (the "Issuing Bank") and as swingline
lender (the "Swingline Lender").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders establish a
revolving credit facility in favor of the Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the Issuing Bank and the Swingline Lender, to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
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Section 1.1. Definitions. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Additional Lender" shall have the meaning given to such term in
Section 2.22.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition, "Control" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to
exercise voting power, by control or otherwise. The terms "Controlling",
"Controlled by", and "under common Control with" have the meanings correlative
thereto.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $40,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to
interest on all Revolving Loans outstanding on any date or the letter of credit
fee, as the case may be, a percentage per annum determined by reference to the
applicable Leverage Ratio from time to time in effect as set forth on Schedule
I; provided, that a change in the Applicable Margin resulting from a change in
the Leverage Ratio shall be effective on the second Business Day after which the
Borrower delivers the financial statements required by Section 5.1(a) or (b) and
the Compliance Certificate required by Section 5.1(c); provided further, that if
at any time the Borrower shall have failed to deliver such financial statements
and such Compliance Certificate when so required, the Applicable Margin shall be
at Level V as set forth on Schedule I until such time as such financial
statements and Compliance Certificate are delivered, at which time the
Applicable Margin shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Margin from the Closing Date until the financial
statements and Compliance Certificate for the Fiscal Quarter ending June 30,
2004 are required to be delivered shall be at Level II as set forth on
Schedule I.
"Applicable Percentage" shall mean, as of any date, with respect to
the facility fee as of any date, the percentage per annum determined by
reference to the applicable Leverage Ratio in effect on such date as set forth
on Schedule I; provided, that a change in the Applicable Percentage resulting
from a change in the Leverage Ratio shall be effective on the second Business
Day after which the Borrower delivers the financial statements required by
Section 5.1(a) or (b) and the Compliance Certificate required by Section 5.1(c);
provided further, that if at any time the Borrower shall have failed to deliver
such financial statements and such Compliance Certificate, the Applicable
Percentage shall be at Level V as set forth on Schedule I until such time as
such financial statements and Compliance Certificate are delivered, at which
time the Applicable Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Percentage for the facility fee
from the Closing Date until the financial statements and Compliance Certificate
for the Fiscal Quarter ending June 30, 2004 are required to be delivered shall
be at Level II as set forth on Schedule I.
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"Approved Fund" shall mean any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (i) a Lender, (ii)
an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit A attached hereto or any other form approved by
the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrowing" shall mean a borrowing consisting of (i) Revolving Loans
of the same Class and Type, made, converted or continued on the same date and in
the case of Eurodollar Loans, as to which a single Interest Period is in effect,
or (ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"Capital Expenditures" shall mean for any period, without duplication,
(i) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (ii) Capital Lease Obligations incurred by
the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"Capital Stock" shall mean any non-redeemable capital stock (or in the
case of a partnership or limited liability company, the partners' or members'
equivalent equity interest) of the Borrower or any of its Subsidiaries (to the
extent issued to a Person other than the Borrower), whether common or preferred.
"Change in Control" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (ii) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 35% or more of the outstanding shares of the voting stock of the
Borrower, or (iii) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (a)
nominated by the current board of directors nor (b) appointed by directors so
nominated.
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.17(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Compliance Certificate" shall mean a certificate from the principal
executive officer and the principal financial officer of the Borrower in the
form of, and containing the certifications set forth in, the certificate
attached hereto as Exhibit 5.1(c).
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest Expense, (B)
income tax expense determined on a consolidated basis in accordance with
4
GAAP, (C) depreciation and amortization determined on a consolidated basis in
accordance with GAAP, and (D) all other non-cash charges acceptable to the
Administrative Agent, determined on a consolidated basis in accordance with
GAAP, in each case for such period.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, total interest expense, including without limitation the interest
component of any payments in respect of Capital Lease Obligations capitalized or
expensed during such period (whether or not actually paid during such period).
"Consolidated Net Income" shall mean, for the Borrower and its
Subsidiaries for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary and
(iv) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are acquired by the Borrower or any
Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus (ii) the sum
of (x) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP (y) the amount of any write-up in the book value of any
assets resulting from a revaluation thereof or any write-up in excess of the
cost of such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP and (z) the net book
amount of all other assets of Borrower and its Subsidiaries that would be
classified as intangible assets on Borrower's consolidated balance sheet as of
such date prepared in accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date, all Indebtedness
of the Borrower and its Subsidiaries measured on a consolidated basis as of such
date, but excluding Indebtedness of the type described in subsection (xi) of the
definition thereto.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
5
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a natural
Person) approved by the Administrative Agent, the Issuing Bank and the Borrower
(each such approval not to be unreasonably withheld or delayed); provided that
the consent of the Borrower shall not be required if (x) such Person is taking
delivery of an assignment in connection with physical settlement of a credit
derivatives transaction or (y) an Event of Default has occurred and is
continuing. If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment thresholds specified in paragraph (b)(i) of
Section 10.4), the Borrower shall be deemed to have given its consent five
Business Days after the date notice thereof has actually been delivered by the
assigning Lender (through the Administrative Agent) to the Borrower, unless such
consent is expressly refused by the Borrower prior to such fifth Business Day.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (i) any actual or alleged
violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii)
any actual or alleged exposure to any Hazardous Materials, (iv) the Release or
threatened Release of any Hazardous Materials or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
6
to administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100/th/ of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Subsidiary" shall mean each of Pharmacy Plus, Inc., a
Florida corporation, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Florida corporation, First
RX, Inc., a Florida corporation, and other immaterial Subsidiaries of the
Borrower acquired or formed after the date hereof; provided, however, at no time
shall the fair market value of all assets of all Excluded Subsidiaries exceed
$100,000 in the aggregate.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (i) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (ii) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (iii) in the case
of a Foreign Lender, any withholding tax that (x) is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (y) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (z) is attributable to such Foreign Lender's failure to
comply with Section 2.19(e).
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"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100/th/ of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of February
5, 2004, executed by SunTrust Capital Markets, Inc. and accepted by Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized under
the laws of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof
8
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith. The term "Guarantee" used as a verb has a corresponding
meaning.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.
"Hedging Transaction" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate transaction,
commodity swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The Indebtedness
of any Person shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
9
"Information Memorandum" shall mean the Confidential Information
Memorandum dated January 2004 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"Interest Coverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated EBITDA less the actual amount paid by the Borrower and its
Subsidiaries in cash on account of income taxes, for the four consecutive Fiscal
Quarters ending on or immediately prior to such date to (ii) Consolidated
Interest Expense for the four consecutive Fiscal Quarters ending on or
immediately prior to such date.
"Interest Period" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding Business
Day;
(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 such calendar month;
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.21.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $10,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a drawing under a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
10
"Lender Joinder" shall have the meaning set forth in Section 2.22.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and each Additional Lender that joins this Agreement pursuant to Section
2.22.
"Letter of Credit" shall mean any stand-by letter of credit issued
pursuant to Section 2.21 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated Total Debt as of such date to (ii) Consolidated EBITDA for the four
consecutive Fiscal Quarters ending on or immediately prior to such date.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow ▇▇▇▇▇ Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100/th/ of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes
(if any), the LC Documents, the Subsidiary Guaranty Agreement, all Notices of
Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates
and any and all other instruments, agreements, documents and writings executed
in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
11
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower or of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties taken as a whole to perform their obligations under
the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, and the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan
Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) and Hedging Obligations, of any one or all of the Loan
Parties and their Subsidiaries, individually or in an aggregate principal amount
exceeding $5,000,000. For purposes of determining the amount of attributed
Indebtedness from Hedging Obligations, the "principal amount" of any Hedging
Obligations at any time shall be the Net ▇▇▇▇-to-Market Exposure of such Hedging
Obligations.
"Material Subsidiary" shall mean all Subsidiaries of the Borrower
except Excluded Subsidiaries.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net ▇▇▇▇-to-Market Exposure" of any Person shall mean, as of any date
of determination with respect to any Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized profits of such Person arising from
such Hedging Obligation. "Unrealized losses" shall mean the fair market value of
the cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction were to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.9(b).
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
12
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.4.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and
any Lender (including the Swingline Lender) incurred pursuant to this Agreement
or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all Hedging Obligations owing to the Administrative Agent, any
Lender or any of their Affiliates relating to Indebtedness incurred under this
Agreement, and all obligations and liabilities incurred in connection with
collecting and enforcing the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(d).
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Permitted Acquisition" shall mean an acquisition of a majority or
more of the capital stock (including more than 50% of the ordinary voting
power), all or substantially all of the assets, or a line of business of another
Person (an "Acquisition"); provided that (i) after giving effect to such
Acquisition, no Default or Event of Default will have occurred and be
13
continuing, (ii) the Borrower would be in compliance with the covenants set
forth in Article VI as of the last day of the most recently ended Fiscal
Quarter, after giving effect to such Acquisition on a pro forma basis as if such
Acquisition had occurred on the first day of any period tested in the covenants
set forth in Article VI, (iii) the board of directors of the Person being
acquired (or having its assets acquired) has approved the Acquisition, (iv) the
assets or property being acquired belong to the same line of business as the
Borrower and its Subsidiaries taken as a whole or any business reasonably
related thereto, (v) the purchase price (in cash, stock or other property) paid
by the Borrower or any Subsidiary in any one Acquisition does not exceed
$50,000,000, (vi) the aggregate purchase price (in cash, stock or other
property) paid by the Borrower and its Subsidiaries in all Acquisitions
completed during the term of this Agreement does not exceed $150,000,000 and
(vii) the Borrower has delivered to the Agent a certificate certifying that each
of the conditions set forth herein have been satisfied and demonstrating
compliance with the covenants set forth in Article VI after giving pro forma
effect to such Acquisition.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen and similar Liens arising by operation of law in the ordinary
course of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
14
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) corporate bonds having a rating of AA/Aa or better, at the time
of acquisition thereof, by S&P or Moody's and in either case maturing
within one year from the date of acquisition thereof;
(vi) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (v) above.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, the Revolving Credit Exposure of all
Lenders).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
15
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding more than 50% of
the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on Annex
I, as such annex may be amended pursuant to Section 2.22, or in the case of a
Person becoming a Lender after the Closing Date through an assignment of an
existing Revolving Commitment, the amount of the assigned "Revolving Commitment"
as provided in the Assignment and Acceptance executed by such Person as an
assignee, as the same may be increased or deceased pursuant to terms hereof.
"Revolving Commitment Termination Date" shall mean the earliest of (i)
February 5, 2007, (ii) the date on which the Revolving Commitments are
terminated pursuant to Section 2.10 and (iii) the date on which all amounts
outstanding under this Agreement have been declared or have automatically become
due and payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline Exposure.
16
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit B.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the ▇▇▇▇▇▇-▇▇▇▇
Companies.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to "Subsidiary" hereunder
shall mean a Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof and substantially in the form of Exhibit
C, made by the Subsidiary Loan Parties in favor of the Administrative Agent for
the benefit of the Lenders.
"Subsidiary Guaranty Supplement" shall mean each supplement
substantially in the form of Annex I to the Subsidiary Guaranty Agreement
executed and delivered by a Subsidiary of the Borrower pursuant to Section 5.10.
"Subsidiary Loan Party" shall mean each Subsidiary that guarantees the
Obligations.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $10,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.4, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank, or any other Lender that
may agree to make Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
17
"Swingline Note" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit D.
"Swingline Rate" shall mean the rate as offered by the Swingline
Lender and accepted by the Borrower. The Borrower is under no obligation to
accept this rate and the Swingline Lender is under no obligation to provide it.
"Synthetic Lease" shall mean a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving Eurodollar
Borrowing").
Section 1.3. Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is
18
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
Section 1.4. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1. General Description of Facilities. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in accordance with Section 2.21, (iii)
the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving Commitment Amount from time to time in
effect.
Section 2.2. Revolving Loans. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans, ratably
in proportion to its Pro Rata Share, to the Borrower, from time to time during
the Availability Period, in an aggregate principal amount outstanding at any
time that will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Commitment or (b) the sum of the aggregate
Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving
Commitment Amount. During the Availability Period, the Borrower shall be
entitled to borrow,
19
prepay and reborrow Revolving Loans in accordance with the terms and conditions
of this Agreement; provided, that the Borrower may not borrow or reborrow should
there exist a Default or Event of Default.
Section 2.3. Procedure for Revolving Borrowings. The Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x) prior to
11:00 a.m. (Atlanta, Georgia time) one (1) Business Day prior to the requested
date of each Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia
time) three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of
such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving
Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing,
the duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000; provided, that Base Rate Loans made pursuant
to Section 2.4 or Section 2.21(d) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed four. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender's Revolving Loan to
be made as part of the requested Revolving Borrowing.
Section 2.4. Swingline Commitment.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the sum of the aggregate outstanding principal amount of
all Revolving Loans and the LC Exposure of all Lenders; provided, that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with the terms and conditions of this
Agreement.
(b) The Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4 attached hereto ("Notice of Swingline
Borrowing") prior to 10:00 a.m. (Atlanta, Georgia time) on the requested date of
each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrower to which the proceeds of such Swingline Loan should
be credited. The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest
at the Base Rate or any other interest rate as agreed between the Borrower and
the Swingline Lender and shall have a maturity
20
(which shall not exceed a period of 30 days and may not extend beyond the
Revolving Commitment Termination Date) as agreed between the Borrower and the
Swingline Lender. The aggregate principal amount of each Swingline Loan shall be
not less than $100,000 or a larger multiple of $50,000, or such other minimum
amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender
will make the proceeds of each Swingline Loan available to the Borrower in
Dollars in immediately available funds at the account specified by the Borrower
in the applicable Notice of Swingline Borrowing not later than 1:00 p.m.
(Atlanta, Georgia time) on the requested date of such Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.4, which will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(e) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.4(b) or to purchase the participating interests pursuant to Section
2.4(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on
21
its Loans and any other amounts due to it hereunder, to the Swingline Lender to
fund the amount of such Lender's participation interest in such Swingline Loans
that such Lender failed to fund pursuant to this Section, until such amount has
been purchased in full.
Section 2.5. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds by 11:00 a.m. (Atlanta, Georgia time) to the Administrative Agent at the
Payment Office; provided, that the Swingline Loans will be made as set forth in
Section 2.4. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts that it receives, in like funds by
the close of business on such proposed date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower's option, by effecting
a wire transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. (Atlanta, Georgia time) one (1) Business Day prior to
the date of a Borrowing in which such Lender is to participate that such Lender
will not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date, and the
Administrative Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate until the second Business Day after such demand and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent together
with interest at the rate specified for such Borrowing. Nothing in this
subsection shall be deemed to relieve any Lender from its obligation to fund its
Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares. No Lender shall be responsible for
any default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.6. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected
22
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding Loans comprising such Borrowing, and the Loans comprising each
such portion shall be considered a separate Borrowing. This Section shall NOT
apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.6 attached hereto (a "Notice of Conversion/Continuation") that is to
be converted or continued, as the case may be, (x) prior to 10:00 a.m. (Atlanta,
Georgia time) one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia time)
three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with
respect to different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.7. Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
(including the LC Commitments) shall terminate on the Revolving Commitment
Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be
23
irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in
part or terminate the Aggregate Revolving Commitments in whole; provided, that
(i) any partial reduction shall apply to reduce proportionately and permanently
the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to
this Section shall be in an amount of at least $5,000,000 and any larger
multiple of $1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Aggregate Revolving Commitment Amount to an amount less than
the outstanding Revolving Credit Exposures of all Lenders. Any such reduction in
the Aggregate Revolving Commitment Amount below the sum of the principal amount
of the Swingline Commitment and the LC Commitment shall result in a
proportionate reduction (rounded to the next lowest integral multiple of
$100,000) in the Swingline Commitment and the LC Commitment.
Section 2.8. Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Borrowing and (ii) the Revolving
Commitment Termination Date.
Section 2.9. Evidence of Indebtedness. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.6, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.6, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender only, a Swingline
Note, payable to the order of such Lender.
Section 2.10. Optional Prepayments. The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or
24
penalty, by giving irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent no later than (i) in the case
of prepayment of any Eurodollar Borrowing, 11:00 a.m. (Atlanta, Georgia time)
not less than three (3) Business Days prior to any such prepayment, (ii) in the
case of any prepayment of any Base Rate Borrowing, not less than one Business
Day prior to the date of such prepayment, and (iii) in the case of Swingline
Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each such notice
shall be irrevocable and shall specify the proposed date of such prepayment and
the principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.12(d); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
2.18. Each partial prepayment of any Loan (other than a Swingline Loan) shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to Section 2.2 or in the case of a Swingline
Loan pursuant to Section 2.4. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
Section 2.11. Mandatory Prepayments. If at any time the aggregate
outstanding principal amount of Revolving Loans exceeds the Revolving
Commitment, the Borrower shall immediately repay the Revolving Loans in an
amount equal to such excess, together with all accrued and unpaid interest on
such excess amount and any amounts due under Section 2.18.
Section 2.12. Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the
Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at the Base Rate plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date.
25
Interest on all outstanding Eurodollar Loans shall be payable on the last day of
each Interest Period applicable thereto, and, in the case of any Eurodollar
Loans having an Interest Period in excess of three months or 90 days,
respectively, on each day which occurs every three months or 90 days, as the
case may be, after the initial date of such Interest Period, and on the
Revolving Commitment Termination Date. Interest on each Swingline Loan shall be
payable on the maturity date of such Loan, which shall be the last day of the
Interest Period applicable thereto, and on the Revolving Commitment Termination
Date. Interest on any Loan which is converted into a Loan of another Type or
which is repaid or prepaid shall be payable on the date of such conversion or on
the date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.13. Fees.
(a) The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times previously agreed upon in writing
by the Borrower and the Administrative Agent.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable
Percentage per annum (determined daily in accordance with Schedule I) on the
daily amount of the Revolving Commitment (whether used or unused) of such Lender
during the Availability Period; provided, that if such Lender continues to have
any Revolving Credit Exposure after the Revolving Commitment Termination Date,
then the facility fee shall continue to accrue on the daily amount of such
Revolving Credit Exposure from and after the Revolving Commitment Termination
Date to the date that all of such Lender's Revolving Credit Exposure has been
paid in full.
(c) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of credit fee with respect to its
participation in each Letter of Credit, which shall accrue at a rate per annum
equal to the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter of Credit expires or is
drawn in full (including without limitation any LC Exposure that remains
outstanding after the Revolving Commitment Termination Date) and (ii) to the
Issuing Bank for its own account a fronting fee, which shall accrue at the rate
of 0.125% per annum on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is irrevocably
cancelled, whichever is later), as well as the Issuing Bank's standard fees with
respect to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the foregoing, if the
Required Lenders elect to increase the interest rate on the Loans to the Default
Interest pursuant to Section 2.12(c), the rate per annum used to calculate the
26
letter of credit fee pursuant to clause (i) above shall automatically be
increased by an additional 2% per annum.
(d) The Borrower shall pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront fee previously agreed upon by the
Borrower and the Administrative Agent, which shall be due and payable on the
Closing Date.
(e) Accrued fees (other than the upfront fee referenced in paragraph
(d)) shall be payable quarterly in arrears on the last day of each March, June,
September and December, commencing on March 31, 2004 and on the Revolving
Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety); provided further, that any such fees
accruing after the Revolving Commitment Termination Date shall be payable on
demand.
Section 2.14. Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
Section 2.15. Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. Until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or
to continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended and (ii) all such affected Loans shall be converted into Base Rate
Loans on the last day of the then current Interest Period applicable thereto
unless the Borrower prepays such Loans in accordance with this Agreement. Unless
the Borrower notifies the Administrative Agent at least one Business Day before
the date of any Eurodollar Revolving Borrowing for which a Notice of Revolving
Borrowing has previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate Borrowing.
27
Section 2.16. Illegality. If any Change in Law shall make it unlawful
or impossible for any Lender to make, maintain or fund any Eurodollar Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case
of the making of a Eurodollar Borrowing, such Lender's Revolving Loan shall be
made as a Base Rate Loan as part of the same Revolving Borrowing for the same
Interest Period and if the affected Eurodollar Loan is then outstanding, such
Loan shall be converted to a Base Rate Loan either (i) on the last day of the
then current Interest Period applicable to such Eurodollar Loan if such Lender
may lawfully continue to maintain such Loan to such date or (ii) immediately if
such Lender shall determine that it may not lawfully continue to maintain such
Eurodollar Loan to such date. Notwithstanding the foregoing, the affected Lender
shall, prior to giving such notice to the Administrative Agent, designate a
different Applicable Lending Office if such designation would avoid the need for
giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.
Section 2.17. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of
the Adjusted LIBO Rate hereunder against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any
Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein; and the result of either of the foregoing is to
increase the cost to such Lender of making, converting into, continuing or
maintaining a Eurodollar Loan or to increase the cost to such Lender or the
Issuing Bank of participating in or issuing any Letter of Credit or to
reduce the amount received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount), then the
Borrower shall promptly pay, upon written notice from and demand by such
Lender on the Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on
or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which
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such Lender or the Issuing Bank or such Lender's or the Issuing Bank's parent
corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation.
Section 2.18. Funding Indemnity. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.
Section 2.19. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that
29
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any Lender
or the Issuing Bank (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign 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 (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan
30
agreement entered into in the ordinary course of its trade or business, within
the meaning of that section; (2) the Foreign Lender is not a 10% shareholder of
the Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and
(3) the Foreign Lender is not a controlled foreign corporation that is related
to the Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such
other Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.17, 2.18 or 2.19, or
otherwise) prior to 12:00 noon (Atlanta, Georgia time) on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of any Taxes. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.17, 2.18 or 2.19 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and
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participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements and Swingline Loans;
provided, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements or Swingline Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.4(c) or (d), 2.5(b), 2.20(d), 2.21(d) or (e), or
10.3(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
Section 2.21. Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in reliance
upon the agreements of the other Lenders pursuant to Section 2.21(d), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; provided, that (i)
each Letter of Credit shall expire on the earlier of (A) the
32
date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $100,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate Revolving Credit
Exposure of all Lenders would exceed the Aggregate Revolving Commitment Amount.
Upon the issuance of each Letter of Credit each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank
without recourse a participation in such Letter of Credit equal to such Lender's
Pro Rata Share of the aggregate amount available to be drawn under such Letter
of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an amount equal to the amount of such
participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In addition
to the satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be subject to the further conditions that such Letter of Credit
shall be in such form and contain such terms as the Issuing Bank shall approve
and that the Borrower shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit as
the Issuing Bank shall reasonably require; provided, that in the event of any
conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.21(a) or that one or
more conditions specified in Article III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The
33
Borrower shall be irrevocably and unconditionally obligated to reimburse the
Issuing Bank for any LC Disbursements paid by the Issuing Bank in respect of
such drawing, without presentment, demand or other formalities of any kind.
Unless the Borrower shall have notified the Issuing Bank and the Administrative
Agent prior to 11:00 a.m. (Atlanta, Georgia time) on the Business Day
immediately prior to the date on which such drawing is honored that the Borrower
intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided, that
for purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.6. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section on the due date
therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3)
34
Business Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid fees thereon; provided, that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (g) or (h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this paragraph. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement and the other Loan Documents. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(h) Promptly following the end of each Fiscal Quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrower a report describing the aggregate Letters of Credit outstanding at the
end of such Fiscal Quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit
or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may have
at any time against a
35
beneficiary or any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be acting), any
Lender (including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right
of setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's gross negligence
or willful misconduct (as finally determined by a court of competent
jurisdiction) when determining whether drafts or other documents presented under
a Letter of Credit comply with the terms thereof. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time, and,
to the extent not inconsistent therewith, the governing law of this Agreement
set forth in Section 10.5.
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Section 2.22. Increase of Commitments; Additional Lenders.
(a) So long as no Event of Default has occurred and is continuing,
from time to time after the Closing Date, Borrower may, upon at least 30 days'
written notice to the Administrative Agent (who shall promptly provide a copy of
such notice to each Lender), who shall promptly notify the Lenders, propose to
increase the Aggregate Revolving Commitment Amount up to an amount not to exceed
$150,000,000 (the amount of any such increase, the "Additional Commitment
Amount"). Each Lender shall have the right for a period of 15 days following
receipt of such notice, to elect by written notice to the Borrower and the
Administrative Agent to increase its Revolving Commitment by a principal amount
equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or
any successor thereto) shall have any obligation to increase its Revolving
Commitment or its other obligations under this Agreement and the other Loan
Documents, and any decision by a Lender to increase its Revolving Commitment
shall be made in its sole discretion independently from any other Lender.
(b) If any Lender shall not elect to increase its Revolving
Commitment pursuant to subsection (a) of this Section, the Borrower may
designate another bank or other financial institution (which may be, but need
not be, one or more of the existing Lenders) which at the time agrees to, in the
case of any such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an "Additional Lender"),
become a party to this Agreement; provided, however, that any new bank or
financial institution must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld or delayed. The sum of the
increases in the Revolving Commitments of the existing Lenders pursuant to this
subsection (b) plus the Revolving Commitments of the Additional Lenders shall
not in the aggregate exceed the unsubscribed amount of the Additional Commitment
Amount.
(c) An increase in the aggregate amount of the Revolving Commitments
pursuant to this Section shall become effective upon the receipt by the
Administrative Agent of a lender joinder agreement in the form of Exhibit E (the
"Lender Joinder") signed by the Borrower, by each Additional Lender and by each
other Lender whose Revolving Commitment is to be increased, setting forth the
new Revolving Commitments of such Lenders and setting forth the agreement of
each Additional Lender to become a party to this Agreement and to be bound by
all the terms and provisions hereof, together with such evidence of appropriate
corporate authorization on the part of the Borrower with respect to the increase
in the Revolving Commitments and such opinions of counsel for the Borrower with
respect to the increase in the Revolving Commitments as the Administrative Agent
may reasonably request.
(d) Upon the acceptance of any such agreement by the Administrative
Agent, the Aggregate Revolving Commitment Amount shall automatically be
increased by the amount of the Revolving Commitments added through such
agreement and Annex I shall automatically be deemed amended to reflect the
Revolving Commitments of all Lenders after giving effect to the addition of such
Revolving Commitments.
(e) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section that is not pro rata among all Lenders, (x)
within five
37
Business Days, in the case of any Base Rate Loans then outstanding, and at the
end of the then current Interest Period with respect thereto, in the case of any
Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their
entirety and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article III, the Borrower shall reborrow Loans from the
Lenders in proportion to their respective Revolving Commitments after giving
effect to such increase, until such time as all outstanding Loans are held by
the Lenders in such proportion and (y) effective upon such increase, the amount
of the participations held by each Lender in each Letter of Credit then
outstanding shall be adjusted such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of Credit
in the proportion its respective Revolving Commitment bears to the aggregate
Revolving Commitments after giving effect to such increase.
(f) Notwithstanding the foregoing, the Borrower may designate new
banks or other financial institutions to provide Additional Commitments
hereunder during the first 60 days after the Closing Date by providing no more
than three Business Days' written notice to the Administrative Agent (or such
shorter period as the Administrative Agent shall agree) and without first
offering such Additional Commitments to existing Lenders pursuant to clause (a)
above, so long as the other conditions to increasing the aggregate Revolving
Commitments are met.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
---------------------------------------------------
Section 3.1. Conditions To Effectiveness. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Revolving Credit Notes payable to such Lender and
the Swingline Note payable to the Swingline Lender;
38
(iii) the Subsidiary Guaranty Agreement duly executed by each
Material Subsidiary;
(iv) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its boards of directors, or partnership agreement or limited
liability company agreement, or comparable organizational documents and
authorizations, authorizing the execution, delivery and performance of the
Loan Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(v) certified copies of the articles or certificate of
incorporation, certificate of organization or limited partnership, or other
registered organizational documents of each Loan Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of organization of such Loan Party
and each other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation;
(vi) a favorable written opinion of counsel to the Loan Parties
(which may be in-house counsel of the Borrower acceptable to the
Administrative Agent), addressed to the Administrative Agent and each of
the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;
(vii) a certificate, dated the Closing Date and signed by a
Responsible Officer, certifying that (x) no Default or Event of Default
exists, (y) all representations and warranties of each Loan Party set forth
in the Loan Documents are true and correct and (z) since the date of the
financial statements of the Borrower described in Section 4.4, there shall
have been no change which has had or could reasonably be expected to have a
Material Adverse Effect;
(viii) a duly executed Notice of Borrowing;
(ix) a duly executed funds disbursement agreement;
(x) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired and no
investigation or inquiry by any governmental authority regarding the Credit
Facility or any transaction being financed with the proceeds thereof shall
be ongoing;
(xi) copies of (A) the internally prepared quarterly financial
statements of Borrower and its subsidiaries on a consolidated basis for the
Fiscal Quarter ending on September 27, 2003, and (B) the audited
consolidated financial statements for Borrower
39
and its subsidiaries for the Fiscal Years ending December 30, 2000,
December 29, 2001 and December 28, 2002; and
(xii) certificates of insurance issued on behalf of insurers of the
Borrower and all guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower
and all guarantors, naming Agent as additional insured.
Section 3.2. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist;
(b) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of
Borrowing; and
(e) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
Section 3.3. Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
40
Section 4.1. Existence; Power. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification
is required, except where a failure to be so qualified could not reasonably be
expected to result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action. This Agreement has been duly executed and delivered
by the Borrower, and constitutes, and each other Loan Document to which any Loan
Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrower or such Loan Party (as
the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect, (b) will not violate any Requirements of Law applicable
to the Borrower or any of its Subsidiaries or any judgment, order or ruling of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
Section 4.4. Financial Statements. The Borrower has furnished to
each Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 28, 2002 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
prepared by PricewaterhouseCoopers LLP and (ii) the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of September 27, 2003, and
the related unaudited consolidated statements of income and cash flows for the
Fiscal Quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since
December 28, 2002, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect.
41
Section 4.5. Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other Loan
Document.
(b) Except for the matters set forth on Schedule 4.5, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply in any material
respect with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any material Environmental Liability or (iv) knows of any
basis for any material Environmental Liability.
Section 4.6. Compliance with Laws and Agreements. The Borrower and
each Subsidiary is in compliance with (a) all Requirements of Law and all
judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Investment Company Act, Etc. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt or requiring any approval or consent
from or registration or filing with, any Governmental Authority in connection
therewith.
Section 4.8. Taxes. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary could become liable have
timely filed or caused to be filed all Federal income tax returns and all other
material tax returns that are required to be filed by them, and have paid all
taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except where the same
are currently being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as the case may be, has set aside on its
books adequate reserves in accordance with GAAP. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of such
taxes are adequate, and no tax liabilities that could be materially in excess of
the amount so provided are anticipated.
Section 4.9. Margin Regulations. None of the proceeds of any of the
Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulation U. Neither the Borrower
nor its
42
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
"margin stock."
Section 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
Section 4.11. Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all of its real and personal property material to
the operation of its business, including all such properties reflected in the
most recent audited consolidated balance sheet of the Borrower referred to in
Section 4.4 or purported to have been acquired by the Borrower or any Subsidiary
after said date (except as sold or otherwise disposed of in the ordinary course
of business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are material to the business or
operations of the Borrower and its Subsidiaries are valid and subsisting and are
in full force.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed,
or otherwise has the right, to use, all patents, trademarks, service marks,
trade names, copyrights and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe in any material respect on the rights of any other Person.
(c) The properties of the Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates.
Section 4.12. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the
43
circumstances under which they were made, not misleading; provided, that with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 4.13. Labor Relations. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Closing Date.
Section 4.15. Insolvency. After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
neither the Borrower nor its Subsidiaries will be "insolvent," within the
meaning of such term as defined in Section 101 of Title 11 of the United States
Code, as amended from time to time, or be unable to pay its debts generally as
such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
Section 5.1. Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year of Borrower, a copy of the annual audited report for
such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, all in reasonable
detail and reported on by PricewaterhouseCoopers LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its
44
Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in
accordance with GAAP and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the
end of each Fiscal Quarter of the Borrower, an unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter
and the related unaudited consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed
portion of such Fiscal Year, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Compliance Certificate signed by the
principal executive officer and the principal financial officer of the Borrower;
(d) concurrently with the delivery of the Fiscal Year financial
statements referred to in clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the knowledge
of the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any
45
Environmental Liability and in each of the preceding clauses, which individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000;
(e) the occurrence of any default or event of default, or the receipt
by Borrower or any of its Subsidiaries of any written notice of an alleged
default or event of default, respect of any Material Indebtedness of the
Borrower or any of its Subsidiaries; and
(f) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently conducted
or such other businesses that are reasonably related thereto; provided, that
nothing in this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.5. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
46
Section 5.7. Visitation, Inspection, Etc. The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower; provided, however, if an Event of
Default has occurred and is continuing, no prior notice shall be required.
Section 5.8. Maintenance of Properties; Insurance. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, (b) maintain with financially sound
and reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations, and (c) at all
times shall name Administrative Agent as additional insured on all liability
policies of the Borrower and its Subsidiaries.
Section 5.9. Use of Proceeds and Letters of Credit. The Borrower
will use the proceeds of all Loans to finance working capital needs,
acquisitions, capital expenditures and for other general corporate purposes of
the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that would violate any
rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes.
Section 5.10. Additional Subsidiaries. If any Material Subsidiary is
acquired or formed after the Closing Date, the Borrower will, within ten (10)
Business Days after any such Material Subsidiary is acquired or formed, notify
the Administrative Agent and the Lenders thereof and will cause such Material
Subsidiary to become a Subsidiary Loan Party by executing and delivering to the
Administrative Agent a Subsidiary Guaranty Supplement, accompanied by (i) all
other Loan Documents related thereto, (ii) certified copies of certificates or
articles of incorporation or organization, by-laws, membership operating
agreements, and other organizational documents, appropriate authorizing
resolutions of the board of directors of such Material Subsidiaries, and
opinions of counsel comparable to those delivered pursuant to Section 3.1, and
(iii) such other documents as the Administrative Agent may reasonably request.
No Subsidiary that becomes a Subsidiary Loan Party shall thereafter cease to be
a Subsidiary Loan Party or be entitled to be released or discharged from its
obligations under the Subsidiary Guaranty Agreement. For the avoidance of doubt,
if at any time the fair market value of all assets of all Excluded Subsidiaries
is greater than $100,000 in the aggregate, then the Borrower shall cause one or
more of the Excluded Subsidiaries to become a Subsidiary Loan Party as necessary
to reduce the fair market value of all assets of all Subsidiaries that are not
Subsidiary Loan Parties to be no more than $100,000 in the aggregate.
47
ARTICLE VI
FINANCIAL COVENANTS
-------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
Section 6.1. Leverage Ratio. The Borrower will maintain at all times
a Leverage Ratio of not greater than 2.50:1.00.
Section 6.2. Interest Coverage Ratio. The Borrower will have, as of
the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending
January 3, 2004, an Interest Coverage Ratio of not less than 5.00:1.00.
Section 6.3. Consolidated Net Worth. The Borrower will not permit
its Consolidated Net Worth at any time to be less than an amount equal to the
sum of (i) 85% of the Consolidated Net Worth as at September 27, 2003, plus (ii)
50% of Consolidated Net Income on a cumulative basis for all preceding Fiscal
Quarters, commencing with the Fiscal Quarter ending January 3, 2004; provided,
that if Consolidated Net Income is negative in any Fiscal Quarter the amount
added for such Fiscal Quarter shall be zero and such negative Consolidated Net
Income shall not reduce the amount of Consolidated Net Income added from any
previous Fiscal Quarter, plus (iii) 85% of the amount by which the Borrower's
"total stockholders' equity" is increased as a result of any public or private
offering of common stock of the Borrower after the Closing Date. Promptly upon
the consummation of such offering, the Borrower shall notify the Administrative
Agent in writing of the amount of such increase in "total stockholders' equity".
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains outstanding:
Section 7.1. Indebtedness and Preferred Equity. The Borrower will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on the
date hereof and set forth on Schedule 7.1 and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets
48
or secured by a Lien on any such assets prior to the acquisition thereof;
provided, that such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvements or
extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof; provided further, that the aggregate principal
amount of such Indebtedness does not exceed $15,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary and of any
Subsidiary owing to the Borrower or any other Subsidiary; provided, that any
such Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan
Party shall be subject to Section 7.4;
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
provided, that Guarantees by any Loan Party of Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the
date of this Agreement; provided, that such Indebtedness exists at the time that
such Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of such Indebtedness permitted hereunder shall not exceed
$15,000,000 outstanding at any time;
(g) Indebtedness in respect of Hedging Obligations permitted by
Section 7.10; and
(h) other unsecured Indebtedness of the Borrower or its Subsidiaries
in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding.
Borrower will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may
become redeemable or repurchaseable by Borrower or such Subsidiary at the option
of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock or any other preferred equity interests described in this paragraph, on or
prior to, in the case of clause (i), (ii) or (iii), the first anniversary of the
Revolving Commitment Termination Date.
Section 7.2. Negative Pledge. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
49
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section; provided, that the principal amount
of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
Section 7.3. Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, or lease, transfer or otherwise
dispose of (in a single transaction or a series of transactions) all or
substantially all of its assets (in each case, whether now owned or hereafter
acquired) or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired) or liquidate or
dissolve; provided, that if at the time thereof and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person if the
Borrower (or such Subsidiary if the Borrower is not a party to such merger) is
the surviving Person, (ii) any Subsidiary may merge into another Subsidiary;
provided, that if any party to such merger is a Subsidiary Loan Party, the
Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to a Subsidiary Loan Party and (iv) any Subsidiary
(other than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
provided, that any such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
50
Section 7.4. Investments, Loans, Etc. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Subsidiary and by
any Subsidiary to the Borrower or in or to another Subsidiary; provided, that
the aggregate amount of Investments by Loan Parties in or to, and Guarantees by
Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan
Party (including all such Investments and Guarantees existing on the Closing
Date) shall not exceed $10,000,000 at any time outstanding;
(e) loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate amount of
all such loans and advances does not exceed $1,000,000 at any time;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions; and
(h) Other Investments which in the aggregate do not exceed
$10,000,000 in any Fiscal Year.
Section 7.5. Restricted Payments. The Borrower will not, and will
not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of
the Borrower or any Guarantee thereof or any options, warrants, or other rights
to purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends payable by
the Borrower solely in shares of any class of its common stock, (ii) Restricted
Payments made by any Subsidiary to the Borrower or to another Subsidiary Loan
Party, (iii) purchase or redemption of common stock of Borrower to the extent
such common stock is immediately retired and not held as treasury stock and (iv)
cash dividends and distributions paid on the common stock of the Borrower;
provided, for the purpose of clauses (iii) and (iv) above, that (x) no Default
or Event of Default has occurred and is continuing at the
51
time such dividend or distribution is paid or such purchase or redemption is
made, and (y) the aggregate amount of all such Restricted Payments made by the
Borrower in any Fiscal Year does not exceed 50% of Net Income (if greater than
$0) earned during the immediately preceding Fiscal Year.
Section 7.6. Sale of Assets. The Borrower will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's common stock to any Person other than the Borrower
or a Subsidiary Loan Party (or to qualify directors if required by applicable
law), except:
(a) the sale or other disposition for fair market value of obsolete
or worn out property or other property not necessary for operations disposed of
in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the ordinary
course of business;
(c) sale or other disposition of assets permitted under Section 7.3;
(d) sale or other disposition of Investments permitted under Section
7.4(a) and (h); and
(e) the sale or other disposition of such assets in an aggregate
amount not to exceed $10,000,000 in any Fiscal Year.
Section 7.7. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and any Subsidiary Loan Party not
involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
Section 7.8. Restrictive Agreements. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is
52
sold and such sale is permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions and conditions
apply only to the property or assets securing such Indebtedness and (iv) clause
(a) shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
Section 7.9. Sale and Leaseback Transactions. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred.
Section 7.10. Hedging Transactions. The Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
Section 7.11. Amendment to Organizational Documents. The Borrower
will not, and will not permit any of its Subsidiaries to, amend, modify or waive
any of its rights in a manner materially adverse to the Lenders under its
certificate of incorporation, bylaws or other organizational documents.
Section 7.12. Accounting Changes. The Borrower will not, and will not
permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any of its Subsidiaries, except to change the
fiscal year of a Subsidiary to conform its fiscal year to that of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
Section 8.1. Events of Default. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
53
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the Borrower's
existence) or Articles VI or VII; or
(e) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any Loan Party shall fail to observe or perform any
covenant or agreement contained in any other Loan Document to which it is a
party, and such failure shall remain unremedied for 30 days after the earlier of
(i) any officer of the Borrower becomes aware of such failure, or (ii) notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(f) the Borrower or any Subsidiary Loan Party (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of, or
premium or interest on, any Material Indebtedness that is outstanding, when and
as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument evidencing or governing such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof;
(g) the Borrower or any Subsidiary Loan Party shall (i) commence a
voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Subsidiary Loan Party or for
a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition
54
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, or (vi) take any action for the purpose of effecting any
of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary Loan Party or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Subsidiary Loan Party or for a substantial part
of its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary Loan Party shall become unable to
pay, shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $5,000,000; or
(k) any judgment or order for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guaranty Agreement shall for any
reason cease to be valid and binding on, or enforceable against, any Subsidiary
Loan Party, or any Subsidiary Loan Party shall so state in writing, or any
Subsidiary Loan Party shall seek to terminate its Subsidiary Guaranty Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower,
(iii) exercise all remedies contained in any other Loan Document, and (iv)
exercise any other remedies available at law or in equity; and that, if an
55
Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Section 9.1. Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
set forth in this Article shall apply to any such sub-agent or attorney-in-fact
and the Related Parties of the Administrative Agent, any such sub-agent and any
such attorney-in-fact and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
Section 9.2. Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
56
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.
Section 9.3. Lack of Reliance on the Administrative Agent. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be
57
genuine and to have been signed, sent or made by the proper Person. The
Administrative Agent may also rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person and shall not incur
any liability for relying thereon. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
Section 9.6. The Administrative Agent in its Individual Capacity.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
Section 9.7. Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower, such resignation to be effective in
accordance with this Section 9.7. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of
Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within 45 days after written notice is given of
the retiring Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have accepted
such appointment, then on such 45/th/ day (i) the retiring Administrative
Agent's resignation shall become effective, (ii) the retiring Administrative
Agent shall thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such
time as the Required Lenders appoint a successor Administrative Agent as
provided above. After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article IX shall continue in effect for the benefit of
such retiring Administrative Agent and its representatives and agents in respect
of any actions taken or not taken by any of them while it was serving as the
Administrative Agent.
58
Section 9.8. Authorization to Execute other Loan Documents. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Priority Healthcare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Chief Financial Officer
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Priority Healthcare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative
Agent or Swingline
Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇)-▇▇▇-▇▇▇▇
59
With a copy to: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E./ ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
King & Spalding LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Swingline
Lender: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇./▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that any Notice of Revolving Borrowing,
Notice of Swingline Borrowing or Notice of Continuation/Conversion delivered to
the Administrative Agent, the Issuing Bank or the Swingline Lender shall not be
effective until actually received by such Person at its address specified in
this Section.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person believed in
good faith to be a Person authorized by the Borrower to give
60
such notice and the Administrative Agent and Lenders shall not have any
liability to the Borrower or other Person on account of any action taken or not
taken in good faith by the Administrative Agent or the Lenders in reliance upon
such telephonic or facsimile notice. The obligation of the Borrower to repay the
Loans and all other Obligations hereunder shall not be affected in any way or to
any extent by any failure of the Administrative Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in any such telephonic or facsimile notice.
Section 10.2. Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.20 (b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi)
61
release any guarantor or limit the liability of any such guarantor under any
guaranty agreement, without the written consent of each Lender; (vii) release
all or substantially all collateral (if any) securing any of the Obligations,
without the written consent of each Lender; provided further, that no such
agreement shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent, the Swingline Lender or the Issuing
Bank without the prior written consent of such Person; provided further that
this Agreement may be amended and restated without the consent of any Lender if,
upon giving effect to such amendment and restatement, such Lender shall no
longer be a party to this Agreement (as so amended and restated) or have any
Commitment or other obligation hereunder and shall have been paid in full all
amounts payable hereunder to such Lender.
Section 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside counsel and the allocated cost of
inside counsel) incurred by the Administrative Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
(each, an "Indemnitee") against, and hold each of them harmless from, any and
all costs, losses, liabilities, claims, damages and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, which may
be incurred by or asserted against any Indemnitee arising out of, in connection
with or as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
any of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned by the Borrower
or any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided, that the Borrower shall not be obligated to indemnify
any Indemnitee for
62
any of the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a final
and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Issuing Bank or the Swingline Lender
under clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
Section 10.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose
63
includes Loans outstanding thereunder) of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000, in the case of any assignment of a Revolving Loan or
reimbursement obligation of outstanding Letters of Credit, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned and (iii) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $1,000, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon (i) the execution and delivery of the Assignment and
Acceptance by the assigning Lender and assignee Lender, (ii) acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, (iii) consent thereof from the Borrower to the extent required pursuant
to this clause (b) and (iv) if such assignee Lender is a Foreign Lender,
compliance by such Person with Section 2.22(e), from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.20, 2.21, 2.22 and 10.3. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Lender or the Issuing Bank
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided 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 and (iii) the Borrower, the
Administrative Agent, the Swingline Lender, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that
64
such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.20(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
consent of each Lender except to the extent such release is expressly provided
under the terms of the Guaranty Agreement; or (vii) release all or substantially
all collateral (if any) securing any of the Obligations. Subject to paragraph
(e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.17, 2.18, and 2.19 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.7 as though it were a Lender, provided
such Participant agrees to be subject to Section 10.7 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.19 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.19
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.19(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Florida.
65
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the Northern District of Florida, and of any state court of
the State of Florida and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Florida state court or,
to the extent permitted by applicable law, such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set
66
off and apply against all deposits (general or special, time or demand,
provisional or final) of the Borrower at any time held or other obligations at
any time owing by such Lender and the Issuing Bank to or for the credit or the
account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the
Issuing Bank shall have made demand hereunder and although such Obligations may
be unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 10.8. Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
Section 10.10. Severability. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the
67
confidentiality of any information designated in writing as confidential and
provided to it by the Borrower or any Subsidiary, except that such information
may be disclosed (i) to any Related Party of the Administrative Agent, the
Issuing Bank or any such Lender, including without limitation accountants, legal
counsel and other advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to the extent
requested by any regulatory agency or authority, (iv) to the extent that such
information becomes publicly available other than as a result of a breach of
this Section, or which becomes available to the Administrative Agent, the
Issuing Bank, any Lender or any Related Party of any of the foregoing on a
non-confidential basis from a source other than the Borrower, (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, and (ix)
subject to provisions substantially similar to this Section 10.11, to any actual
or prospective assignee or Participant, or (vi) with the consent of the
Borrower. Any Person required to maintain the confidentiality of any information
as provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such information as such Person would accord its
own confidential information. Notwithstanding anything herein to the contrary,
any party to this Agreement (and any employee, representative, or other agent of
any party to this Agreement) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to it relating to such tax treatment
and tax structure. However, any such information relating to the tax treatment
or tax structure is required to be kept confidential to the extent necessary to
comply with any applicable federal or state securities laws.
Section 10.12. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
Section 10.13. Waiver of Effect of Corporate Seal. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.
(remainder of page left intentionally blank)
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
PRIORITY HEALTHCARE CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Secretary
SUNTRUST BANK
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Revolving Commitment: $40,000,000
[Add additional separate signature pages for each additional Lender]
[NAME OF BANK]
By
------------------------------------
Name:
Title:
Revolving Commitment:
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
Schedule I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
-------------------------------------------------------
Applicable
Margin for Applicable
Pricing Leverage Eurodollar Percentage for
Level Ratio Loans Facility Fee
-------------------------------------------------------
I Less than 0.625% per 0.125% per
0.50:1.00 annum annum
-------------------------------------------------------
II Less than 0.725% per 0.15% per
1.00:1.00 but annum annum
greater than or
equal to
0.50:1.00
-------------------------------------------------------
III Less than 0.95% per 0.175% per
1.50:1.00 but annum annum
greater than or
equal to
1.00:1.00
-------------------------------------------------------
IV Less than 1.175% per 0.20% per
2.00:1.00 but annum annum
greater than or
equal to
1.50:1.0
-------------------------------------------------------
V Greater than 1.375% per 0.25% per
or equal to annum annum
2.00:1.00
-------------------------------------------------------
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
---------------------
None
SCHEDULE 4.14
SUBSIDIARIES
------------
-----------------------------------------------------------------------------------------
Ownership Jurisdiction of Type
Interest of Incorporation or of Subsidiary
Name Borrower Organization Entity Loan Party
-----------------------------------------------------------------------------------------
Priority Healthcare Pharmacy, 100% Florida corporation Yes
Inc.
-----------------------------------------------------------------------------------------
Priority Healthcare 100% Florida corporation Yes
Distribution, Inc.
-----------------------------------------------------------------------------------------
Lynnfield Drug, Inc. 100% Florida corporation Yes
-----------------------------------------------------------------------------------------
Lynnfield Compounding Center, 100% Florida corporation Yes
Inc.
-----------------------------------------------------------------------------------------
Freco, Inc. 100% Florida corporation Yes
-----------------------------------------------------------------------------------------
Chesapeake Infusion, Inc. 100% Florida corporation Yes
-----------------------------------------------------------------------------------------
Priority Healthcare 100% Nevada corporation Yes
Corporation West
-----------------------------------------------------------------------------------------
PHF, Inc. 100% Nevada corporation Yes
-----------------------------------------------------------------------------------------
PHRC, Inc. 100% Nevada corporation Yes
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Drug, Inc. 100% Massachusetts corporation Yes
-----------------------------------------------------------------------------------------
Specialty Infusion Pharmacy, 100% Florida corporation Yes
Inc.
-----------------------------------------------------------------------------------------
SinusPharmacy, Inc. 100% Florida corporation Yes
-----------------------------------------------------------------------------------------
Pharmacy Plus, Inc. 100% Florida corporation No
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. 100% Florida corporation No
-----------------------------------------------------------------------------------------
First Rx, Inc. 100% Florida corporation No
-----------------------------------------------------------------------------------------
SCHEDULE 7.1
OUTSTANDING INDEBTEDNESS
------------------------
None
SCHEDULE 7.2
EXISTING LIENS
--------------
None
SCHEDULE 7.4
EXISTING INVESTMENTS
--------------------
1. ▇▇▇▇▇▇▇ Life Sciences Capital Fund:
Current Investment: $500,000
Total Commitment: $5,000,000
2. SinusPharma, Inc.
Investment: $3,500,000
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
[date to be supplied]
Reference is made to the Revolving Credit Agreement dated as of
February 5, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among Priority Healthcare Corporation, an Indiana corporation, the
Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the
Assignee designated below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Revolving Commitment of the
Assignor on the Assignment Date and Revolving Loans owing to the Assignor which
are outstanding on the Assignment Date, together with the participations in the
LC Exposure and the Swingline Exposure of the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.19(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The Assignee shall pay the fee payable to the
Administrative Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Florida.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
Percentage Assigned Revolving
Commitment (set forth, to at least 8
decimals, as a percentage of the
Principal Amount aggregate Revolving Commitments of all
Facility Assigned Lenders thereunder)
---------------- ---------------- --------------------------------------
Revolving Loans: $ %
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By:
----------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
----------------------------------
Name:
Title:
The undersigned hereby consents to the within assignment: /1//
[Borrower] SunTrust Bank, as Administrative
Agent:
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
SunTrust Bank, as Issuing Bank:
By:
----------------------------------
Name:
Title:
----------
/1/ Consents to be included to the extent required by Section 10.4(b) of the
Credit Agreement.
EXHIBIT B
Form of
REVOLVING CREDIT NOTE
[$___________] Orlando, Florida
February 5, 2004
FOR VALUE RECEIVED, the undersigned, Priority Healthcare Corporation,
an Indiana corporation (the "Borrower"), hereby promises to pay to [name of
Lender] (the "Lender") or its registered assigns, at the office of SunTrust Bank
("SunTrust") at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
on the Revolving Commitment Termination Date (as defined in the Revolving Credit
Agreement dated as of February 5, 2004 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the lenders from time to time party thereto and SunTrust, as
Administrative Agent for the lenders, the lesser of the principal sum of [amount
of such Lender's Revolving Commitment] and the aggregate unpaid principal amount
of all Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Lender.
Upon the occurrence of an Event of Default, the Borrower promises to
pay interest, on demand, at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all
payments and prepayments of the principal hereof and the date thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, that the failure of the holder hereof to make such a notation or any
error in such notation shall not affect the obligations of the Borrower to make
the payments of principal and interest in accordance with the terms of this
Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
[SEAL]
LOANS AND PAYMENTS
--------------------------------------------------------------------------------
Unpaid Principal
Amount and Payments of Balance of Name of Person
Date Type of Loan Principal Note Making Notation
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT C
FORM OF
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
THIS SUBSIDIARY GUARANTY AGREEMENT (the "Agreement"), dated as of February
5, 2004 by and among PRIORITY HEALTHCARE CORPORATION, an Indiana corporation
(the "Borrower"), each of the subsidiaries of the Borrower listed on Schedule I
hereto (each such subsidiary individually, a "Guarantor" and collectively, the
"Guarantors") and SUNTRUST BANK, a Georgia banking corporation, as
administrative agent (the "Administrative Agent") for the several banks and
other financial institutions (the "Lenders") from time to time party to the
Revolving Credit Agreement, dated as of the date hereof, by and among the
Borrower, the Lenders, the Administrative Agent, and SunTrust Bank, as Issuing
Bank and as Swingline Lender (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
establish a revolving credit facility in favor of the Borrower;
WHEREAS, each of the Guarantors is a direct or indirect Subsidiary of the
Borrower and will derive substantial benefit from the making of Loans by the
Lenders and the issuance of Letters of Credit by the Issuing Bank; and
WHEREAS, it is a condition precedent to the obligations of the
Administrative Agent, the Issuing Bank, the Swingline Lender, and the Lenders
under the Credit Agreement that each Guarantor execute and deliver to the
Administrative Agent a Subsidiary Guaranty Agreement in the form hereof, and
each Guarantor wishes to fulfill said condition precedent;
NOW, THEREFORE, in order to induce Lenders to extend the Loans and the
Issuing Bank to issue Letters of Credit and to make the financial accommodations
as provided for in the Credit Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (i) the due and punctual payment of all Obligations including, without
limitation, (A) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (B) each payment required to be made by the Borrower under the Credit
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
C-1
obligations to provide cash collateral, and (C) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents, (ii) the due and punctual performance of
all covenants, agreements, obligations and liabilities of the Loan Parties under
or pursuant to the Credit Agreement and the other Loan Documents; and (iii) the
due and punctual payment and performance of all obligations of the Borrower,
monetary or otherwise, under any Hedging Transaction relating to the Obligations
entered into with a counterparty that was a Lender or an Affiliate of a Lender
at the time such Hedging Transaction was entered into (all the monetary and
other obligations referred to in the preceding clauses (i) through (iii) being
collectively called the "Guaranteed Obligations"). Each Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from such Guarantor, and that such Guarantor
will remain bound upon its guarantee notwithstanding any extension or renewal of
any Guaranteed Obligations.
Section 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment or protest to, demand of or
payment from the other Loan Parties of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Guarantor hereunder shall not be affected by (i) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
or exercise any right or remedy against the Borrower or any other Guarantor
under the provisions of the Credit Agreement, any other Loan Document or
otherwise, (ii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement, or (iii) the failure to perfect any
security interest in, or the release of, any of the security held by or on
behalf of the Administrative Agent or any Lender.
Section 3. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on the books of
the Administrative Agent or any Lender in favor of the Borrower or any other
Person.
Section 4. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under the Credit Agreement, any other Loan Document or any other
C-2
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or omission that may or might in any
manner or to the extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Obligations).
Section 5. Defenses of Borrower Waived. To the fullest extent permitted by
applicable law, each Guarantor waives any defense based on or arising out of any
defense of any Loan Party or the unenforceability of the Guaranteed Obligations
or any part thereof from any cause, or the cessation from any cause of the
liability of any Loan Party, other than the final and indefeasible payment in
full in cash of the Guaranteed Obligations. The Administrative Agent and the
Lenders may, at their election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with any other Loan Party
or any other guarantor, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the Guaranteed Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
each Guarantor waives any defense arising out of any such election even though
such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Guarantor or guarantor, as the case
may be, or any security.
Section 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Lenders in cash the amount of such unpaid Obligation. Upon
payment by any Guarantor of any sums to the Administrative Agent, all rights of
such Guarantor against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of any Loan Party now or hereafter held by any
Guarantor is hereby subordinated in right of payment to the prior payment in
full in cash of the Guaranteed Obligations. If any amount shall erroneously be
paid to any Guarantor on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of any
Loan Party, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
Section 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of other Loan Parties' financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and
C-3
agrees that none of the Administrative Agent or the Lenders will have any duty
to advise any of the Guarantors of information known to it or any of them
regarding such circumstances or risks.
Section 8. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 6), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under this Agreement, the Borrower shall indemnify such
Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets of any Guarantor
shall be sold to satisfy a claim of any Lender under this Agreement, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
Section 9. Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 6) that, in the event a payment shall be
made by any other Guarantor under this Agreement or assets of any other
Guarantor shall be sold to satisfy a claim of any Lender and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Borrower as provided in Section 8, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 21, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 9 shall be subrogated to the rights
of such Claiming Guarantor under Section 8 to the extent of such payment.
Section 10. Subordination. Notwithstanding any provision of this Agreement
to the contrary, all rights of the Guarantors under Section 8 and Section 9 and
all other rights of indemnity, contribution or subrogation under applicable law
or otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Guaranteed Obligations. No failure on the part of the Borrower or
any Guarantor to make the payments required under applicable law or otherwise
shall in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
Section 11. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as
a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct. Each Guarantor covenants and agrees with the Administrative Agent and
the Lenders that it shall comply with all covenants and agreements relating to
it (as a Subsidiary of the Borrower) contained in the Credit Agreement and not
to take any action (or fail to take any action) that would result in a Default
or Event of Default.
Section 12. Termination. The guarantees made hereunder (i) shall terminate
when all the Guaranteed Obligations have been paid in full in cash and the
Lenders have no further
C-4
commitment to lend under the Credit Agreement, the LC Exposure has been reduced
to zero and the Issuing Bank has no further obligation to issue Letters of
Credit under the Credit Agreement and (ii) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Lender or any
Guarantor upon the bankruptcy or reorganization of the Borrower, any Guarantor
or otherwise. In connection with the foregoing, the Administrative Agent shall
execute and deliver to such Guarantor or Guarantor's designee, at such
Guarantor's expense, any documents or instruments which such Guarantor shall
reasonably request from time to time to evidence such termination and release.
Section 13. Binding Effect; Several Agreement; Assignments. 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 Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of the
capital stock of a Guarantor is sold, transferred or otherwise disposed of
pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
Section 14. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any kind in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and of the Administrative Agent hereunder and of the
Lenders under the other Loan Documents are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be permitted by
subsection (b) below, and then such waiver and consent shall be effective only
in the specific instance and for the purpose for which given. No notice or
demand on any Guarantor in any case shall entitle such Guarantor to any other or
further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Administrative Agent,
C-5
with the prior written consent of the Required Lenders (except as otherwise
provided in the Credit Agreement).
Section 15. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
Section 16. Severability. Any provision of this Agreement held to be
illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without affecting the legality, validity or enforceability of
the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 17. Counterparts; Integration. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 13), and
shall become effective as provided in Section 13. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement. This Agreement
constitutes the entire agreement among the parties hereto regarding the subject
matters hereof and supersedes all prior agreements and understandings, oral or
written, regarding such subject matter.
Section 18. Rules of Interpretation. The rules of interpretation specified
in Section 1.4 of the Credit Agreement shall be applicable to this Agreement.
Section 19. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and be governed
by the law (without giving effect to the conflict of law principles thereof) of
the State of Florida.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
courts located within the Northern District of Florida, and of any state court
of the State of Florida and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Florida state court or,
to the extent permitted by applicable law, such Federal court. Each Guarantor
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Guarantor or its properties in the courts of any jurisdiction.
C-6
(c) Each Guarantor irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each party hereto
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each Guarantor irrevocably consents to the service of process in the
manner provided for notices in Section 10.1 of the Credit Agreement. Nothing in
this Agreement will affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law.
Section 20. Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 21. Additional Guarantors. Pursuant to Section 5.10 of the Credit
Agreement, each Material Subsidiary that was not in existence on the date of the
Credit Agreement is required to enter into this Agreement as a Guarantor upon
becoming a Material Subsidiary. Upon execution and delivery after the date
hereof by the Administrative Agent and such Material Subsidiary of an instrument
in the form of Annex 1, such Material Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
Section 22. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender 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 to or for the
credit or the account of any Guarantor against any or all the obligations of
such Guarantor now or hereafter existing under this Agreement and the other Loan
Documents held by such Lender, irrespective of whether or not such Person shall
have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 22 are in addition to other rights and remedies (including other rights
of setoff) that such Lender may have.
C-7
Section 23. Savings Clause.
(a) It is the intent of each Guarantor and the Administrative Agent that
each Guarantor's maximum obligations hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against any Guarantor
under the provisions of Title 11 of the United States Code, 11 U.S.C.
Sections 101 et seq. (the "Bankruptcy Code") on or within one year from the
date on which any of the Guaranteed Obligations are incurred, the maximum
amount which would not otherwise cause the Guaranteed Obligations (or any
other obligations of such Guarantor owed to the Administrative Agent or the
Lenders) to be avoidable or unenforceable against such Guarantor under (i)
Section 548 of the Bankruptcy Code or (ii) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against any Guarantor
under the Bankruptcy Code subsequent to one year from the date on which any
of the Guaranteed Obligations are incurred, the maximum amount which would
not otherwise cause the Guaranteed Obligations (or any other obligations of
such Guarantor to the Administrative Agent or the Lenders) to be avoidable
or unenforceable against such Guarantor under any state fraudulent transfer
or fraudulent conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against any Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise
cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Administrative Agent or the Lenders) to be avoidable or
unenforceable against such Guarantor under such law, statute or regulation
including, without limitation, any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding.
(b) The substantive laws under which the possible avoidance or
unenforceability of the Guaranteed Obligations (or any other obligations of such
Guarantor to the Administrative Agent or the Lenders) as may be determined in
any case or proceeding shall hereinafter be referred to as the "Avoidance
Provisions". To the extent set forth in Section 23(a)(i), (ii), and (iii), but
only to the extent that the Guaranteed Obligations would otherwise be subject to
avoidance or found unenforceable under the Avoidance Provisions, if any
Guarantor is not deemed to have received valuable consideration, fair value or
reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed
Obligations would render such Guarantor insolvent, or leave such Guarantor with
an unreasonably small capital to conduct its business, or cause such Guarantor
to have incurred debts (or to have intended to have incurred debts) beyond its
ability to pay such debts as they mature, in each case as of the time any of the
Guaranteed Obligations are deemed to have been incurred under the Avoidance
Provisions and after giving effect to the contribution by such Guarantor, the
maximum Guaranteed Obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving
C-8
effect thereto, would not cause the Guaranteed Obligations (or any other
obligations of such Guarantor to the Administrative Agent or the Lenders), as so
reduced, to be subject to avoidance or unenforceability under the Avoidance
Provisions.
(c) This Section 23 is intended solely to preserve the rights of the
Administrative Agent and the Lenders hereunder to the maximum extent that would
not cause the Guaranteed Obligations of such Guarantor to be subject to
avoidance or unenforceability under the Avoidance Provisions, and neither the
Guarantors nor any other Person shall have any right or claim under this Section
23 as against the Administrative Agent or Lenders that would not otherwise be
available to such Person under the Avoidance Provisions.
[Signatures Follow]
C-9
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
PRIORITY HEALTHCARE PHARMACY, INC.
By:
----------------------------------
Name:
Title:
PRIORITY HEALTHCARE DISTRIBUTION, INC.
By:
----------------------------------
Name:
Title:
LYNNFIELD DRUG, INC.
By:
----------------------------------
Name:
Title:
LYNNFIELD COMPOUNDING CENTER, INC.
By:
----------------------------------
Name:
Title:
FRECO, INC.
By:
----------------------------------
Name:
Title:
CHESAPEAKE INFUSION, INC.
By:
----------------------------------
Name:
Title:
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
PRIORITY HEALTHCARE CORPORATION WEST
By:
----------------------------------
Name:
Title:
PHF, INC.
By:
----------------------------------
Name:
Title:
PHRC, INC.
By:
----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ DRUG, INC.
By:
----------------------------------
Name:
Title:
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
SPECIALTY INFUSION PHARMACY, INC.
By:
----------------------------------
Name:
Title:
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
SINUSPHARMACY, INC.
By:
----------------------------------
Name:
Title:
SUNTRUST BANK, as Administrative Agent
By:
----------------------------------
Name:
Title:
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
SCHEDULE I TO THE
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
Guarantor(s) Address
------------ -------
Priority Healthcare Pharmacy, Inc.
Priority Healthcare Distribution, Inc.
Lynnfield Drug, Inc.
Lynnfield Compounding Center, Inc.
Freco, Inc.
Chesapeake Infusion, Inc.
Priority Healthcare Corporation West
PHF, Inc.
PHRC, Inc.
▇▇▇▇▇▇▇ Drug, Inc.
Specialty Infusion Pharmacy, Inc.
SinusPharmacy, Inc.
ANNEX 1
-------
to
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
SUPPLEMENT NO.______, dated as of _________________, to the Subsidiary
Guaranty Agreement, dated as of February 5/th/, 2004 (the "Guaranty Agreement"),
among PRIORITY HEALTHCARE CORPORATION, an Indiana corporation (the "Borrower"),
each of the subsidiaries of the Borrower listed on Schedule I thereto (each such
subsidiary individually, a "Guarantor" and collectively, the "Guarantors") and
SUNTRUST BANK, a Georgia banking corporation, as administrative agent (the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to the Revolving Credit Agreement, dated as of January
__, 2004 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and SunTrust Bank, as Administrative Agent and
issuing bank (in such capacity, the "Issuing Bank").
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Guaranty Agreement and the Credit
Agreement.
The Guarantors have entered into the Guaranty Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Pursuant to Section 5.10 of the Credit Agreement, each Material Subsidiary that
was not in existence or not a Guarantor on the date of the Credit Agreement is
required to enter into the Guaranty Agreement as a Guarantor upon becoming a
Material Subsidiary. Section 21 of the Guaranty Agreement provides that
additional Material Subsidiaries of the Borrower may become Guarantors under the
Guaranty Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Material Subsidiary of the Borrower (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Guaranty Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
Joinder. In accordance with Section 21 of the Guaranty Agreement, the New
Guarantor by its signature below becomes a Guarantor under the Guaranty
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (i) agrees to all the terms and
provisions of the Guaranty Agreement applicable to it as Guarantor thereunder
and (ii) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guaranty Agreement shall be deemed to
include the New Guarantor. The Guaranty Agreement is hereby incorporated herein
by reference.
Representations and Warranties. The New Guarantor represents and warrants
to the Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and that each of this Supplement and
the Guaranty Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
Binding Effect. This Supplement shall become effective when it shall have
been executed by the New Guarantor and thereafter shall be binding upon the New
Guarantor and shall inure to the benefit of the Administrative Agent and the
Lenders. Upon the effectiveness of this Supplement, this Supplement shall be
deemed to be a part of and shall be subject to all the terms and conditions of
the Guaranty Agreement. The New Guarantor shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
Governing Law. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE
OF FLORIDA.
Execution in Counterparts. This Supplement may be executed in any number of
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.
Notices to New Guarantor. All communications and notices hereunder shall be
in writing and given as provided in Section 15 of the Guaranty Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
[Signatures Follow]
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guaranty Agreement as of the day and year
first above written.
[NAME OF NEW GUARANTOR]
By:
----------------------------------
Name:
Title:
Address:
SUNTRUST BANK, as Administrative Agent
By:
----------------------------------
Name:
Title:
EXHIBIT D
form of
SWINGLINE NOTE
$10,000,000 Orlando, Florida
February 5, 2004
FOR VALUE RECEIVED, the undersigned, Priority Healthcare Corporation,
an Indiana corporation (the "Borrower"), hereby promises to pay to SunTrust Bank
(the "Swingline Lender") or its registered assigns, at the office of SunTrust
Bank ("SunTrust") at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, on the Revolving Commitment Termination Date (as defined in the Revolving
Credit Agreement dated as of February 5, 2004 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders from time to time party thereto and
SunTrust, as Administrative Agent for the lenders, the lesser of the principal
sum TEN MILLION AND NO/100 DOLLARS ($10,000,000) and the aggregate unpaid
principal amount of all Swingline Loans made by the Swingline Lender to the
Borrower pursuant to the Credit Agreement, in lawful money of the United States
of America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further promises to pay all costs of collection, including the reasonable
attorneys' fees of the Swingline Lender.
Upon the occurrence of an Event of Default, the Borrower promises to
pay interest, on demand, at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement.
THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
[SEAL]
LOANS AND PAYMENTS
---------------------------------------------------------------
Unpaid
Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
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---------------------------------------------------------------
---------------------------------------------------------------
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EXHIBIT E
FORM OF
LENDER JOINDER AGREEMENT
------------------------
THIS LENDER JOINDER AGREEMENT (this "Joinder"), dated as of ___________ __,
200_, is executed by [NAME OF LENDER] (the "Additional Lender") in favor of
PRIORITY HEALTHCARE CORPORATION, an Indiana corporation (the "Borrower"), and
SUNTRUST BANK, a Georgia banking corporation, as issuing bank (the "Issuing
Bank") and as administrative agent (the "Administrative Agent") for the lenders
(the "Lenders") from time to time party to the Revolving Credit Agreement, dated
as of February 5/th/, 2004, among the Borrower, the Lenders, the Issuing Bank
and the Administrative Agent (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement).
RECITALS
A. Pursuant to Section 2.22 of the Credit Agreement, the Borrower has
elected to increase the Aggregate Revolving Commitments from $__________________
to $____________________,.
B. The Additional Lender has agreed to provide a Revolving Commitment to
the Borrower in the amount of $_________________ (the "Additional Commitment
Amount") in accordance with the terms of Section 2.22 of the Credit Agreement.
NOW, THEREFORE, the Additional Lender agrees as follows:
SECTION 1. Joinder. By its signature below, the Additional Lender hereby
joins the Credit Agreement as a Lender and establishes a Revolving Commitment in
the amount of the Additional Commitment Amount to the Borrower. The Additional
Lender shall be a party to, and bound by, the Credit Agreement with the same
force and effect as if the Additional Lender had become a Lender on the Closing
Date.
SECTION 2. Representations and Warranties. The Additional Lender represents
and warrants to the Administrative Agent and the Borrower that this Joinder has
been duly authorized, executed and delivered by it and that the Credit
Agreement, as modified by this Joinder, constitutes the legal, valid and binding
obligation of the Additional Lender, enforceable against it in accordance with
its terms.
SECTION 3. Effectiveness; Automatic Increase. This Joinder shall become
effective on____________, __ 200_ when it shall have been accepted by the
Borrower and the Administrative Agent, at which time this Joinder shall be
deemed to be a part of and shall be subject to all the terms and conditions of
the Credit Agreement. Upon the acceptance of this Joinder by the Administrative
Agent, the Aggregate Revolving Commitment shall automatically be increased by an
amount equal to the Additional
Commitment Amount and Annex I of the Credit Agreement shall automatically be
deemed amended to reflect the Revolving Commitment of the Additional Lender
committed hereunder.
SECTION 4. Lack of Reliance on the Administrative Agent. The Additional
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Joinder and become a Lender under the Credit
Agreement. The Additional Lender acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking any action under or based on this
Joinder, any related agreement or any document furnished hereunder or
thereunder.
SECTION 5. Governing Law. THIS JOINDER AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE
STATE OF FLORIDA.
SECTION 6. Execution in Counterparts. This Joinder may be executed in any
number of 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.
SECTION 7. Notices to Additional Lender. All communications and notices to
the Additional Lender shall be given to it at the address set forth under its
signature below.
[Signatures Follow]
IN WITNESS WHEREOF, the Additional Lender has duly executed this Joinder as
of the day and year first above written.
ADDITIONAL LENDER:
--------------------------------------
By
------------------------------------
Name:
Title:
Address for Notices:
--------------------------------------
--------------------------------------
Telephone:
Fax:
Attn:
Acknowledged and Agreed to:
PRIORITY HEALTHCARE CORPORATION,
as Borrower
By
------------------------------------
Name:
Title:
SUNTRUST BANK, as Administrative Agent
By:
-----------------------------------
Name:
Title:
EXHIBIT 2.3
form of
NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank,
As Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
February 5, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Revolving Borrowing, and the Borrower hereby requests a Revolving Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Revolving Borrowing requested hereby:
(A) Aggregate principal amount of Revolving Borrowing /2//:_______________
(B) Date of Revolving Borrowing (which is a Business Day):________________
(C) Interest rate basis /3//:________________
(D) Interest Period /4//:____________________
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed:________________
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/2/ With respect to Eurodollar Borrowing, not less than $5,000,000 or a larger
multiple of $1,000,000, and with respect to Base Rate Borrowing, not less
that $1,000,000 or a larger multiple of $100,000.
/3/ Eurodollar Borrowing or Base Rate Borrowing.
/4/ Which must comply with the definition of "Interest Period" and end not
later than the Revolving Commitment Termination Date.
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement
are satisfied.
Very truly yours,
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
EXHIBIT 2.4
form of
NOTICE OF SWINGLINE BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
February 5, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Swingline Borrowing, and the Borrower hereby requests a Swingline Loan under the
Credit Agreement, and in that connection the Borrower specifies the following
information with respect to the Swingline Loan requested hereby:
(A) Principal amount of Swingline Loan /5//:______________________
(B) Date of Swingline Loan (which is a Business Day)______________________
(C) Location and number of Borrower's account to which proceeds of
Swingline Loan are to be disbursed:______________________
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement
are satisfied.
Very truly yours,
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
----------
/5/ Not less than $100,000 and an integral multiple of $50,000.
EXHIBIT 2.6
FORM OF CONTINUATION/CONVERSION
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
February 5, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Continuation/Conversion and the Borrower hereby requests the conversion or
continuation of a Revolving Borrowing under the Credit Agreement as described
below, and in connection with such request the Borrower specifies the following
information with respect to the Revolving Borrowing to be converted or continued
as requested hereby:
(A) Revolving Borrowing to which this request applies:
(B) Principal amount of Revolving Borrowing to be converted/continued:
_________________
(C) Effective date of election (which is a Business Day):_________________
(D) Interest rate basis:_________________
(E) Interest Period:_________________
Very truly yours,
PRIORITY HEALTHCARE CORPORATION
By:
----------------------------------
Name:
Title:
EXHIBIT 5.1(c)
FORM OF
OFFICER'S COMPLIANCE CERTIFICATE
--------------------------------
To: SunTrust Bank, as Administrative Agent
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as of
February 5, 2004 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), by and among PRIORITY HEALTHCARE CORPORATION, an Indiana
corporation (the "Borrower"), the lenders from time to time party thereto (the
"Lenders"), and SUNTRUST BANK, in its capacity as Administrative Agent for the
Lenders (the "Administrative Agent"), as issuing bank (the "Issuing Bank") and
as swingline lender (the "Swingline Lender"). Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement. This certificate is being delivered pursuant to Section 5.1(c)
of the Credit Agreement.
Each of the undersigned, in his capacity as the Chief Financial Officer or
the Chief Executive Officer of the Borrower, as the case may be, DOES HEREBY
represent and warrant, on behalf of the Borrower, that:
(a) I have reviewed the financial statements (the "Financial Statements")
of the Borrower and its Subsidiaries attached as Exhibit A;
(b) The Financial Statements fairly represent, in all material respects,
the financial condition, results of operations, shareholders' equity and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP at such date
and for such period, subject only to normal year-end audit adjustments and the
absence of footnotes in the case of unaudited Financial Statements;
(c) The Financial Statements have been filed with the Securities and
Exchange Commission, the required officers of the Borrower have made the
certifications to the Securities and Exchange Commission required under Sections
302(a) and 906(a) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and such
certifications are true and correct;
(d) As of the date hereof, there exists no Default or Event of Default
except those listed on Exhibit B attached hereto, which exhibit specifies the
details of the Default or Event of Default as well as actions the Borrower has
taken or proposes to take with respect thereto;
(e) Attached hereto as Exhibit C are calculations set forth in reasonable
detail demonstrating compliance with Article VI of the Credit Agreement; and
(f) Since the date of the previous audited Financial Statements delivered
pursuant to Section 4.4 or Section 5.1 of the Credit Agreement, as applicable,
there has been no change in GAAP or the application thereof except for such
changes set forth in Exhibit D attached hereto, which exhibit specifies the
effect of such change or changes on the Financial Statements delivered herewith.
IN WITNESS WHEREOF, each of the undersigned has signed his name, in his
capacity as the Chief Financial Officer or Chief Executive Officer of the
Borrower, as the case may be, and on behalf of the Borrower, this __ day of
_____________, 200__.
--------------------------------------
Name:
Title: Chief Financial Officer
--------------------------------------
Name:
Title: Chief Executive Officer
EXHIBIT A
Financial Statements
EXHIBIT B
Events of Default
EXHIBIT C
Compliance Calculations
EXHIBIT D
Changes in GAAP
