Exhibit 10(b)
CREDIT AGREEMENT
Dated as of March 12, 1999
among
ACCESS WORLDWIDE COMMUNICATIONS, INC.,
as Borrower,
and
Certain Subsidiaries,
as Guarantors,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS...................................................... 1
-----------
1.1 Definitions....................................................... 1
-----------
1.2 Computation of Time Periods....................................... 23
---------------------------
1.3 Accounting Terms.................................................. 23
----------------
SECTION 2 CREDIT FACILITIES................................................ 24
-----------------
2.1 Revolving Loans................................................... 24
---------------
2.2 Letter of Credit Subfacility...................................... 26
----------------------------
2.3 Swingline Loan Subfacility........................................ 31
--------------------------
2.4 Term Loan......................................................... 33
---------
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES................... 34
-----------------------------------------------
3.1 Default Rate...................................................... 34
------------
3.2 Extension and Conversion.......................................... 35
------------------------
3.3 Prepayments....................................................... 35
-----------
3.4 Termination and Reduction of Commitments.......................... 36
----------------------------------------
3.5 Fees.............................................................. 36
----
3.6 Capital Adequacy.................................................. 37
----------------
3.7 Inability To Determine Interest Rate.............................. 38
------------------------------------
3.8 Illegality........................................................ 38
----------
3.9 Requirements of Law............................................... 38
-------------------
3.10 Taxes............................................................ 39
-----
3.11 Indemnity........................................................ 41
---------
3.12 Pro Rata Treatment............................................... 42
------------------
3.13 Sharing of Payments.............................................. 43
-------------------
3.14 Payments, Computations, Etc...................................... 43
----------------------------
3.15 Evidence of Debt................................................. 45
----------------
SECTION 4 GUARANTY......................................................... 46
--------
4.1 The Guarantee..................................................... 46
-------------
4.2 Obligations Unconditional......................................... 46
-------------------------
4.3 Reinstatement..................................................... 47
-------------
4.4 Certain Additional Waivers........................................ 48
--------------------------
4.5 Remedies.......................................................... 48
--------
4.6 Rights of Contribution............................................ 48
----------------------
4.7 Continuing Guarantee.............................................. 49
--------------------
SECTION 5 CONDITIONS....................................................... 49
----------
5.1 Conditions to Closing............................................. 49
---------------------
5.2 Conditions to All Extensions of Credit............................ 51
--------------------------------------
SECTION 6 REPRESENTATIONS AND WARRANTIES................................... 52
------------------------------
6.1 Financial Condition............................................... 52
-------------------
6.2 No Changes or Restricted Payments................................. 52
---------------------------------
6.3 Organization; Existence; Compliance with Law...................... 52
--------------------------------------------
6.4 Power; Authorization; Enforceable Obligations..................... 53
---------------------------------------------
6.5 No Legal Bar...................................................... 53
------------
6.6 No Material Litigation............................................ 53
----------------------
i
6.7 No Default........................................................ 54
----------
6.8 Ownership of Property; Liens...................................... 54
----------------------------
6.9 Intellectual Property............................................. 54
---------------------
6.10 No.Burdensome Restrictions....................................... 54
--------------------------
6.11 Taxes............................................................ 54
-----
6.12 ERISA............................................................ 55
-----
6.13 Governmental Regulations, Etc.................................... 56
-----------------------------
6.14 Subsidiaries..................................................... 56
------------
6.15 Purpose of Extensions of Credit.................................. 57
-------------------------------
6.16 Environmental Matters............................................ 57
---------------------
6.17 Year.2000 Compliance............................................. 58
--------------------
SECTION 7 AFFIRMATIVE COVENANTS............................................ 58
---------------------
7.1 Financial Statements.............................................. 58
--------------------
7.2 Certificates; Other Information................................... 59
-------------------------------
7.3 Notices........................................................... 60
-------
7.4 Payment of Obligations............................................ 61
----------------------
7.5 Conduct of Business and Maintenance of Existence.................. 62
------------------------------------------------
7.6 Maintenance of Property; Insurance................................ 62
----------------------------------
7.7 Inspection of Property; Books and Records; Discussions............ 62
------------------------------------------------------
7.8 Environmental Laws................................................ 62
------------------
7.9 Financial Covenants............................................... 63
-------------------
7.10 Administrative Fees.............................................. 64
-------------------
7.11 Additional Guaranties, Stock Pledges and Collateral.............. 64
---------------------------------------------------
7.12 Ownership of Subsidiaries........................................ 65
-------------------------
7.13 Use.of Proceeds.................................................. 65
---------------
7.14 Interest Rate Protection Agreements.............................. 64
-----------------------------------
7.15 Year.2000 Compatibility.......................................... 65
-----------------------
7.16 Field Examination................................................ 65
-----------------
SECTION 8 NEGATIVE COVENANTS............................................... 65
8.1 Indebtedness...................................................... 66
------------
8.2 Liens............................................................. 67
-----
8.3 Consolidation, Merger, Sale or Purchase of Assets, etc............ 67
------------------------------------------------------
8.4 Advances, Investments and Loans................................... 68
-------------------------------
8.5 Transactions with Affiliates...................................... 69
----------------------------
8.6 Ownership of Equity Interests..................................... 69
-----------------------------
8.7 Fiscal Year....................................................... 69
-----------
8.8 Prepayments of Indebtedness, etc.................................. 69
---------------------------------
8.9 Restricted Payments............................................... 69
-------------------
8.10 Sale.Leasebacks.................................................. 70
---------------
8.11 Limitations on Restricted Actions................................ 70
---------------------------------
8.12 No.Further Negative Pledges...................................... 70
---------------------------
8.13 No.Foreign Subsidiaries.......................................... 71
-----------------------
SECTION 9 EVENTS OF DEFAULT................................................ 71
-----------------
9.1 Events of Default................................................. 71
-----------------
9.2 Acceleration; Remedies............................................ 73
----------------------
ii
SECTION 10 AGENCY PROVISIONS............................................... 74
-----------------
10.1 Appointment...................................................... 74
-----------
10.2 Delegation of Duties............................................. 75
--------------------
10.3 Exculpatory Provisions........................................... 75
----------------------
10.4 Reliance on Communications....................................... 75
--------------------------
10.5 Notice of Default................................................ 76
-----------------
10.6 Non-Reliance on Agent and Other Lenders.......................... 76
---------------------------------------
10.7 Indemnification.................................................. 77
---------------
10.8 Agent in its Individual Capacity................................. 77
--------------------------------
10.9 Successor Agent.................................................. 77
---------------
SECTION 11 MISCELLANEOUS................................................... 78
-------------
11.1 Notices.......................................................... 78
-------
11.2 Right of Set-Off................................................. 79
----------------
11.3 Benefit of Agreement............................................. 79
--------------------
11.4 No.Waiver; Remedies Cumulative................................... 82
------------------------------
11.5 Payment of Expenses, etc......................................... 82
------------------------
11.6 Amendments, Waivers and Consents................................. 83
--------------------------------
11.7 Counterparts..................................................... 84
------------
11.8 Headings......................................................... 85
--------
11.9 Survival......................................................... 85
--------
11.10 Governing Law; Submission to Jurisdiction; Venue................ 85
------------------------------------------------
11.11 Severability.................................................... 86
------------
11.12 Entirety........................................................ 86
--------
11.13 Binding Effect; Termination..................................... 86
---------------------------
11.14 Confidentiality................................................. 86
---------------
11.15 Source of Funds................................................. 87
---------------
11.16 Conflict........................................................ 87
--------
iii
SCHEDULES
Schedule 1.1 Form of Subordination Agreement
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(b) Form of Notice of Request for Letter of Credit
Schedule 2.4(d) Form of Term Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(g)(v) Form of Officer's Certificate
Schedule 6.6 Description of Legal Proceedings
Schedule 6.8 Existing Liens
Schedule 6.14 Subsidiaries
Schedule 7.2 Form of Officer's Compliance Certificate
Schedule 7.11 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.4 Existing Investments
Schedule 11.1 Lenders and Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
4
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of March 12, 1999 (the "Credit Agreement"),
----------------
is by and among ACCESS WORLDWIDE COMMUNICATIONS, INC., a Delaware corporation
(the "Borrower"), and the Subsidiaries of the Borrower identified on the
--------
signature pages hereto and such other Subsidiaries of the Borrower as may from
time to time become Guarantors hereunder in accordance with the provisions
hereof (the "Guarantors"), the lenders named herein and such other lenders as
----------
may become a party hereto (the "Lenders"), and NATIONSBANK, N.A., as Agent (in
-------
such capacity, the "Agent").
-----
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide $65 million
credit facilities for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
-----------
1.1 Definitions.
-----------
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a Guarantor
-----------------------
after the Closing Date by execution of a Joinder Agreement.
"Agent" shall have the meaning assigned to such term in the heading
-----
hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement, dated as of
------------------
January 20, 1999, between the Agent and the Borrower, as amended, modified,
supplemented or replaced from time to time.
"Agent's Fees" shall have the meaning assigned to such term in Section
------------
3.5(c).
"Affiliate" means, with respect to any Person, any other Person (i)
---------
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding five percent (5%) or more of the equity interest in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Services Address" means NationsBank, N.A., NC1-001-15-04, 101
-----------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Agency
Services, or such other address as may be identified by written notice from
the Agent to the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate amount of
------------------------------------
Revolving Commitments in effect from time to time, not to exceed FORTY
MILLION DOLLARS ($40,000,000).
"Applicable Percentage" means for any day, the rate per annum set
---------------------
forth below opposite the applicable Consolidated Leverage Ratio then in
effect, it being understood that the Applicable Percentage for (i) Base
Rate Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set forth under the
column "Eurodollar Margin and Letter of Credit Fee", (iii) the Letter of
Credit Fee shall be the percentage set forth under the column "Eurodollar
Margin and Letter of Credit Fee" and (iv) the Commitment Fee shall be the
percentage set forth under the column "Commitment Fee":
Eurodollar
Margin
Consolidated and
Pricing Leverage Base Rate Letter of Commitment
Level Ratio Margin Credit Fee Fee
----- ----- ------ ---------- ---
I less than 1.0 0.0% 1.25% 0.25%
II less than 1.0 but greater than 1.5 0.0% 1.50% 0.30%
III less than 1.5 but greater than 2.0 0.375% 1.875% 0.375%
IV less than 2.0 but greater than2.5 0.625% 2.125% 0.50%
V less than 2.5 but greater than 1.0% 2.50% 0.50%
The Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Rate Determination Date") five (5) Business Days after the
-----------------------
date by which the annual and quarterly compliance certificates and related
financial statements and information are required in accordance with the
provisions of Sections 7.1(a) and (b) and Section 7.2(b), as appropriate;
provided that:
--------
2
(i) the initial Applicable Percentages shall be based on Pricing
Level III and shall remain in effect at such Pricing Level until the
first Rate Determination Date to occur after the Closing Date, and
(ii) in the event an annual or quarterly compliance certificate
and related financial statements and information are not delivered
timely to the Agency Services Address by the date required by Sections
7.1(a) and (b) and Section 7.2(b), as appropriate, the Applicable
Percentages shall be based on Pricing Level V until such time as an
appropriate compliance certificate and related financial statements
and information are delivered, whereupon the applicable Pricing Level
shall be adjusted based on the information contained in such
compliance certificate and related financial statements and
information.
Except as provided in clause (ii) above, each Applicable Percentage shall
be effective from a Rate Determination Date until the next such Rate
Determination Date. The Agent shall determine the appropriate Applicable
Percentages in the pricing matrix promptly upon receipt of the quarterly or
annual compliance certificate and related financial information and shall
promptly notify the Borrower and the Lenders of any change thereof. Such
determinations by the Agent shall be conclusive absent manifest error.
Adjustments in the Applicable Percentages shall be effective as to existing
Extensions of Credit as well as new Extensions of Credit made thereafter.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
---------------
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
----------------
of any of the following with respect to such Person: (i) a Governmental
Authority having jurisdiction shall enter a decree or order for relief in
respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or ordering the winding up or liquidation of its
affairs; or (ii) there shall be commenced against such Person an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period of
sixty (60) consecutive days; or (iii) such Person shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or make any general assignment for
the benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they become
due.
3
"Base Rate" means, for any day, the rate per annum (rounded upwards,
---------
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
----
or (b) the Prime Rate in effect on such day. If for any reason the Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable after due inquiry to ascertain the
Federal Funds Rate for any reason, including the inability or failure of
the Agent to obtain sufficient quotations in accordance with the terms
hereof, the Base Rate shall be determined without regard to clause (a) of
the first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on
the effective date of such change in the Prime Rate or the Federal Funds
Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
--------------
by reference to the Base Rate.
"Borrower" means Access Worldwide Communications, Inc., a Delaware
--------
corporation, as referenced in the opening paragraph, its successors and
permitted assigns.
"Business Day" means a day other than a Saturday, Sunday or other day
------------
on which commercial banks in Charlotte, North Carolina, Princeton, New
Jersey or New York, New York are authorized or required by law to close,
except that, when used in connection with a Eurodollar Loan, such day shall
------ ----
also be a day on which dealings between banks are carried on in Dollar
deposits in London, England.
"Capital Expenditures" means, for any period, without duplication, all
--------------------
expenditures (whether paid in cash or other consideration) during such
period that, in accordance with GAAP, are or should be included in
additions to property, plant and equipment or similar items reflected in
the consolidated statement of cash flows for such period; provided, that
--------
Capital Expenditures shall not include, for purposes hereof, expenditures
of proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to
replace or repair such lost, destroyed, damaged or condemned assets,
equipment or other property or otherwise to acquire assets or properties
useful in the business of the members of the Consolidated Group.
"Capital Lease" means, as applied to any Person, any lease of any
-------------
Property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Capital Lease Obligation" means the capital lease obligations
------------------------
relating to a Capital Lease determined in accordance with GAAP.
4
"Cash Equivalents" means (a) securities issued or directly and fully
----------------
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, or (ii) any domestic
commercial bank of recognized standing (y) having capital and surplus in
excess of $500,000,000 and (z) whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at
least P-1 or the equivalent thereof (any such bank being an "Approved
--------
Bank"), in each case with maturities of not more than 270 days from the
date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six months of
the date of acquisition, (d) repurchase agreements entered into by a Person
with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in
which such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase thereof, a
fair market value of at least 100% of the amount of the repurchase
obligations, (e) obligations of any State of the United States or any
political subdivision thereof, the interest with respect to which is exempt
from federal income taxation under Section 103 of the Internal Revenue
Code, having a long term rating of at least AA- or Aa-3 by S&P or Moody's,
respectively, and maturing within three years from the date of acquisition
thereof, (f) Investments in municipal auction preferred stock (i) rated AAA
(or the equivalent thereof) or better by S&P or Aaa (or the equivalent
thereof) or better by Moody's and (ii) with dividends that reset at least
once every 365 days and (g) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least $100,000,000
and the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (f).
"Change of Control" means the occurrence of any of the following
-----------------
events: (i) other than Abbingdon Venture Partners Limited Partnership II
and Abbingdon Venture Partners Limited Partnership III, any Person or two
or more Persons acting in concert shall have acquired beneficial ownership,
directly or indirectly, of, or shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of or control over,
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 35% or more of the combined voting power of all
Voting Stock of the Borrower, or (ii) during any period of up to 24
consecutive months, commencing after the Closing Date, individuals who at
the beginning of such 24 month period were directors of the Borrower
(together with any new director whose election or nomination for election
by the Borrower's board of directors or whose nomination for election by
the Borrower's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved)
5
cease for any reason to constitute a majority of the directors of the
Borrower then in office. As used herein, "beneficial ownership" shall have
the meaning provided in Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934.
"Closing Date" means the date hereof.
------------
"Collateral" means all collateral described in and covered by the
----------
Pledge Agreement and the Security Agreement.
"Commitment" means the Revolving Commitment, the LOC Commitment, the
----------
Swingline Commitment and the Term Loan Commitment.
"Commitment Fee" shall have the meaning assigned such term in Section
--------------
3.5(a).
"Commitment Percentage" means the Revolving Commitment Percentage or
---------------------
the Term Loan Commitment Percentage, as appropriate.
"Commitment Period" means the period from and including the Closing
-----------------
Date to but not including the earlier of (i) the Termination Date, or (ii)
the date on which the Commitments terminate in accordance with the
provisions of this Credit Agreement.
"Consolidated Adjusted EBITDA" means for any period for the
----------------------------
Consolidated Group, the sum of Consolidated EBITDA plus lease and rent
----
expense minus all provisions for federal, state or other domestic and
-----
foreign income taxes, in each case on a consolidated basis determined in
accordance with GAAP applied on an consistent basis. Except as otherwise
expressly provided, the applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.
"Consolidated EBITDA" means for any period for the Consolidated Group,
-------------------
the sum of Consolidated Net Income plus Consolidated Interest Expense plus
---- ----
all provisions for federal, state or other domestic and foreign income
taxes plus depreciation and amortization less the cash component of all
----
earn-out payments in connection with acquisition transactions, in each case
on a consolidated basis determined in accordance with GAAP applied on a
consistent basis. Except as otherwise expressly provided, the applicable
period shall be for the four consecutive fiscal quarters ending as of the
date of determination.
"Consolidated Fixed Charge Coverage Ratio" means for any period, the
----------------------------------------
ratio of Consolidated Adjusted EBITDA to Consolidated Fixed Charges.
"Consolidated Fixed Charges" means for any period for the Consolidated
--------------------------
Group, the sum of Consolidated Interest Expense plus lease and rental
----
expense plus scheduled maturities of Consolidated Funded Debt paid
----
(including, for purposes hereof, mandatory commitment reductions, sinking
fund payments and the like relating thereto), in each case on a
consolidated basis determined in accordance with GAAP applied on an
consistent
6
basis. Except as otherwise expressly provided, the applicable period shall
be for the four consecutive fiscal quarters ending as of the date of
determination.
"Consolidated Funded Debt" means Funded Debt of the Consolidated Group
------------------------
determined on a consolidated basis in accordance with GAAP applied on a
consistent basis.
"Consolidated Group" means the Borrower and its consolidated
------------------
Subsidiaries, as determined in accordance with GAAP.
"Consolidated Interest Expense" means for any period for the
-----------------------------
Consolidated Group, all interest expense, including the amortization of
debt discount and premium and the interest component under Capital Leases,
in each case on a consolidated basis determined in accordance with GAAP
applied on a consistent basis. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as of
the date of determination.
"Consolidated Leverage Ratio" means, as of the last day of any fiscal
---------------------------
quarter, the ratio of Consolidated Funded Debt on such day to Consolidated
EBITDA for the period of four consecutive fiscal quarters ending as of such
day.
"Consolidated Net Income" means for any period for the Consolidated
-----------------------
Group, net income on a consolidated basis determined in accordance with
GAAP applied on a consistent basis, but excluding for purposes of
determining the Consolidated Leverage Ratio, the Consolidated Senior
Leverage Ratio and Consolidated Fixed Charge Coverage Ratio, any
extraordinary gains or losses and related tax effects thereon. Except as
expressly provided otherwise, the applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Consolidated Net Worth" means, as of any date for the Consolidated
----------------------
Group, shareholders' equity or net worth as determined in accordance with
GAAP.
"Consolidated Senior Leverage Ratio" means, as of the last day of any
----------------------------------
fiscal quarter, the ratio of (a) Consolidated Funded Debt on such day minus
-----
Subordinated Debt to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending as of such day.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
security issued by such Person or of any material agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Credit Documents" means a collective reference to this Credit
----------------
Agreement, the Notes, the LOC Documents, the Pledge Agreement, the Security
Agreement, the Mortgages, each Joinder Agreement, the Agent's Fee Letter,
and all other related
7
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
------------
"Default" means any event, act or condition which with notice or lapse
-------
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
-----------------
(i) has failed to make an Extension of Credit required pursuant to the
terms of this Credit Agreement, (ii) has failed to pay to the Agent or any
Lender an amount owed by such Lender pursuant to the terms of the Credit
Agreement or any other of the Credit Documents, or (iii) has been deemed
insolvent or has become subject to a bankruptcy or insolvency proceeding or
to a receiver, trustee or similar proceeding.
"Dollars" and "$" means dollars in lawful currency of the United
------- -
States of America.
"Domestic Credit Party" means any Credit Party which is incorporated
---------------------
or organized under the laws of any State of the United States or the
District of Columbia.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
-------------------
organized under the laws of any State of the United States or the District
of Columbia.
"Environmental Laws" means any and all lawful and applicable Federal,
------------------
state, local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
Materials of Environmental Concern into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of Materials of Environmental
Concern.
"Equity Transaction" means, with respect to any member of the
------------------
Consolidated Group, any issuance of shares of its capital stock or other
equity interest, other than an issuance (i) to a member of the Consolidated
Group, (ii) in connection with a conversion of debt securities to equity,
(iii) in connection with exercise by a present or former employee, officer
or director under a stock incentive plan, stock option plan or other
equity-based compensation plan or arrangement or (iv) by the Borrower of
its common stock in connection with an acquisition consummated prior to the
Closing Date or an acquisition permitted by Section 8.3 .
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
8
"ERISA Affiliate" means an entity which is under common control with
---------------
any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is
a member of a group which includes the Borrower and which is treated as a
single employer under Sections 414(b) or (c) of the Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
-----------
Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (v) any event or condition which would reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan;
(vi) the complete or partial withdrawal of the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA exist
with respect to any Plan; or (viii) the adoption of an amendment to any
Plan requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
"Eurodollar Loan" means any Loan bearing interest at a rate determined
---------------
by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
---------------
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to
the following formula:
Eurodollar Rate = Interbank Offered Rate
--------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
-----------------------------
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities as
that term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest rate
of Eurodollar Loans is determined), whether or not Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may
9
be available from time to time to a Lender. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" means such term as defined in Section 9.1.
----------------
"Extension of Credit" means, as to any Lender, the making of, or
-------------------
participation in, a Loan by such Lender or the issuance or extension of, or
participation in, a Letter of Credit.
"Fees" means all fees payable pursuant to Section 3.5.
----
"Federal Funds Rate" means, for any day, the rate of interest per
------------------
annum (rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day,
provided that (A) if such day is not a Business Day, the Federal Funds Rate
--------
for such day shall be such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Agent on such day on such transactions as determined by the
Agent.
"Foreign Subsidiary" means a Subsidiary which is not a Domestic
------------------
Subsidiary.
"Funded Debt" means, with respect to any Person, without duplication,
-----------
(i) all Indebtedness of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes (including
seller notes) or similar instruments, or upon which interest payments are
customarily made, (iii) all purchase money Indebtedness (including for
purposes hereof, indebtedness and obligations described in clauses (iii)
and (iv) of the definition of "Indebtedness") of such Person, including
without limitation the principal portion of all obligations of such Person
under Capital Leases, (iv) all Support Obligations of such Person with
respect to Funded Debt of another Person, (v) the maximum available amount
of all standby letters of credit or acceptances issued or created for the
account of such Person, (vi) all Funded Debt of another Person secured by a
Lien on any Property of such Person, whether or not such Funded Debt has
been assumed, provided that for purposes hereof the amount of such Funded
--------
Debt shall be limited to the greater of (A) the amount of such Funded Debt
as to which there is recourse to such Person and (B) the fair market value
of the property which is subject to the Lien, (vii) the outstanding
attributed principal amount under any securitization transaction, (viii)
the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction
is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP and (ix) the
aggregate amount of all earn-out payments actually earned by a seller of
any business or other assets in connection with any
10
acquisition made before or after the Closing Date and due by such Person to
such seller. The Funded Debt of any Person shall include the Funded Debt of
any partnership or joint venture in which such Person is a general partner
or joint venturer, but only to the extent to which there is recourse to
such Person for the payment of such Funded Debt.
"GAAP" means generally accepted accounting principles in the United
----
States applied on a consistent basis and subject to the terms of Section
1.3 hereof.
"Governmental Authority" means any federal, state, local or foreign
----------------------
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantor" means each of those other Persons identified as a
---------
"Guarantor" on the signature pages hereto, and each other Person which may
hereafter become a Guarantor by execution of a Joinder Agreement, together
with their successors and permitted assigns.
"Guaranteed Obligations" means, as to each Guarantor, without
----------------------
duplication, (i) all obligations of the Borrower (including interest
accruing after a Bankruptcy Event, regardless of whether such interest is
allowed as a claim under the Bankruptcy Code) to the Lenders and the Agent,
whenever arising, under this Credit Agreement, the Notes or the other
Credit Documents, and (ii) all liabilities and obligations, whenever
arising, owing from the Borrower to any Lender, or any Affiliate of a
Lender, arising under any Hedging Agreement relating to Obligations
hereunder.
"Hedging Agreements" means any interest rate protection agreement or
------------------
foreign currency exchange agreement between the Borrower and any Lender or
any Affiliate of a Lender.
"Indebtedness" of any Person means, without duplication, (i) all
------------
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes (including seller notes) or
similar instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (iv) all
obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased by such Person (other than trade debt
incurred in the ordinary course of business and due within six months of
the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person (including, without limitation, any earn-out payments
which have been earned and are owing with respect to any acquisition made
by such Person), (v) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (vi) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, provided that for purposes hereof the amount of such Indebtedness
--------
shall be limited to the greater of (A) the amount of such
11
Indebtedness as to which there is recourse to such Person and (B) the fair
market value of the property which is subject to the Lien, (vii) all
Support Obligations of such Person, (viii) the principal portion of all
obligations of such Person under Capital Leases, (ix) all obligations of
such Person in respect of interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements or
other interest or exchange rate or commodity price hedging agreements
(including, but not limited to, the Hedging Agreements), (x) the maximum
amount of all standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed), (xi) all
preferred stock issued by such Person and required by the terms thereof to
be redeemed, or for which mandatory sinking fund payments are due, by a
fixed date, (xii) the outstanding attributed principal amount under any
securitization transaction and (xiii) the principal balance outstanding
under any synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product to which such Person is
a party, where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP. 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, but only to the extent to which there is recourse to such
Person for payment of such Indebtedness.
"Interbank Offered Rate" means, for the Interest Period for each
----------------------
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal
to the rate of interest, determined by the Agent on the basis of the
offered rates for deposits in Dollars for a period of time corresponding to
such Interest Period (and commencing on the first day of such Interest
Period), appearing on Telerate Page 3750 (or, if, for any reason, Telerate
Page 3750 is not available, the Reuters Screen LIBO Page) as of
approximately 11:00 A.M. (London time) two (2) Business Days before the
first day of such Interest Period. As used herein, "Telerate Page 3750"
means the display designated as page 3750 by Dow ▇▇▇▇▇ Markets, Inc. (or
such other page as may replace such page on that service for the purpose of
displaying the British Bankers Association London interbank offered rates)
and "Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Interest Payment Date" means (i) as to any Base Rate Loan, the last
---------------------
day of each March, June, September and December, the date of repayment of
principal of such Loan and the Termination Date and (ii) as to any
Eurodollar Loan and Swingline Loan, the last day of each Interest Period
for such Loan, the date of repayment of principal of such Loan and on the
Termination Date, and in addition where the applicable Interest Period is
more than three months, then also on the date three months from the
beginning of the Interest Period, and each three months thereafter. If an
Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business
Day.
12
"Interest Period" means (i) as to any Eurodollar Loan, a period of
---------------
one, two, three or six months' duration, as the Borrower may elect,
commencing in each case on the date of the borrowing (including
conversions, extensions and renewals) and (ii) as to any Swingline Loan, a
period of such duration, not to exceed 30 days, as the Borrower may request
and the Swingline Lender may agree in accordance with the provisions of
Section 2.3(b)(i), commencing in each case, on the date of borrowing;
provided, however, (A) if any Interest Period would end on a day which is
-------- -------
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that in the case of Eurodollar Loans where
the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day), (B) in the case of Loans
other than those comprising the Term Loan, no Interest Period shall extend
beyond the Termination Date, and in the case of Loans comprising the Term
Loan, no Interest Period shall extend beyond any principal amortization
payment date unless, and to the extent that, the portion of the Term Loan
comprised of Eurodollar Loans expiring prior to the applicable principal
amortization payment date plus the portion of the Term Loan comprised of
Base Rate Loans equals or exceeds the principal amortization payment then
due; and (C) in the case of Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such Interest Period
shall end on the last day of such calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code shall be construed also
to refer to any successor sections.
"Investment", in any Person, means any loan or advance to such Person,
----------
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of, or equity interest in, such
Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any Support Obligation incurred
for the benefit of such Person.
"Issuing Lender" means NationsBank.
--------------
"Issuing Lender Fees" shall have the meaning assigned to such term in
-------------------
Section 3.5(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the
-----------------
form of Schedule 7.11 hereto, executed and delivered by an Additional
-------------
Credit Party in accordance with the provisions of Section 7.11.
"Lenders" means each of the Persons identified as a "Lender" on the
-------
signature pages hereto, and their successors and assigns.
13
"Letter of Credit" means any standby letter of credit issued by the
----------------
Issuing Lender for the account of the Borrower in accordance with the terms
of Section 2.2.
"Letter of Credit Fee" shall have the meaning assigned such term in
--------------------
Section 3.5(b)(i).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the
Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and any lease in
the nature thereof).
"Loan" or "Loans" means the Revolving Loans, Swingline Loans and/or
---- -----
the Term Loan.
"LOC Commitment" means the commitment of the Issuing Lender to issue,
--------------
and to honor payment obligations under, Letters of Credit hereunder and
with respect to each Revolving Lender, the commitment of each Revolving
Lender to purchase participation interests in the Letters of Credit up to
such Revolving Lender's LOC Committed Amount as specified in Schedule
--------
2.1(a), as such amount may be reduced from time to time in accordance with
------
the provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate amount of
--------------------
all of the LOC Commitments of the Revolving Lenders to issue and
participate in Letters of Credit as referenced in Section 2.2(a) and,
individually, the amount of each Revolving Lender's LOC Commitment as
specified in Schedule 2.1(a).
---------------
"LOC Documents" means, with respect to any Letter of Credit, such
-------------
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (i)
the rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
---------------
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
----
(ii) the aggregate amount of all drawings under Letters of Credit honored
by the Issuing Lender but not theretofore reimbursed.
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
condition (financial or otherwise), operations, business, assets,
liabilities or prospects of the Consolidated Group taken as a whole, (ii)
the ability of the Credit Parties taken as a whole
14
to perform any material obligation under the Credit Documents to which it
is a party or (iii) the rights and remedies of the Lenders under the Credit
Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
-------
assignee of the business of such company in the business of rating
securities.
"Mortgages" means those mortgages, deeds of trust, security deeds or
---------
like instruments given to the Agent for the benefit of the Lenders to
secure the Obligations hereunder, as amended and modified.
"Mortgaged Property" means the property which is the subject of a
------------------
Mortgage as referenced therein.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
------------------
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
----------------------
Subsidiary of the Borrower or any ERISA Affiliate and at least one employer
other than the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
-----------
"Net Proceeds" means gross cash proceeds (including any cash received
------------
by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received in connection with an
Equity Transaction net of (i) reasonable transaction costs, including
underwriting discounts and commissions and (ii) estimated taxes payable in
connection therewith.
"Non-Excluded Taxes" means such term as is defined in Section 3.10.
------------------
"Note" or "Notes" means any Revolving Note or any Term Note.
---- -----
"Notice of Borrowing" means a written notice of borrowing in
-------------------
substantially the form of Schedule 2.1(b)(i), as required by Section
------------------
2.1(b)(i).
"Notice of Extension/Conversion" means a written notice of extension
------------------------------
or conversion in substantially the form of Schedule 3.2, as required by
------------
Section 3.2.
15
"Obligations" means, collectively, the Revolving Loans, the Swingline
-----------
Loans, the LOC Obligations and the Term Loan.
"Operating Lease" means, as applied to any Person, any lease
---------------
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed) which
is not a Capital Lease other than any such lease in which that Person is
the lessor.
"Participation Interest" means the purchase by a Lender of a
----------------------
participation in LOC Obligations as provided in Section 2.2(c), in
Swingline Loans as provided in Section 2.3(b)(iii) and in Loans as provided
in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Investments" means Investments which are either (i) cash
---------------------
and Cash Equivalents; (ii) accounts receivable created, acquired or made in
the ordinary course of business and payable or dischargeable in accordance
with customary trade terms; (iii) Investments consisting of stock,
obligations, securities or other property received in settlement of
accounts receivable (created in the ordinary course of business) from
bankrupt obligors; (iv) Investments existing as of the Closing Date and set
forth in Schedule 8.4, (v) Support Obligations permitted by Section 8.1;
------------
(vi) acquisitions permitted by Section 8.3(c)(ii); (vii) transactions
permitted by Section 8.5, (viii) loans to employees, directors or officers
in connection with the award of convertible bonds or stock under a stock
incentive plan, stock option plan or other equity-based compensation plan
or arrangement in the aggregate not to exceed $250,000 (calculated on the
exercise price for any such shares) in the aggregate at any time
outstanding; (ix) other advances or loans to employees, directors, officers
or agents not to exceed $500,000 in the aggregate at any time outstanding;
(x) advances or loans to customers or suppliers that do not exceed $100,000
in the aggregate at any one time outstanding, (xi) Investments by members
of the Consolidated Group in their Subsidiaries and Affiliates existing on
the Closing Date, (xii) Investments by members of the Consolidated Group in
and to another Credit Party, (xiii) Investments by any member of the
Consolidated Group in any new Foreign Subsidiary formed by such member of
the Consolidated Group, provided that the aggregate amount of all such
Investments during the term of this Credit Agreement shall not exceed
$500,000, and (xiv) other loans, advances and investments of a nature not
contemplated in the foregoing subsections in an amount not to exceed
$500,000 in the aggregate at any time outstanding.
"Permitted Liens" means:
---------------
(i) Liens in favor of the Agent on behalf of the Lenders;
(ii) Liens in favor of a Lender or an Affiliate of a Lender pursuant
to a Hedging Agreement permitted hereunder, but only (A) to the extent
such Liens secure obligations under such agreements permitted under
Section 8.1, (B) to the
16
extent such Liens are on the same collateral as to which the Lenders
also have a Lien and (C) if such provider and the Lender shall share
pari passu in the collateral subject to such Liens;
---- -----
(iii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or
Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to
any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
--------
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(v) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by the Borrower and its Subsidiaries in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(vi) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the judgments
--------
secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have
been discharged within 30 days after the expiration of any such stay;
(vii) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered Property for its intended
purposes;
(viii) Liens securing purchase money and sale/leaseback
Indebtedness (including Capital Leases) to the extent permitted under
Section 8.1(c), provided that any such Lien attaches only to the
--------
Property financed or leased and such Lien attaches thereto
concurrently with or within 90 days after the acquisition thereof in
17
connection with the purchase money transactions and within 30 days
after the closing of any sale/leaseback transaction;
(ix) leases or subleases granted to others not interfering in
any material respect with the business of any member of the
Consolidated Group;
(x) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Credit Agreement;
(xi) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(xii) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.4;
(xiii) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depository institutions;
(xiv) Liens existing as of the Closing Date and set forth on
Schedule 6.8; provided that (a) no such Lien shall at any time be
------------ --------
extended to or cover any Property other than the Property subject
thereto on the Closing Date and (b) the principal amount of the
Indebtedness secured by such Liens shall not be extended, renewed,
refunded or refinanced;
(xv) and Liens securing Indebtedness permitted pursuant to Section
8.1(h); provided that (a) no such Lien shall at any time be extended
to or cover any Property other than the Property acquired in
connection with such acquisition and (b) such Lien shall at all times
be subordinated to the Liens of the Agent securing the Credit Parties'
obligations hereunder pursuant to a subordination agreement in form
and substance satisfactory to the Agent; and
(xvi) Liens securing equipment Indebtedness assumed in accordance
with the terms of Section 8.1(i).
"Person" means any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
----
ERISA) which is covered by ERISA and with respect to which the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" within the meaning of Section 3(5) of ERISA.
18
"Pledge Agreement" means the Pledge Agreement dated as of the Closing
----------------
Date given by the Borrower and the other pledgors identified therein to the
Agent, to secure the obligations hereunder, as amended and modified.
"Preferred Stock" means the Preferred Stock of the Borrower, Series
---------------
1998, $.01 par value.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by NationsBank as its prime rate in effect at its
principal office in Charlotte, North Carolina, with each change in the
Prime Rate being effective on the date such change is publicly announced as
effective (it being understood and agreed that the Prime Rate is a
reference rate used by NationsBank in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on any
extension of credit by NationsBank to any debtor).
"Pro Forma Basis" means, with respect to any Transaction, that such
---------------
Transaction shall be deemed to have occurred as of the first day of the
four fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such Transaction with respect to which the Agent and
the Lenders have received the officer's certificate in accordance with the
provisions of Section 7.2(b). As used herein, "Transaction" means (i), any
corporate merger or consolidation as referred to in Section 8.3(a), (ii)
the incurrence of Indebtedness in accordance with Section 8.1(h), (i) and
(j), (iii) any sale or other disposition of assets as referred to in
Section 8.3(b), (iv) any acquisition of capital stock or securities or any
purchase, lease or other acquisition of property as referred to in Section
8.3(c) or (v) the making of any Restricted Payment as referred to in
Section 8.9.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Register" shall have the meaning assigned such term in Section
--------
11.3(c).
"Regulation T, U or X" means Regulation T, U or X, respectively, of
--------------------
the Board of Governors of the Federal Reserve System as from time to time
in effect and any successor to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
-------
emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment (including the abandonment or discarding of barrels,
containers and other closed receptacles containing any Materials of
Environmental Concern).
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
19
"Required Lenders" means, at any time, Lenders having more than sixty-
----------------
six and two-thirds percent (66 %) of the Commitments, or if the Commitments
have been terminated, Lenders having more than sixty-six and two-thirds
percent (66 %) of the aggregate principal amount of the Obligations
outstanding (taking into account in each case Participation Interests or
obligation to participate therein); provided that the Commitments of, and
--------
outstanding principal amount of Obligations (taking into account
Participation Interests therein) owing to, a Defaulting Lender shall be
excluded for purposes hereof in making a determination of Required Lenders.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or ordinance (including, without
limitation, Environmental Laws) or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer, the
-------------------
Controller and the Vice President of Financial Planning and Analysis.
"Restricted Payment" means (i) any dividend or other distribution,
------------------
direct or indirect, on account of any shares of any class of stock now or
hereafter outstanding, except (A) a dividend payable solely in shares of
that class to the holders of that class and (B) dividends and other
distributions payable to a Credit Party, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of stock now or hereafter
outstanding and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Revolving Lender,
--------------------
the commitment of such Revolving Lender to make Revolving Loans in an
aggregate principal amount at any time outstanding of up to such Revolving
Lender's Revolving Commitment Percentage of the Aggregate Revolving
Committed Amount as specified in Schedule 2.1(a), as such amount may be
---------------
reduced from time to time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means, for each Revolving Lender, a
-------------------------------
fraction (expressed as a decimal) the numerator of which is the Revolving
Commitment of such Revolving Lender at such time and the denominator of
which is the Aggregate Revolving Committed Amount at such time. The
initial Revolving Commitment Percentages are set out on Schedule 2.1(a).
---------------
"Revolving Committed Amount" means, collectively, the aggregate amount
--------------------------
of all of the Revolving Commitments and, individually, the amount of each
Revolving Lender's Revolving Commitment as specified in Schedule 2.1(a).
---------------
20
"Revolving Lenders" means Lenders holding Revolving Commitments, as
------------------
identified on Schedule 2.1(a), and their successors and assigns.
---------------
"Revolving Loans" shall have the meaning assigned to such term in
---------------
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of
-------------- ---------------
the Borrower in favor of each of the Revolving Lenders evidencing the
Revolving Loans and Swingline Loans in substantially the form attached as
Schedule 2.1(e), individually or collectively, as appropriate, as such
---------------
promissory notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time.
"Revolving Obligations" means, collectively, the Revolving Loans,
----------------------
Swingline Loans and LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
---
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Security Agreement" means the Security Agreement dated as of the
------------------
Closing Date given by the Borrower and the other grantors identified
therein to the Agent, to secure the obligations hereunder, as amended and
modified.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Sprint Agreement" means the agreement, effective January 1, 1997, by
----------------
and between the Borrower and Sprint/United Management Company, together
with contract orders related thereto.
"Subordinated Debt" means (i) the subordinated debt existing on the
-----------------
Closing Date as described on Schedule 8.1 and (ii) any other Indebtedness
------------
of a member of the Consolidated Group which by its terms is expressly
subordinated in right of payment to the prior payment of the obligations
under the Credit Agreement and the other Credit Documents on terms and
conditions (a) as set forth on Schedule 1.1 or (b) otherwise satisfactory
to the Agent and the Required Lenders.
"Subject Properties" shall have the meaning assigned to such term in
------------------
Section 6.16(a).
"Subsidiary" means, as to any Person, (a) any corporation more than
----------
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or
21
other entity in which such Person directly or indirectly through
Subsidiaries has more than 50% of the voting interests at any time. Unless
otherwise identified, "Subsidiary" or "Subsidiaries" shall mean
Subsidiaries of the Borrower.
"Support Obligations" means, with respect to any Person, without
-------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security
therefor, (ii) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The
amount of any Support Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Support Obligation is made.
"Swingline Commitment" means the commitment of the Swingline Lender to
--------------------
make Swingline Loans in an aggregate principal amount at any time
outstanding up to the Swingline Committed Amount and the commitment of the
Revolving Lenders to purchase participation interests in the Swingline
Loans up to their respective Revolving Commitment Percentage as provided in
Section 2.3(b)(iii), as such amounts may be reduced from time to time in
accordance with the provisions hereof.
"Swingline Committed Amount" means the amount of the Swingline
--------------------------
Lender's Commitment as specified in Section 2.3(a).
"Swingline Lender" means NationsBank.
----------------
"Swingline Loan" means a swingline revolving loan made by the
--------------
Swingline Lender pursuant to the provisions of Section 2.3.
"Term Lenders" means Lenders holding Term Loan Commitments, as
------------
identified on Schedule 2.1(a), and their successors and assigns.
"Term Loan" shall have the meaning assigned to such term in Section
---------
2.4(a).
"Term Loan Commitment" means, with respect to each Term Lender, the
--------------------
commitment of such Term Lender to make its portion of the Term Loan as
specified on Schedule 2.1(a) (and for purposes of making determinations of
---------------
Required Lenders hereunder
22
after the Closing Date and for purposes of calculations referred to in
Section 11.6(b), the principal amount outstanding on the Term Loan).
"Term Loan Commitment Percentage" means, for each Term Lender, a
-------------------------------
fraction (expressed as a percentage) the numerator of which is the amount
of the Term Loan Commitment (and after the Closing Date, the outstanding
principal amount of such Term Lender's Term Loan) of such Term Lender at
such time and the denominator of which is the aggregate amount of the Term
Loan Commitment (and after the Closing Date, the aggregate principal amount
of the Term Loan) at such time. The initial Term Loan Commitment
Percentages are set out on Schedule 2.1.
"Term Loan Committed Amount" means, collectively, the aggregate
--------------------------
amount of all of the Term Loan Commitments and, individually, the amount of
each Term Lender's Term Loan Commitment as specified on Schedule 2.1(a), as
such amounts may be reduced from time to time in accordance with the
provisions hereof.
"Term Note" or "Term Notes" means the promissory notes of the
--------- ----------
Borrower in favor of each of the Term Lenders evidencing the Term Loan in
substantially the form attached as Schedule 2.4(d), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended or renewed from time to time.
"Termination Date" means March 12, 2002.
----------------
"Voting Stock" means, with respect to any Person, capital stock issued
------------
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
"Year 2000 Problem" shall have the meaning assigned to such term in
-----------------
Section
6.17.
1.2 Computation of Time Periods.
---------------------------
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 Accounting Terms.
----------------
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 7.1 hereof (or, prior to the delivery of the first
23
financial statements pursuant to Section 7.1 hereof, consistent with the annual
audited financial statements referenced in Section 6.1(i) hereof); provided,
however, if (a) the Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the Agent or the
Required Lenders shall so object in writing within 30 days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made.
(b) It is further acknowledged and agreed that, except as expressly
provided otherwise, for purposes of determining the Applicable Percentage and
compliance with the financial covenants in Section 7.9 (and compliance therewith
on a Pro Forma Basis), in the case of acquisitions and dispositions which have
occurred during the applicable period to the extent permitted hereunder,
adjustments shall be made to take into account historical performance relating
thereto during such applicable period prior to the date of such acquisition or
disposition, and the effect of any Indebtedness paid with proceeds from a
disposition.
SECTION 2
CREDIT FACILITIES
-----------------
2.1 Revolving Loans.
---------------
(a) Revolving Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans (the "Revolving Loans") to the Borrower from time to time
---------------
in the amount of such Revolving Lender's Revolving Commitment Percentage of such
Revolving Loans for the purposes hereinafter set forth; provided that (i) with
--------
regard to the Revolving Lenders collectively, the aggregate principal amount of
Revolving Obligations outstanding at any time shall not exceed the Aggregate
Revolving Committed Amount, and (ii) with regard to each Revolving Lender
individually, such Revolving Lender's Revolving Commitment Percentage of
Obligations outstanding at any time shall not exceed such Revolving Lender's
Revolving Committed Amount. Revolving Loans may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
-------------------------
(i) Notice of Borrowing. The Borrower shall request a Revolving
-------------------
Loan borrowing by written notice (or telephone notice promptly confirmed in
writing) to the Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of the requested borrowing in
the case of Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of Eurodollar Loans. Each such
request for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day),
24
(C) the aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the Interest
Period(s) therefor. If the Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period in the case of a
Eurodollar Loan, then such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for a Base Rate Loan
hereunder. The Agent shall give notice to each Revolving Lender promptly
upon receipt of each Notice of Borrowing pursuant to this Section
2.1(b)(i), the contents thereof and each such Revolving Lender's share of
any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan that is a Eurodollar
---------------
Loan shall be in a minimum aggregate principal amount of $2,500,000 and
integral multiples of $500,000 in excess thereof. Each Revolving Loan that
is a Base Rate Loan shall be in a minimum aggregate principal amount of
$1,000,000 (or the remaining Revolving Committed Amount, if less) and
integral multiples of $100,000 in excess thereof.
(iii) Advances. Each Revolving Lender will make its
--------
Revolving Commitment Percentage of each Revolving Loan borrowing available
to the Agent for the account of the Borrower, or in such other manner as
the Agent may specify in writing, by 1:00 P.M. (Charlotte, North Carolina
time) on the date specified in the applicable Notice of Borrowing in
Dollars and in funds immediately available to the Agent. Such borrowing
will then be made available to the Borrower by the Agent by crediting the
account of the Borrower with the aggregate of the amounts made available to
the Agent by the Revolving Lenders and in like funds as received by the
Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
---------
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
--------
(i) Base Rate Loans. During such periods as Revolving Loans shall
---------------
be comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the Base Rate plus the
----
Applicable Percentage;
(ii) Eurodollar Loans. During such periods as Revolving Loans
----------------
shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the Eurodollar Rate
plus the Applicable Percentage.
----
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
---------------
executed Revolving Note in favor of each Revolving Lender.
25
(f) Maximum Number of Eurodollar Loans. The Borrower will be limited to a
----------------------------------
maximum number of ten (10) Eurodollar Loans outstanding at any time (including
both Revolving Loans and Term Loans). For purposes hereof, Eurodollar Loans
with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
2.2 Letter of Credit Subfacility.
----------------------------
(a) Issuance. During the Commitment Period, subject to the terms and
--------
conditions hereof and of the LOC Documents, if any, and such other terms and
conditions which the Issuing Lender may reasonably require, the Issuing Lender
shall issue, and the Revolving Lenders shall participate in, such Letters of
Credit as the Borrower may request for its own account or for the account of
another Credit Party as provided herein, in a form acceptable to the Issuing
Lender, for the purposes hereinafter set forth; provided that (i) the aggregate
--------
amount of LOC Obligations shall not exceed FIVE MILLION DOLLARS ($5,000,000) at
any time (the "LOC Committed Amount"), (ii) with regard to the Revolving Lenders
--------------------
collectively, the aggregate principal amount of Revolving Obligations
outstanding at any time shall not exceed the Aggregate Revolving Committed
Amount, and (iii) with regard to each Revolving Lender individually, such
Revolving Lender's Revolving Commitment Percentage of Revolving Obligations
outstanding at any time shall not exceed such Revolving Lender's Revolving
Commitment. Letters of Credit issued hereunder shall not have an original
expiry date more than one year from the date of issuance or extension, nor an
expiry date, whether as originally issued or by extension, extending beyond the
Termination Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance date of each Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
------------------
shall be submitted by the Borrower to the Issuing Lender at least three (3)
Business Days prior to the requested date of issuance (or such shorter period as
may be agreed by the Issuing Lender). A form of Notice of Request for Letter of
Credit is attached as Schedule 2.2(b). The Issuing Lender will provide to the
---------------
Agent at least monthly, and more frequently upon request, a detailed summary
report on its Letters of Credit and the activity thereon, in form and substance
acceptable to the Agent. In addition, the Issuing Lender will provide to the
Agent for dissemination to the Revolving Lenders at least quarterly, and more
frequently upon request, a detailed summary report on its Letters of Credit and
the activity thereon, including, among other things, the Credit Party for whose
account the Letter of Credit is issued, the beneficiary, the face amount, and
the expiry date. The Issuing Lender will provide copies of the Letters of
Credit to the Agent and the Revolving Lenders promptly upon request.
(c) Participation. Each Revolving Lender, upon issuance of a Letter of
-------------
Credit, shall be deemed to have purchased without recourse a risk participation
from the applicable Issuing Lender in such Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Revolving Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such
26
Letter of Credit. Without limiting the scope and nature of each Revolving
Lender's participation in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed as required hereunder or under any such Letter of
Credit, each such Revolving Lender shall pay to the Issuing Lender its pro rata
share of such unreimbursed drawing in same day funds on the day of notification
by the Issuing Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Revolving Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be affected
by the occurrence of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Lender will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to otherwise
reimburse the Issuing Lender for such drawing, the Borrower shall be deemed to
have requested that the Revolving Lenders make a Revolving Loan in the amount of
the drawing as provided in subsection (e) hereof on the related Letter of
Credit, the proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the Issuing Lender on the day
of drawing under any Letter of Credit (either with the proceeds of a Revolving
Loan obtained hereunder or otherwise) in same day funds. If the Borrower shall
fail to reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to the Base
Rate plus the sum of (i) the Applicable Percentage and (ii) two percent (2%).
The Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify the other Revolving
Lenders of the amount of any unreimbursed drawing and each Revolving Lender
shall promptly pay to the Agent for the account of the Issuing Lender in Dollars
and in immediately available funds, the amount of such Revolving Lender's pro
rata share of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Revolving Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M. (Charlotte, North Carolina time)
otherwise such payment shall be made at or before 12:00 Noon (Charlotte, North
Carolina time) on the Business Day next succeeding the day such notice is
received. If such Revolving Lender does not pay such amount to the Issuing
Lender in full upon such request, such Revolving Lender shall, on demand, pay to
the Agent for the account of the Issuing Lender interest on the unpaid amount
during the period from the date of such drawing until such Revolving Lender pays
such amount to the Issuing Lender in full at a rate per annum equal to, if paid
within two (2) Business Days of the date that such Revolving Lender is required
to make payments of such amount pursuant to the preceding sentence, the Federal
Funds Rate and thereafter at a rate equal to the Base Rate. Each Revolving
Lender's obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the existence
of a Default or Event of Default or the
27
acceleration of the obligations of the Borrower hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Revolving Lender to the
Issuing Lender, such Revolving Lender shall, automatically and without any
further action on the part of the Issuing Lender or such Revolving Lender,
acquire a participation in an amount equal to such payment (excluding the
portion of such payment constituting interest owing to the Issuing Lender) in
the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Agent shall give notice to the
Revolving Lenders that a Revolving Loan has been requested or deemed requested
by the Borrower to be made in connection with a drawing under a Letter of
Credit, in which case a Revolving Loan advance comprised of Base Rate Loans (or
Eurodollar Loans to the extent the Borrower has complied with the procedures of
Section 2.1(b)(i) with respect thereto) shall be immediately made to the
Borrower by all Revolving Lenders (notwithstanding any termination of the
Commitments pursuant to Section 9.2) pro rata based on the respective Revolving
--- ----
Commitment Percentages of the Revolving Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2) and the proceeds
thereof shall be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each such Revolving Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan immediately upon
any such request or deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of such
---------------
borrowing may not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in Section
5.2 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for Revolving Loan
to be made by the time otherwise required hereunder, (v) whether the date of
such borrowing is a date on which Revolving Loans are otherwise permitted to be
made hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the event
that any Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower or any
Credit Party), then each such Revolving Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Issuing Lender such participation in the
outstanding LOC Obligations as shall be necessary to cause each such Revolving
Lender to share in such LOC Obligations ratably (based upon the respective
Commitment Percentages of the Revolving Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2)), provided that
--------
in the event such payment is not made on the day of drawing, such Revolving
Lender shall pay in addition to the Issuing Lender interest on the amount of its
unfunded Participation Interest at a rate equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Rate, and thereafter at
the Base Rate.
28
(f) Designation of other Credit Parties as Account Parties.
------------------------------------------------------
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a) hereof, a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Credit Party, provided that notwithstanding such
statement, the Borrower shall be the actual account party for all purposes of
this Credit Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the Letters
-----------------------------
of Credit be subject to The Uniform Customs and Practice for Documentary Credits
(the "UCP") or the International Standby Practices 1998 (the "ISP98"), each as
--- -----
published as of the date of issue by the International Chamber of Commerce, in
which case the UCP or the ISP98, as appropriate, may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
(i) In addition to its other obligations under this Section 2.2, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
----------------
(ii) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Lender shall not be responsible:
(A) for the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any consequences
arising from causes beyond the control of the Issuing Lender, including,
without limitation, any
29
Government Acts. None of the above shall affect, impair, or prevent the vesting
of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and indemnify the
Issuing Lender against any and all risks involved in the issuance of the
Letters of Credit, all of which risks are hereby assumed by the Borrower
(on behalf of itself and each of the other Credit Parties), including,
without limitation, any and all Government Acts. The Issuing Lender shall
not, in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing
Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (i) shall
survive the termination of this Credit Agreement. No act or omissions of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
(A) arising solely out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction, or (B)
caused by the Issuing Lender's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation,
court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and agreed
--------------------------------
that the obligations of the Issuing Lender hereunder to the Lenders are only
those expressly set forth in this Credit Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section
5.2 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
-------- -------
set forth in this Section 2.2 shall be deemed to prejudice the right of any
Lender to recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.2 in the event that it
is determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
30
(k) Conflict with LOC Documents. In the event of any conflict between
---------------------------
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.3 Swingline Loan Subfacility.
--------------------------
(a) Swingline Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans requested by the
Borrower in Dollars to the Borrower (each a "Swingline Loan" and,
--------------
collectively, the "Swingline Loans") for the purposes hereinafter set
---------------
forth; provided, however, (i) the aggregate principal amount of Swingline
-------- -------
Loans outstanding at any time shall not exceed FIVE MILLION DOLLARS
($5,000,000) (the "Swingline Committed Amount"), and (ii) with regard to
--------------------------
the Revolving Lenders collectively, the aggregate principal amount of
Revolving Obligations outstanding at any time shall not exceed the
Aggregate Revolving Committed Amount. Swingline Loans hereunder shall be
made as Base Rate Loans, and may be repaid or reborrowed in accordance with
the provisions hereof.
(b) Swingline Loan Advances.
-----------------------
(i) Notices; Disbursement. Whenever the Borrower desires
---------------------
a Swingline Loan advance hereunder it shall give written notice (or
telephonic notice promptly confirmed in writing) to the Swingline Lender
not later than 11:00 A.M. (Charlotte, North Carolina time) on the Business
Day of the requested Swingline Loan advance. Each such notice shall be
irrevocable and shall specify (A) that a Swingline Loan advance is
requested, (B) the date of the requested Swingline Loan advance (which
shall be a Business Day) and (C) the principal amount of and Interest
Period for the Swingline Loan advance requested. Each Swingline Loan shall
have such maturity date as the Swingline Lender and the Borrower shall
agree upon receipt by the Swingline Lender of any such notice from the
Borrower. The Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by 3:00 P.M.
(Charlotte, North Carolina time) on the Business Day of the requested
borrowing. Notwithstanding the foregoing provisions of this subsection (i),
the Borrower and the Swingline Lender may from time to time agree to make
Swingline Loan advances pursuant to an "auto-borrow" and "zero-balance" or
other similar arrangement, subject however to the conditions and
limitations relating to the Swingline Loans set out herein.
(ii) Minimum Amounts. Each Swingline Loan advance shall
be in a minimum principal amount of $50,000 and in integral multiples of
$50,000 in excess thereof (or the remaining amount of the Swingline
Committed Amount, if less); provided that in the event that an "auto-
borrow" and "zero balance" or other similar arrangement shall then be in
place with the Swingline Lender, such minimum amounts, if any, provided by
--------
such agreement.
(iii) Repayment of Swingline Loans. The principal amount of
----------------------------
all Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the
31
Swingline Lender and the Borrower with respect to such Loan (which maturity
date shall not be a date more than thirty (30) Business Days from the date
of advance thereof) or (B) the Termination Date. The Swingline Lender may,
at any time, in its sole discretion, by written notice to the Borrower and
the Revolving Lenders, demand repayment of its Swingline Loans by way of a
Revolving Loan advance, in which case the Borrower shall be deemed to have
requested a Revolving Loan advance comprised solely of Base Rate Loans in
the amount of such Swingline Loans; provided, however, that any such demand
-------- -------
shall be deemed to have been given one Business Day prior to the
Termination Date and on the date of the occurrence of any Event of Default
described in Section 9.1 and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the provisions of
Section 9.2. Each Revolving Lender hereby irrevocably agrees to make its
pro rata share of each such Revolving Loan in the amount, in the manner and
on the date specified in the preceding sentence notwithstanding (I) the
---------------
amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 5.2 are then satisfied, (III) whether a
Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such borrowing is a
date on which Revolving Loans are otherwise permitted to be made hereunder
or (VI) any termination of the Commitments relating thereto immediately
prior to or contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower or any
other Credit Party), then each Revolving Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Swingline Lender such
Participation Interests in the outstanding Swingline Loans as shall be
necessary to cause each such Revolving Lender to share in such Swingline
Loans ratably based upon its Revolving Commitment Percentage of the
Revolving Committed Amount (determined before giving effect to any
termination of the Commitments pursuant to Section 3.4), provided that (A)
--------
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective Participation
Interest is funded and (B) at the time any purchase of Participation
Interests pursuant to this sentence is actually made, the purchasing
Revolving Lender shall be required to pay to the Swingline Lender, to the
extent not paid to the Swingline Lender by the Borrower in accordance with
the terms of subsection (c) below, interest on the principal amount of
Participation Interests purchased for each day from and including the day
upon which such borrowing would otherwise have occurred to but excluding
the date of payment for such Participation Interests, at the rate equal to
the Federal Funds Rate.
(c) Interest on Swingline Loans.
---------------------------
Subject to the provisions of Section 3.1, each Swingline Loan shall bear
interest at a per annum rate equal to the Base Rate. Interest on Swingline Loans
shall be payable in arrears on each applicable Interest Payment Date.
32
(d) Swingline Note. The Swingline Loans shall be evidenced by the
--------------
Revolving Note.
2.4 Term Loan.
---------
(a) Term Loan Commitment. Subject to the terms and conditions hereof,
each Term Lender severally agrees to make its Term Loan Commitment Percentage of
a term loan (the "Term Loan") in the aggregate principal amount of TWENTY-FIVE
---------
MILLION DOLLARS ($25,000,000) to the Borrower on the Closing Date for the
purposes hereinafter set forth. The Term Loan may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request. Amounts
repaid on the Term Loan may not be reborrowed.
(b) Term Loan Borrowing. The Borrower shall submit an appropriate Notice
-------------------
of Borrowing relating to the Term Loan not later than 11:00 A.M. (Charlotte,
North Carolina time) on the Closing Date, with respect to the portion of the
Term Loan initially consisting of a Base Rate Loan, or on the third Business Day
prior to the Closing Date, with respect to the portion of the Term Loan
initially consisting of one or more Eurodollar Loans, which Notice of Borrowing
shall be irrevocable and shall specify (i) that the funding of the Term Loan is
requested, and (ii) whether the funding of the Term Loan shall be comprised of
Base Rate Loans, Eurodollar Loans or combination thereof, and if Eurodollar
Loans are requested, the Interest Period(s) therefor. If the Borrower shall fail
to deliver such Notice of Borrowing to the Agent by 11:00 A.M. (Charlotte, North
Carolina time) on the third Business Day prior to the Closing Date, then the
full amount of the Term Loan shall be initially comprised of Base Rate Loans.
Each Term Lender shall make its Term Loan Commitment Percentage of the Term Loan
available to the Agent for the account of the Borrower, or in such other manner
as the Agent may specify in writing, by 1:00 P.M. (Charlotte, North Carolina
time) on the Closing Date in Dollars and in funds immediately available to the
Agent.
(c) Minimum Amounts. The portion of the Term Loan that is composed of
---------------
Eurodollar Loans shall be in a minimum aggregate principal amount of $2,500,000
and integral multiples of $500,000 in excess thereof. The portion of the Term
Loan that is composed of Base Rate Loans shall be in a minimum aggregate
principal amount of $1,000,000 (or the remaining portion of the Term Loan, if
less) and integral multiples of $100,000 in excess thereof.
(d) Repayment. The aggregate principal amount of the Term Loan shall be
---------
repaid in twelve (12) consecutive quarterly installments as follows:
Date Installment
---- -----------
June 30, 1999 $0
September 30, 1999 $0
December 31, 1999 $0
March 31, 2000 $0
June 30, 2000 $2,000,000
September 30, 2000 $2,000,000
December 31, 2000 $2,000,000
33
March 31, 2001 $2,000,000
June 30, 2001 $2,000,000
September 30, 2001 $2,000,000
December 31, 2001 $3,000,000
March 12, 2002 $10,000,000
-----------
Total $25,000,000
The foregoing amortization payments are subject to reduction as provided in
Section 3.3(b).
(e) Interest. Subject to the provisions of Section 3.1,
--------
(i) Base Rate Loans. During such periods as the Term Loan shall
---------------
be comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the sum of the Base Rate
plus the Applicable Percentage; and
----
(ii) Eurodollar Loans. During such periods as the Term Loan shall
----------------
be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans
shall bear interest at a per annum rate equal to the sum of the Eurodollar
Rate plus the Applicable Percentage.
----
Interest on the Term Loan shall be payable in arrears on each applicable
Interest Payment Date (or at such other time as may be specified herein).
(f) Term Notes. The Term Loan shall be evidenced by a duly executed Term
----------
Note in favor of each Term Lender.
(g) Maximum Number of Eurodollar Loans. The Borrower will be limited to a
----------------------------------
maximum number of ten (10) Eurodollar Loans outstanding at any time (including
both Term Loans and Revolving Loans). For purposes hereof, Eurodollar Loans
with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
----------------------------------------------
3.1 Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Base Rate).
34
3.2 Extension and Conversion.
------------------------
Subject to the terms of Section 5.2, the Borrower shall have the option, on
any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate type;
provided, however, that (i) except as provided in Section 3.8, Eurodollar Loans
-------- -------
may be converted into Base Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate
Loans may be converted into Eurodollar Loans, only if no Default or Event of
Default is in existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of "Interest Period" set forth in Section 1.1 and shall be in
---------------
such minimum amounts as provided in, with respect to Revolving Loans, Section
2.1(b)(ii) and, with respect to Term Loan, Section 2.4(c), and (iv) any request
for extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on
the Business Day of, in the case of the conversion of a Eurodollar Loan into a
Base Rate Loan, and on the third Business Day prior to, in the case of the
extension of a Eurodollar Loan as, or conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the proposed extension or conversion, specifying
the date of the proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in Section
5.2. In the event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion affecting
any Loan.
3.3 Prepayments.
-----------
(a) Voluntary Prepayments. The Loans may be repaid in whole or in part
---------------------
without premium or fee; provided that (i) Eurodollar Loans may be prepaid only
--------
upon three (3) Business Days' prior written notice to the Agent and must be
accompanied by payment of any amounts owing under Section 3.11, and (ii) partial
prepayments shall be (A) in the case of Eurodollar Loans, in a minimum principal
amount of $2,500,000 and integral multiples of $250,000 in excess thereof, (B)
in the case of Base Rate Loans, in a minimum principal amount of $1,000,000 and
integral multiples of $100,000 in excess thereof and (C) in the case of
Swingline Loans, in a minimum aggregate principal amount of $50,000 and integral
multiples of $50,000 in excess thereof, provided that in the event that an
--------
"auto-borrow" and "zero-balance" or other similar arrangement shall then be in
place with the Swingline Lender, prepayments shall be in such minimum amounts,
if any, provided by such agreement.
(b) Mandatory Prepayments.
---------------------
35
(i) Revolving Committed Amount. If at any time, (i) the aggregate
--------------------------
principal amount of Revolving Obligations shall exceed the Aggregate
Revolving Committed Amount, (ii) the aggregate amount of LOC Obligations
shall exceed the LOC Committed Amount or (iii) the aggregate amount of
Swingline Loans shall exceed the Swingline Committed Amount, the Borrower
shall immediately make payment on the Revolving Loans and/or to a cash
collateral account in respect of the LOC Obligations, in an amount
sufficient to eliminate the deficiency.
(ii) Equity Transactions. Until the Term Loan has been repaid in
-------------------
full, the Term Loan shall be prepaid as hereafter provided in an amount
equal to one hundred percent (100%) of the Net Proceeds received from any
Equity Transaction; provided, however, so long as the Preferred Stock
remains outstanding and no Default or Event of Default exists hereunder the
Borrower shall be permitted to apply up to 20% of the Net Proceeds of any
public offering of the Borrower's common stock to redeem shares of the
Preferred Stock.
(c) Application. Mandatory prepayments made pursuant to Section 3.3(b)(ii)
-----------
shall be applied to the Term Loan and shall be applied to principal installments
due with respect to the Term Loan in the inverse order of principal installment
maturity. Mandatory and voluntary prepayments on Revolving Obligations shall be
applied first to Swingline Loans, then to Revolving Loans which are Base Rate
Loans, then to Revolving Loans which are Eurodollar Loans in direct order of
Interest Period maturities and then to a cash collateral account to secure LOC
Obligations. Voluntary prepayments on the Term Loan shall be applied to, and
serve to reduce, the remaining principal amortization installments ratably.
Amounts prepaid on the Revolving Obligations may be reborrowed in accordance
with the provisions hereof. Amounts prepaid on the Term Loan may not be
reborrowed.
3.4 Termination and Reduction of Commitments
----------------------------------------
(a) Reductions. The Aggregate Revolving Committed Amount may be terminated
----------
or permanently reduced in whole or in part upon three (3) Business Days' prior
written notice to the Agent, provided that (i) after giving effect to any
--------
voluntary reduction the aggregate amount of Revolving Obligations shall not
exceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
reductions shall be in a minimum principal amount of $5,000,000, and in integral
multiples of $1,000,000 in excess thereof.
(b) Termination of Commitments. The Commitments hereunder shall terminate
--------------------------
on the Termination Date.
3.5 Fees.
----
(a) Commitment Fee. In consideration of the Revolving Commitments
--------------
hereunder, the Borrower agrees to pay to the Agent for the ratable benefit of
the Revolving Lenders a commitment fee (the "Commitment Fee") equal to the
--------------
Applicable Percentage per annum on the
36
average daily unused amount of the Revolving Committed Amount for the applicable
period. The Commitment Fee shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the immediately preceding
quarter (or portion thereof) beginning with the first such date to occur after
the Closing Date. For purposes of computation of the Commitment Fee, Swingline
Loans shall not be counted toward or considered usage under the Revolving
Committed Amount.
(b) Letter of Credit Fees.
---------------------
(i) Letter of Credit Fee. In consideration of the LOC Commitment
--------------------
hereunder, the Borrower agrees to pay to the Agent for the ratable benefit
of the Revolving Lenders a fee (the "Letter of Credit Fee") equal to the
--------------------
Applicable Percentage per annum on the average daily maximum amount
available to be drawn under Letters of Credit from the date of issuance to
the date of expiration. The Letter of Credit Fee shall be payable
quarterly in arrears on the 15th day following the last day of each
calendar quarter for the immediately preceding quarter (or portion thereof)
beginning with the first such date to occur after the Closing Date.
(ii) Issuing Lender Fee. In addition to the Letter of Credit Fee,
------------------
the Borrower agrees to pay to the Issuing Lender for its own account
without sharing by the other Lenders (A) such fronting and negotiation fees
as may be mutually agreed upon by the Issuing Lender and the Borrower from
time to time and (B) customary charges of the Issuing Lender with respect
to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit (collectively,
the "Issuing Lender Fees").
-------------------
(c) Agent's Fees. The Borrower agrees to pay to the Agent, for its
------------
own account, an annual administrative fee and such other fees, if any, referred
to in the Agent's Fee Letter (collectively, the "Agent's Fees").
------------
3.6 Capital Adequacy.
----------------
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower and the Agent, the Borrower shall
be obligated to pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction. Each
37
determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 Inability To Determine Interest Rate.
------------------------------------
If prior to the first day of any Interest Period, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, the Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable thereafter (which
notice shall be withdrawn the Agent whenever such circumstances no longer
exist). If such notice is given (a) any Eurodollar Loans requested to be made
on the first day of such Interest Period shall be made as Base Rate Loans and
(b) any Loans that were to have been converted on the first day of such Interest
Period to or continued as Eurodollar Loans shall be converted to or continued as
Base Rate Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Base Rate Loans to Eurodollar Loans.
3.8 Illegality.
----------
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Agent (which notice shall be withdrawn by such Lender whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.11.
3.9 Requirements of Law.
-------------------
If, after the date hereof, the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof applicable to any Lender,
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in each
case made subsequent to the Closing Date (or, if later, the date on which such
Lender becomes a Lender):
38
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for (i) Non-Excluded
Taxes covered by Section 3.10 (including Non-Excluded Taxes imposed solely
by reason of any failure of such Lender to comply with its obligations
under Section 3.10(b)) and (ii) changes in taxes measured by or imposed
upon the overall net income, or franchise tax (imposed in lieu of such net
income tax), of such Lender or its applicable lending office, branch, or
any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Agent, in accordance herewith, the Borrower shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable,
provided that, in any such case, the Borrower may elect to convert the
--------
Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving the
Agent at least one Business Day's notice of such election, in which case the
Borrower shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.11. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the Borrower, through the
Agent, certifying (x) that one of the events described in this paragraph (a) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.10 Taxes.
-----
(a) Except as provided below in this subsection, all payments made by the
Borrower under this Credit Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
39
collected, withheld or assessed by any court, or governmental body, agency or
other official, excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any branch or
affiliate thereof, and all franchise taxes, branch taxes, taxes on doing
business or taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes, imposed: (i) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or affiliate is
organized or is located, or in which its principal executive office is located,
or any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received payment
under or enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-
Excluded Taxes") are required to be withheld from any amounts payable to the
Agent or any Lender hereunder or under any Notes, (A) the amounts so payable to
the Agent or such Lender shall be increased to the extent necessary to yield to
the Agent or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however, that the
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Lender that is
not organized under the laws of the United States of America or a state thereof
if such Lender fails to comply with the requirements of paragraph (b) of this
subsection whenever any Non-Excluded Taxes are payable by the Borrower, and (B)
as promptly as possible thereafter the Borrower shall send to the Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by the Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the Borrower under this
Credit Agreement or Notes to such Lender, deliver to the Borrower and the
Agent (A) two (2) duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case may
be, certifying that it is entitled to receive payments under this Credit
Agreement and any Notes without deduction or withholding of any United
States federal income taxes and (B) an Internal Revenue Service Form W-8 or
W-9, or successor applicable form, as the case may be, certifying that it
is entitled to an exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two (2) further copies of
any such form or certification on or before the date that any such form or
certification expires or
40
becomes obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent
to the Borrower (for the benefit of the Borrower and the Agent) that it is
not a bank within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (ii) agree to furnish to the Borrower on or before the date
of any payment by the Borrower, with a copy to the Agent two (2) accurate
and complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal entitlement
at the date of such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Internal Revenue Code with
respect to payments to be made under this Credit Agreement and any Notes
(and to deliver to the Borrower and the Agent two (2) further copies of
such form on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time reasonably
requested by the Borrower or the Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments under this
Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender or a participant
of a Lender pursuant to Section 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
--------
participant of a Lender the obligations of such participant of a Lender pursuant
to this subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.11 Indemnity.
---------
The Borrower promises to defend, indemnify and hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (other than
through such Lender's gross negligence or willful misconduct) as a consequence
of (a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a
41
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. With respect to Eurodollar Loans, such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Percentage included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
which would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. The covenants of the Borrower set forth in this Section 3.11 shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.12 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan, each payment or prepayment of principal of
-----
any Revolving Loan (other than outstanding Swingline Loans) or reimbursement
obligations arising from drawings under Letters of Credit, each payment of
interest on the Revolving Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Commitment Fees, each payment
of the Letter of Credit Fee, each reduction of the Revolving Committed Amount
and each conversion or extension of any Revolving Loan (other than Swingline
Loans), shall be allocated pro rata among the Revolving Lenders in accordance
with the respective Revolving Commitment Percentages. With respect to the Term
Loan, each payment or prepayment of principal on the Term Loan, each payment of
interest thereon, and each conversion or extension of any Loan comprising the
Term Loan, shall be allocated pro rata among the Term Lenders in accordance with
the respective principal amounts of their respective Term Loan Commitment
Percentages.
(b) Advances. No Lender shall be responsible for the failure or delay by
--------
any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
-------- -------
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would
constitute its ratable share of such borrowing available to the Agent, the Agent
may assume that such Lender is making such amount available to the Agent, and
the Agent may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. If such amount is not made available to the Agent by
such Lender within the time period specified therefor hereunder, such Lender
shall pay to the Agent, on demand, such amount with interest thereon at a rate
equal to the Federal Funds Rate for a period of two (2) Business Days, and
thereafter at the Base Rate, for the period until such Lender makes such amount
immediately available to the Agent. If such Lender does not pay such amounts to
the Agent forthwith upon demand, the Agent may notify the Borrower and request
the Borrower to immediately pay such amount to the Agent with interest at the
Base Rate. A certificate
42
of the Agent submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
3.13 Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Loans, LOC Obligations and other obligations in
such amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by
such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise be
restored, each Lender which shall have shared the benefit of such payment shall,
by repurchase of a participation theretofore sold, return its share of that
benefit (together with its share of any accrued interest payable with respect
thereto) to each Lender whose payment shall have been rescinded or otherwise
restored. The Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including setoff, banker's lien or counterclaim, with respect to
such participation as fully as if such Lender were a holder of such Loan, LOC
Obligations or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or the
Agent shall fail to remit to the Agent or any other Lender an amount payable by
such Lender or the Agent to the Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Agent or such other Lender at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 3.13 applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders under this Section 3.13 to
share in the benefits of any recovery on such secured claim.
3.14 Payments, Computations, Etc.
----------------------------
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in Dollars in immediately available funds,
without setoff, deduction, counterclaim or withholding of any kind, at the
Agent's office specified in Section 11.1 not later than 2:00 P.M. (Charlotte,
North Carolina time) on the date when due. Payments received after such time
shall be deemed to have been received on the next succeeding Business Day. The
Agent may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice
43
to the Borrower). The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Lenders in such manner as the Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 3.12(a)). The Agent will distribute such
payments to such Lenders, if any such payment is received prior to 2:00 P.M.
(Charlotte, North Carolina time) on a Business Day in like funds as received
prior to the end of such Business Day and otherwise the Agent will distribute
such payment to such Lenders on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day. Except as expressly provided
otherwise herein, all computations of interest and fees shall be made on the
basis of the actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Base Rate Loans and Swingline Loans which
(unless the Base Rate is determined by reference to the Federal Funds Rate)
shall be calculated based on a year of 365 or 366 days, as appropriate. Interest
shall accrue from and include the date of borrowing, but exclude the date of
payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
---------------------------------------------
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Agent or any Lender on account of the Obligations or any other
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Agent in connection with enforcing the rights of the Lenders under the
Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of each
of the Lenders in connection with enforcing its rights under the Credit
Documents or otherwise with respect to the Obligations owing to such
Lender;
FOURTH, to the payment of all accrued interest and fees on or in
respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of the
Obligations (including the payment or cash collateralization of the
outstanding LOC Obligations);
44
SIXTH, to all other Obligations and other obligations which shall have
become due and payable under the Credit Documents or otherwise and not
repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Obligations held by such Lender bears to the aggregate then outstanding
Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that any amounts
available for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Agent in a cash collateral account and applied (A) first,
to reimburse the Issuing Lender for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FIFTH" and "SIXTH" above in the
manner provided in this Section 3.14(b).
3.15 Evidence of Debt.
----------------
(a) Each Lender shall maintain an account or accounts evidencing each Loan
made by such Lender to the Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Credit Agreement. Each Lender will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.3(c)
hereof, and a subaccount for each Lender, in which Register and subaccounts
(taken together) shall be recorded (i) the amount, type and Interest Period of
each such Loan hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from or for the account of the
Borrower and each Lender's share thereof. The Agent will make reasonable
efforts to maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.15 (and, if consistent with the
entries of the Agent, subsection (a)) shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
-------- -------
such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
the Loans made by such Lender in accordance with the terms hereof.
45
SECTION 4
GUARANTY
---------
4.1 The Guarantee.
-------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, to each Affiliate of a Lender that enters into a Hedging Agreement and
to the Agent as hereinafter provided the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.2 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.1 hereof are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed
that, to the fullest extent permitted by law, the
46
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be waived or any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any Lender or
Lenders as security for any of the Guaranteed Obligations shall fail to
attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
4.3 Reinstatement.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
47
4.4 Certain Additional Waivers.
--------------------------
Without limiting the generality of the provisions of this Section 4, each
Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. (S)(S) 26-7
through 26-9, inclusive. Each Guarantor further agrees that such Guarantor
shall have no right of recourse to security for the Guaranteed Obligations,
except through the exercise of the rights of subrogation pursuant to Section
4.2.
4.5 Remedies.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed Obligations
being deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of said Section 4.1.
4.6 Rights of Contribution.
----------------------
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
------------------------
arising under the other provisions of this Section 4 (hereafter, the "Guarantied
----------
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
-----------
Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
--------------
respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
--------------
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including
48
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of the Borrower and the Guarantors hereunder) of the Borrower
and all of the Guarantors, all as of the Closing Date (if any Guarantor becomes
a party hereto subsequent to the Closing Date, then for the purposes of this
Section 4.6 such subsequent Guarantor shall be deemed to have been a Guarantor
as of the Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor shall be
deemed true as of the Closing Date).
4.7 Continuing Guarantee.
--------------------
The guarantee in this Section 4 is a continuing guarantee, and shall apply
to all Guaranteed Obligations whenever arising.
SECTION 5
CONDITIONS
----------
5.1 Conditions to Closing.
---------------------
This Credit Agreement shall become effective, and the initial Extensions of
Credit may be made, upon the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt by the
--------------------------------------------------
Agent of (i) multiple counterparts of this Credit Agreement, (ii) a Revolving
Note for each Revolving Lender, (iii) a Term Note for each Term Lender, (iv)
multiple counterparts of the Pledge Agreement, the Security Agreement and the
Mortgages, and (iv) UCC financing statements relating to the Pledge Agreement,
Security Agreement and the Mortgages, if any, in each case executed by a duly
authorized officer of each party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt of multiple counterparts of opinions of
--------------
counsel for the Credit Parties relating to the Credit Documents and the
transactions contemplated herein, in form and substance satisfactory to the
Agent.
(c) Financial Information. Receipt of financial information regarding the
---------------------
Borrower and its Subsidiaries, as may be requested by, and in each case in form
and substance satisfactory to the Agent and the Lenders.
(d) Year 2000 Problem. Receipt of evidence satisfactory to the Agent that
-----------------
the (i) Credit Parties and their Subsidiaries are taking all necessary and
appropriate steps to ascertain the extent of, and to quantify and successfully
address, business and financial risks facing the Credit Parties and Subsidiaries
as a result of what is commonly referred to as the Year 2000 Problem, and (ii)
the Credit Parties' and their Subsidiaries' material computer applications will,
on a timely basis, adequately address the Year 2000 Problem in all material
respects.
49
(e) Uniform Commercial Code Searches. Searches of Uniform Commercial Code
--------------------------------
filings in the jurisdiction of the chief executive office of each Credit Party
and each jurisdiction where any Collateral is located or where a filing would
need to be made in order to perfect the Agent's security interest in the
Collateral and copies of the financing statements on file in such jurisdictions
and evidence that no Liens exists other than Permitted Liens.
(f) Absence of Legal Proceedings. The absence of any action, suit,
----------------------------
investigation or proceeding pending in any court or before any arbitrator or
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect.
(g) Corporate Documents. Receipt of the following (or their equivalent)
-------------------
for each of the Credit Parties:
(i) Articles of Incorporation. Copies of the articles of
-------------------------
incorporation or charter documents certified to be true and complete as of
a recent date by the appropriate Governmental Authority of the state of its
incorporation.
(ii) Resolutions. Copies of resolutions of the Board of Directors
-----------
approving and adopting the respective Credit Documents, the transactions
contemplated therein and authorizing execution and delivery thereof,
certified by a secretary or assistant secretary as of the Closing Date to
be true and correct and in force and effect as of such date.
(iii) Bylaws. Copies of the bylaws certified by a secretary or
------
assistant secretary as of the Closing Date to be true and correct and in
force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of (A) certificates
-------------
of good standing, existence or its equivalent certified as of a recent date
by the appropriate Governmental Authorities of the state of incorporation
and each other state in which the failure to so qualify and be in good
standing would have a material adverse effect on the business or operations
in such state and (B) a certificate indicating payment of all corporate
franchise taxes and filing of annual reports certified as of a recent date
by the appropriate governmental taxing authorities.
(v) Officer's Certificate. An officer's certificate for each of the
---------------------
Credit Parties dated as of the Closing Date substantially in the form of
Schedule 5.1(g)(v) with appropriate insertions and attachments.
(h) Fees. Receipt of all fees, if any, owing pursuant to the Agents' Fee
----
Letter, Section 3.5 or otherwise.
(i) Subsection 5.2 Conditions. The conditions specified in Section 5.2
-------------------------
shall be satisfied.
50
(j) Additional Matters. All other documents and legal matters in
------------------
connection with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agent.
5.2 Conditions to All Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and Warranties. The representations and warranties
------------------------------
made by the Credit Parties herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default shall
------------------------------
have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this Credit Agreement.
(c) Involuntary Bankruptcy or Insolvency. There shall not have been
------------------------------------
commenced against any of the Credit Parties an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and shall remain undismissed,
undischarged or unbonded.
(d) No Material Adverse Effect. No circumstances, events or conditions
--------------------------
shall have occurred since September 30, 1998 which would have a Material Adverse
Effect.
(e) Additional Conditions to Revolving Loans. If a Revolving Loan is made
----------------------------------------
pursuant to Section 2.1, all conditions set forth therein shall have been
satisfied.
(f) Additional Conditions to Letters of Credit. If a Letter of Credit is
------------------------------------------
issued pursuant to Section 2.2, all conditions set forth therein shall have been
satisfied.
(g) Additional Conditions to Swingline Loans. If a Swingline Loan is made
----------------------------------------
pursuant to Section 2.3, all conditions set forth therein shall have been
satisfied.
(h) Additional Conditions to Term Loans. If a Term Loan is made pursuant
-----------------------------------
to Section 2.4, all conditions set forth therein shall have been satisfied.
Each request for an Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions)
51
shall be deemed to constitute a representation and warranty by the Borrower as
of the date of such Extension of Credit that the applicable conditions in
paragraphs (a), (b), (c) and (d), and in (e), (f), (g) or (h) of this subsection
have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Lenders to enter into this Credit Agreement and to make
Extensions of Credit herein provided for, each of the Credit Parties hereby
represents and warrants to the Agent and to each Lender that:
6.1 Financial Condition.
-------------------
Each of the financial statements described below (copies of which have
heretofore been provided to the Agent for distribution to the Lenders), have
been prepared in accordance with GAAP consistently applied throughout the
periods covered thereby, are complete and correct in all material respects and
present fairly the financial condition and results from operations of the
entities for the periods specified, subject in the case of interim company-
prepared statements to normal year-end adjustments and the absence of footnotes:
(i) an audited consolidated balance sheet of the Consolidated Group
dated as of December 31, 1997, together with related consolidated
statements of income and cash flows certified by PricewaterhouseCoopers,
LLP, certified public accountants; and
(ii) a company-prepared consolidated balance sheet of the Consolidated
Group dated as of September 30, 1998, together with related consolidated
statements of income and cash flows.
6.2 No Changes or Restricted Payments.
---------------------------------
Since the date of the audited financial statements referenced in Section
6.1(i), (a) there has been no circumstance, development or event relating to or
affecting the members of the Consolidated Group which has had or would be
reasonably expected to have a Material Adverse Effect, and (b) except as
permitted herein, no Restricted Payments have been made or declared or are
contemplated by any members of the Consolidated Group.
6.3 Organization; Existence; Compliance with Law.
--------------------------------------------
Each of the members of the Consolidated Group (a) is duly organized,
validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has the corporate or other necessary power
and authority, and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business
52
in which it is currently engaged, (c) is duly qualified as a foreign entity and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law, except to
the extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
---------------------------------------------
Each of the Credit Parties has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate or other
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with acceptance of Extensions of Credit
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Credit Parties (other than those
which have been obtained, such filings as are required by the SEC and to fulfill
other reporting requirements with Governmental Authorities) or with the validity
or enforceability of any Credit Document against the Credit Parties (except such
filings as are necessary in connection with the perfection of the Liens created
by such Credit Documents). Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of such Credit Party
enforceable against such Credit Party in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar.
------------
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any material Contractual Obligation of any member of
the Consolidated Group (except those as to which waivers or consents have been
obtained), and will not result in, or require, the creation or imposition of any
Lien on any of its respective properties or revenues pursuant to any Requirement
of Law or Contractual Obligation other than the Liens arising under or
contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a Material
Adverse Effect.
6.6 No Material Litigation.
----------------------
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against, any members of the Consolidated Group
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby
or (b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect. Set forth on Schedule 6.6 is a summary of all claims,
------------
litigation, investigations and proceedings pending or, to the best knowledge of
the Credit Parties,
53
threatened by or against the members of the Consolidated Group or against any of
their respective properties or revenues, and none of such actions, individually
or in the aggregate, is reasonably expected to have a Material Adverse Effect.
6.7 No Default.
----------
No Default or Event of Default has occurred and is continuing.
6.8 Ownership of Property; Liens.
----------------------------
Each of members of the Consolidated Group (i) has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
material real property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is subject to any Lien,
except for Permitted Liens and (ii) has obtained all material licenses, permits,
franchises or other authorizations, governmental or private, necessary to the
ownership of its Property and to the conduct of its business.
6.9 Intellectual Property.
---------------------
Each of the members of the Consolidated Group owns, or has the legal right
to use, all trademarks, tradenames, copyrights, technology, know-how and
processes, if any, necessary for each of them to conduct its business as
currently conducted (the "Intellectual Property") except for those the failure
---------------------
to own or have such legal right to use would not be reasonably expected to have
a Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Credit Party know of any such claim, and the use of such Intellectual Property
by the members of the Consolidated Group does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, would
not be reasonably expected to have a Material Adverse Effect.
6.10 No Burdensome Restrictions.
--------------------------
No Requirement of Law or Contractual Obligation of the members of the
Consolidated Group would be reasonably expected to have a Material Adverse
Effect.
6.11 Taxes.
-----
Each of the members of the Consolidated Group has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns which, to the best knowledge of the Credit Parties, are required to be
filed and has paid (a) all taxes shown to be due and payable on said returns or
(b) all taxes shown to be due and payable on any assessments of which it has
received notice made against it or any of its Property and all other taxes, fees
or other charges imposed on it or any of its Property by any Governmental
Authority (other than any (i) taxes, fees or other charges with respect to which
the failure to pay, in the aggregate, would not have a Material Adverse Effect
or (ii) taxes, fees or other charges the amount or validity of which are
54
currently being contested and with respect to which reserves in conformity with
GAAP have been provided on the books of such Person), and no tax Lien has been
filed, and, to the best knowledge of the Credit Parties, no claim is being
asserted, with respect to any such tax, fee or other charge.
6.12 ERISA
-----
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Internal
Revenue Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance with its
own terms and in material compliance with the provisions of ERISA, the Internal
Revenue Code, and any other applicable federal or state laws; and (iv) no lien
in favor of the PBGC or a Plan has arisen or is reasonably likely to arise on
account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single Employer
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets of such
Plan.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Credit Parties, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. No member of the Consolidated Group nor any
ERISA Affiliate would become subject to any withdrawal liability under ERISA if
any member of the Consolidated Group or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No member of the Consolidated Group nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best knowledge of the Credit
Parties, reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Internal Revenue Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected or may
subject any member of the Consolidated Group or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Internal Revenue Code, or under any agreement or other instrument pursuant
to which any member of the Consolidated Group or any ERISA Affiliate has agreed
or is required to indemnify any person against any such liability.
55
(e) No member of the Consolidated Group nor any ERISA Affiliates has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all material respects
of such sections.
6.13 Governmental Regulations, Etc.
-----------------------------
(a) No part of the proceeds of the Extensions of Credit hereunder will be
used, directly or indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by any Lender
or the Agent, the Borrower will furnish to the Agent and each Lender a statement
to the foregoing effect in conformity with the requirements of FR Form U-1
referred to in said Regulation U. No indebtedness being reduced or retired out
of the proceeds of the Extensions of Credit hereunder was or will be incurred
for the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meanings of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Borrower and its
Subsidiaries. None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation T, U or X.
(b) None of the members of the Consolidated Group is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, none of the
members of the Consolidated Group is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any member
of the Consolidated Group is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O issued by
the Board of Governors of the Federal Reserve System.
6.14 Subsidiaries.
------------
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower at the
-------------
Closing Date, the jurisdiction of their incorporation and the direct or indirect
ownership interest of the Borrower therein.
56
6.15 Purpose of Extensions of Credit.
-------------------------------
The Extensions of Credit will be used to refinance existing Funded Debt,
and to finance working capital and other corporate purposes, including
acquisitions permitted hereunder. The Letters of Credit shall be used only for
or in connection with appeal bonds, reimbursement obligations arising in
connection with surety and reclamation bonds, reinsurance, domestic or
international trade transactions and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account party in the
ordinary course of business.
6.16 Environmental Matters.
---------------------
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by the
members of the Consolidated Group (the "Subject Properties") and all operations
------------------
at the Subject Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect to the
Subject Properties or the businesses operated by the members of the Consolidated
Group (the "Businesses").
----------
(b) None of the members of the Consolidated Group has received any written
or verbal notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Subject Properties or the Businesses, nor does any member
of the Consolidated Group have knowledge or reason to believe that any such
notice will be received or is being threatened.
(c) Materials of Environmental Concern have not been transported or
disposed of from the Subject Properties, or generated, treated, stored or
disposed of at, on or under any of the Subject Properties or any other location,
in each case by or on behalf any members of the Consolidated Group in violation
of, or in a manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.
(d) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any member of the Consolidated Group is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any member of the Consolidated Group, the Subject Properties or the Businesses.
(e) There has been no Release or, threat of Release of Materials of
Environmental Concern, arising from or related to the operations (including,
without limitation, disposal) of any member of the Consolidated Group in
connection with the Subject Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
57
6.17 Year 2000 Compliance.
--------------------
The Borrower has (i) initiated a review and assessment of all areas within
its and each of its Subsidiaries' business and operations that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
-----------------
applications used by the Borrower or any of its Subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable. Based on the
foregoing, the Borrower believes that all computer applications that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly date-
sensitive functions for all dates before and after January 1, 2000 (that is, be
"Year 2000 Compliant"), except to the extent that a failure to do so could not
-------------------
reasonably be expected to have a Material Adverse Effect.
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each of the Credit Parties covenants and agrees that on the Closing Date,
and so long as this Credit Agreement is in effect and until the Commitments have
been terminated, no Obligations remain outstanding and all amounts owing
hereunder or in connection herewith have been paid in full, each of the members
of the Consolidated Group party hereto shall:
7.1 Financial Statements.
--------------------
Furnish, or cause to be furnished, to the Agent and the Lenders:
(a) Audited Financial Statements. As soon as available, but in any
----------------------------
event within 95 days after the end of each fiscal year, an audited
consolidated balance sheet of the Consolidated Group as of the end of the
fiscal year and the related consolidated statements of income, retained
earnings, shareholders' equity and cash flows for the year, audited by
independent certified public accountants of nationally recognized standing
acceptable to the Required Lenders in their reasonable discretion, setting
forth in each case in comparative form the figures for the previous year,
reported without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such
financial statements without such qualification.
(b) Borrower-Prepared Financial Statements. As soon as available, but
--------------------------------------
in any event
(i) within 50 days after the end of each of the first three fiscal
quarters, a company-prepared consolidated balance sheet of the
Consolidated Group as of the end of the quarter and related company-
prepared consolidated statements of
58
income, retained earnings, shareholders' equity and cash flows for
such quarterly period and for the fiscal year to date;
(ii) within 90 days after the end of the fourth fiscal quarter, a
company-prepared consolidating balance sheet of the Consolidated Group
as of the end of the quarter and related company-prepared
consolidating statements of income, retained earnings, shareholders'
equity and cash flows for such quarterly period and for the fiscal
year to date;
(iii) within 45 days following the end of each fiscal year, an
annual business plan and budget for the members of the Consolidated
Group, containing, among other things, pro forma financial statements
for such current fiscal year;
(iv) within 45 days following the end of each fiscal quarter, an
accounts receivable aging and listing certified by the chief financial
officer of the Borrower to be true and correct as of the date thereof
and in form reasonably satisfactory to the Agent,
in each case setting forth in comparative form the consolidated figures for
the corresponding period or periods of the preceding fiscal year or the
portion of the fiscal year ending with such period, as applicable, in each
case subject to normal recurring year-end audit adjustments.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring year-
end audit adjustments) and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and further accompanied by a description of, and an estimation of the
effect on the financial statements on account of, a change in the application of
accounting principles as provided in Section 1.3.
7.2 Certificates; Other Information.
-------------------------------
Furnish, or cause to be furnished, to the Agent and the Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the
------------------------------------
delivery of the financial statements referred to in Section 7.1(a) above, a
certificate of the independent certified public accountants reporting on
such financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate.
(b) Officer's Compliance Certificate. Concurrently with the delivery
--------------------------------
of the financial statements referred to in Sections 7.1(a) and 7.1(b)
above, a certificate of a Responsible Officer stating that, to the best of
such Responsible Officer's knowledge and belief, (i) the financial
statements fairly present in all material respects the financial condition
of the parties covered by such financial statements, (ii) during such
period the
59
members of the Consolidated Group have observed or performed in all
material respects the covenants and other agreements hereunder and under
the other Credit Documents relating to them, and satisfied in all material
respects the conditions, contained in this Credit Agreement to be observed,
performed or satisfied by them, and (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate. Such certificate shall include the
calculations required to indicate compliance with Section 7.9. A form of
officer's certificate is attached as Schedule 7.2(b).
---------------
(c) Accountants' Reports. Promptly upon receipt, a copy of any final
--------------------
(as distinguished from a preliminary or discussion draft) "management
letter" or other similar report submitted by independent accountants or
financial consultants to the members of the Consolidated Group in
connection with any annual, interim or special audit.
(d) Public Information. Within thirty days after the same are sent,
------------------
copies of all reports (other than those otherwise provided pursuant to
Section 7.1) and other financial information which any member of the
Consolidated Group sends to its public stockholders, and within thirty days
after the same are filed, copies of all financial statements and non-
confidential reports which any member of the Consolidated Group may make
to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority.
(e) Other Information. Promptly, such additional financial and other
-----------------
information as the Agent, at the request of any Lender, may from time to
time reasonably request.
7.3 Notices.
-------
Give notice to the Agent (which shall promptly transmit such notice to each
Lender) of:
(a) Defaults. Immediately (and in any event within two (2) Business
--------
Days) after any Credit Party knows or has reason to know thereof, the
occurrence of any Default or Event of Default.
(b) Contractual Obligations. Promptly, the occurrence of any default
-----------------------
or event of default under any Contractual Obligation of any member of the
Consolidated Group which would reasonably be expected to have a Material
Adverse Effect.
(c) Legal Proceedings. Promptly, any litigation, or any investigation
-----------------
or proceeding (including without limitation, any environmental proceeding)
known to any member of the Consolidated Group, or any material development
in respect thereof, affecting any member of the Consolidated Group which,
if adversely determined, would reasonably be expected to have a Material
Adverse Effect.
60
(d) ERISA. Promptly, after any Responsible Officer of the Borrower
-----
knows or has reason to know of (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against any of their ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make
full payment on or before the due date (including extensions) thereof of
all amounts which the members of the Consolidated Group or any ERISA
Affiliate are required to contribute to each Plan pursuant to its terms and
as required to meet the minimum funding standard set forth in ERISA and the
Internal Revenue Code with respect; or (iv) any change in the funding
status of any Plan that reasonably could be expected to have a Material
Adverse Effect; together with a description of any such event or condition
or a copy of any such notice and a statement by the chief financial officer
of the Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is being
taken or is proposed to be taken by the Credit Parties with respect
thereto. Promptly upon request, the members of the Consolidated Group
shall furnish the Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not
limited to, copies of each annual report/return (Form 5500 series), as well
as all schedules and attachments thereto required to be filed with the
Department of Labor and/or the Internal Revenue Service pursuant to ERISA
and the Internal Revenue Code, respectively, for each "plan year" (within
the meaning of Section 3(39) of ERISA).
(e) Other. Promptly, any other development or event which a
-----
Responsible Officer of the Borrower determines could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the relevant Credit Parties propose
to take with respect thereto.
7.4 Payment of Obligations.
----------------------
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, in accordance with prudent business
practice (subject, where applicable, to specified grace periods) all material
obligations of each member of the Consolidated Group of whatever nature and any
additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such obligations, except when the amount or
validity of such obligations and costs is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Consolidated
Group, as the case may be.
61
7.5 Conduct of Business and Maintenance of Existence.
------------------------------------------------
Continue to engage in business of the same general type as now conducted by
it on the date hereof and similar or related businesses; except as permitted by
Section 8.3, preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges,
licenses and franchises necessary or desirable in the normal conduct of its
business; and comply with all Contractual Obligations and Requirements of Law
applicable to it except to the extent that failure to comply therewith would
not, in the aggregate, have a Material Adverse Effect.
7.6 Maintenance of Property; Insurance.
----------------------------------
Keep all material Property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability and such other insurance (which may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice (except to any greater extent as may be required by the terms of any of
the other Credit Documents); and furnish to the Agent, upon written request,
full information as to the insurance carried.
7.7 Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the Agent,
the Agent and its agents and representatives to visit and inspect any of its
Properties and examine and make abstracts (including photocopies) from any of
its books and records (other than materials protected by the attorney-client
privilege and materials which the Credit Parties may not disclose without
violation of a confidentiality obligation binding upon them) at any reasonable
time, and to discuss the business, operations, properties and financial and
other condition of the members of the Consolidated Group with the principal
officers of the members of the Consolidated Group and with their independent
certified public accountants. The cost of the inspection referred to in the
preceding sentence shall be for the account of the Lenders unless an Event of
Default has occurred and is continuing, in which case the cost of such
inspection shall be for the account of the Credit Parties.
7.8 Environmental Laws.
------------------
(a) Comply in all material respects with, and take reasonable actions to
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and take reasonable actions to ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits
62
required by applicable Environmental Laws except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings and the failure to do or the pendency of such proceedings would not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the members of the Consolidated Group or the Subject Properties,
or any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking indemnification
therefor. The agreements in this paragraph shall survive repayment of the Loans
and all other amounts payable hereunder, and termination of the Commitments.
7.9 Financial Covenants.
-------------------
Comply with the following financial covenants:
(a) Consolidated Leverage Ratio. As of the end of each fiscal quarter, the
---------------------------
Consolidated Leverage Ratio shall be not greater than 3.0:1.0.
(b) Consolidated Fixed Charge Coverage Ratio. As of the end of each fiscal
----------------------------------------
quarter, the Consolidated Fixed Charge Coverage Ratio shall be not less than
1.75:1.0.
(c) Consolidated Net Worth. As of the end of each fiscal quarter,
----------------------
Consolidated Net Worth shall be not less than the sum of $45,000,000 plus on the
----
last day of each fiscal quarter to occur after the Closing Date, 75% of
Consolidated Net Income for the fiscal quarter then ended, such increases to be
cumulative, plus 100% of the Net Proceeds from Equity Transactions occurring
----
after the Closing Date.
(d) Consolidated Senior Leverage Ratio. As of the end of each fiscal
----------------------------------
quarter, the Consolidated Senior Leverage Ratio shall be not greater than
2.5:1.0.
(e) Capital Expenditures. The aggregate amount of Capital Expenditures for
--------------------
the Consolidated Group will not exceed in any fiscal year an amount equal to the
sum of (a) $6,500,000 (provided such amount shall equal $7,500,000 with respect
to fiscal year 2001) plus
----
63
(b) for fiscal years occurring after the current fiscal year, the unused
portions from prior fiscal years beginning with the first fiscal year to occur
after the Closing Date.
7.10 Administrative Fees.
-------------------
Pay to the Agent the Agent's Fees and comply with the other agreements
provided for in the Agent's Fee Letter.
7.11 Additional Guaranties, Stock Pledges and Collateral.
---------------------------------------------------
(a) Domestic Subsidiaries. At any time any Person becomes a Domestic
---------------------
Subsidiary,
the Borrower shall (i) promptly notify the Agent thereof, and promptly cause
such Domestic Subsidiary to become a Guarantor by execution of a Joinder
Agreement, (ii) deliver the stock certificates together with undated stock
transfer powers executed in blank evidencing the pledge of all of the Voting
Stock of such Domestic Subsidiary held by any Credit Party, (iii) deliver with
the Joinder Agreement, supporting resolutions, incumbency certificates,
corporate formation and organizational documentation and opinions of counsel as
the Agent may reasonably request, (iv) cause such Domestic Subsidiary to grant
to the Agent a first-priority perfected security interest in all Collateral in
which it has an interest and in all owned or leased real property (to the extent
deemed material by the Agent) and (v) cause such Domestic Subsidiary to deliver
stock certificates and related pledge agreements or pledge joinder agreements
evidencing the pledge of all of the Voting Stock held by such Domestic
Subsidiary in each of its Domestic Subsidiaries, together with undated stock
transfer powers executed in blank.
(b) Foreign Subsidiaries. At any time any Person becomes a Foreign
--------------------
Subsidiary, the Borrower will notify the Agent thereof within 10 days after a
Responsible Officer has knowledge thereof, and, within 45 days thereafter, cause
(A) delivery of supporting resolutions, incumbency certificates, corporation
formation and organizational documentation and opinions of counsel as the Agent
may reasonably request, and (B) delivery of stock certificates (where required
for perfection under local law) and a related pledge agreement or pledge joinder
agreement evidencing the pledge of 66% of the Voting Stock of such Foreign
Subsidiary and of 66% of the Voting Stock of each of its Domestic Subsidiaries,
together in each case with undated stock transfer powers executed in blank.
(c) Additional Collateral. If, subsequent to the Closing Date, a Credit
---------------------
Party shall (a) acquire any real property, any intellectual property or any
securities or (b) acquire any other personal property required to be delivered
to the Agent as Collateral hereunder or under any of the Security Agreement, the
Borrower shall immediately notify the Agent of same. Each Credit Party shall
take such action (including, but not limited to, the execution of UCC financing
statements or Mortgages), as requested by the Agent and at its own expense, to
ensure that the Lenders have a perfected Lien in such personal property of the
Credit Parties as set forth in the Security Agreement (whether now owned or
hereafter acquired) and any owned or leased real property (to the extent deemed
material by the Agent), subject only to Permitted Liens. Each Credit Party
shall adhere to the covenants regarding the location of personal property as set
forth in the Security Agreement.
64
7.12 Ownership of Subsidiaries.
-------------------------
Except to the extent otherwise permitted in Section 8.6, the Borrower
shall, directly or indirectly, own at all times at least 80% of the Voting Stock
of each of its Subsidiaries.
7.13 Use of Proceeds.
---------------
Extensions of Credit will be used solely for the purposes provided in
Section 6.15.
7.14 Interest Rate Protection Agreements.
-----------------------------------
At such time as the aggregate amount of all outstanding Loans plus LOC
Obligations equals at least $40,000,000, the Borrower shall: (a) within 90 days
of such date, enter into interest rate protection agreements providing coverage
for at least $20,000,000 and (b) at all times thereafter, enter into additional
interest rate protection agreements providing coverage for at least $5,000,000
for each $10,000,000 of outstanding Loans plus LOC Obligations in excess of
$40,000,000. All such interest rate protection agreements shall protect against
fluctuations in interest rates and shall be satisfactory in form and substance
to the Agent in its reasonable discretion
7.15 Year 2000 Compatibility.
-----------------------
Take all action necessary to assure that its computer based systems are
able to operate and effectively process data including dates on and after
January 1, 2000, and, at the reasonable request of the Agent or the Required
Lenders, provide evidence to the Lenders of such year 2000 compatibility.
7.16 Field Examination.
-----------------
Within six months following the Closing Date, the Borrower shall permit the
Agent (or a third party satisfactory to the Agent) to conduct a written business
audit of the accounts receivable, inventory, payables, controls and systems of
the Consolidated Group. If the results of such audit are not satisfactory to
the Agent, in its reasonable discretion, the Borrower covenants and agrees to
cooperate in good faith with the Agent to develop a plan of action that will
correct the deficiencies identified by the Agent within 180 days of the
completion of such audit.
SECTION 8
NEGATIVE COVENANTS
Each of the Credit Parties covenants and agrees that on the Closing Date,
and so long as this Credit Agreement is in effect and until the Commitments have
been terminated, no Obligations remain outstanding and all amounts owing
hereunder or in connection herewith, have been paid in full, no member of the
Consolidated Group shall:
65
8.1 Indebtedness.
------------
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness set forth in Schedule 8.1, and renewals, refinancings and
------------
extensions thereof on terms and conditions no less favorable than for such
existing Indebtedness;
(c) Capital Lease Obligations and Indebtedness incurred, in each case, to
provide all or a portion of the purchase price or costs of construction of an
asset or, in the case of a sale/leaseback transaction as described in Section
8.10, to finance the value of such asset owned by a member of the Consolidated
Group, provided that (i) such Indebtedness when incurred shall not exceed the
--------
purchase price or cost of construction of such asset or, in the case of a
sale/leaseback transaction, the fair market value of such asset, (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing, and (iii)
the total amount of all such Indebtedness shall not exceed $2,000,000 at any
time outstanding;
(d) Indebtedness and obligations owing under Hedging Agreements entered
into in the ordinary course of business to manage existing or anticipated risks
and not for speculative purposes;
(e) unsecured intercompany Indebtedness owing by a member of the
Consolidated Group to another member of the Consolidated Group (subject,
however, to the limitations of Section 8.4 in the case of the member of the
Consolidated Group extending the intercompany loan, advance or credit);
(f) other unsecured Indebtedness of the Borrower of up to $1,000,000 in the
aggregate at any time outstanding;
(g) Support Obligations of Indebtedness permitted under this Section 8.1;
and
(h) Subordinated Debt of the Borrower issued in connection with an
acquisition permitted by Section 8.3, provided that after giving effect thereto
no Default or Event of Default would exist on a Pro Forma Basis.
(i) Indebtedness of the Borrower secured by equipment ("Equipment
Indebtedness") or unsecured working capital Indebtedness ("Working Capital
Indebtedness"), in each case assumed in connection with an acquisition permitted
by Section 8.3, provided that (A) any Working Capital Indebtedness so assumed
must contain a prepayment penalty that is applicable at the time of the closing
of such acquisition and such Working Capital Indebtedness so assumed must be
paid in full and terminated within six months of the closing of such
acquisition, (B) after giving effect to the assumption of any such Equipment
Indebtedness or Working Capital
66
Indebtedness, no Default or Event of Default would exist on a Pro Forma Basis
and (C) the aggregate principal amount of all such Equipment Indebtedness and
Working Capital Indebtedness at any time outstanding shall not exceed
$2,000,000, and
(j) Indebtedness of the Borrower in the form of earn-out obligations
incurred in connection with an acquisition permitted by Section 8.3, provided
that after giving effect to the incurrence of such obligation no Default or
Event of Default would exist on a Pro Forma Basis.
8.2 Liens.
-----
Contract, create, incur, assume or permit to exist any Lien with respect to
any of their respective property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 Consolidation, Merger, Sale or Purchase of Assets, etc.
------------------------------------------------------
(a) Enter into a transaction of merger or consolidation, except a
------
member of the Consolidated Group may be a party to a transaction of merger or
consolidation with any Person, provided that (A) the Borrower may be a party to
--------
a transaction of merger or consolidation only with another member of the
Consolidated Group and in any such case the Borrower shall be the surviving
corporation thereto, (B) in any other case, the surviving corporation shall be a
Domestic Subsidiary and such Domestic Subsidiary shall become a Guarantor
hereunder as an Additional Credit Party pursuant to Section 7.11 concurrently
therewith, (C) no Default or Event of Default shall exist either immediately
prior to or immediately after giving effect thereto and (D) in the case of a
transaction of merger or consolidation with any Person which is not a member of
the Consolidated Group, the provisions of subsection (c) of this Section 8.3
shall be complied with.
(b) Sell, lease, transfer or otherwise dispose of assets, property
and/or operations (including any sale-leaseback transaction, but excluding the
sale of inventory in the ordinary course of business), other than to another
Credit Party, which
(i) in any instance (including any series of related
transactions) shall constitute more than five percent (5%) of consolidated
assets at the end of the immediately preceding fiscal year or five percent
(5%) of Consolidated Net Income for the immediately preceding fiscal year,
or
(ii) in the aggregate in any fiscal year shall constitute more
than ten percent (10%) of consolidated assets at the end of the immediately
preceding fiscal year or ten percent (10%) Consolidated Net Income for the
immediately preceding fiscal year, and
(iii) no Default or Event of Default would exist after giving
effect thereto on a Pro Forma Basis.
67
(c) Acquire all or any portion of the capital stock or other ownership
interest in any Person which is not a Subsidiary or all or any substantial
portion of the assets, property and/or operations of a Person which is not a
Subsidiary, unless
------
(i) in the case of an acquisition of capital stock or other
ownership interest after giving effect thereto, such Person will not be a
Subsidiary, then such acquisition will not cause a violation of Section
8.4; or
(ii) (A) in the case of an acquisition of capital stock or other
ownership interest where, after giving effect thereto, such Person will be
a Subsidiary, or (B) in the case of an acquisition of assets, property
and/or operations then
(I) (x) the total cash consideration paid in connection with
any such acquisition (or series of related transactions) shall not
exceed $15,000,000 in any instance (or in the case of an acquisition
of the type described in clause (c)(ii)(A) above constituting less
than 100% of the outstanding capital stock or other ownership
interests of any Person, the total cash consideration paid in
connection therewith shall not exceed $10,000,000 in any instance);
and (y) the aggregate cost (including, without limitation, cash
consideration paid and assumption of Indebtedness) of all such
acquisitions (or series of related transactions) shall not exceed
$30,000,000 during any fiscal year; provided, however, acquisitions
-------- -------
specifically reviewed and approved by the Required Lenders (and not
automatically approved pursuant to clause (x) above) shall not be
counted toward the aggregate annual limit in this clause (y);
(II) the Board of Directors of the Person which is the
subject of such acquisition shall have approved such acquisition; and
(III) no Default or Event of Default would exist after
giving effect thereto on a Pro Forma Basis.
(d) In the case of the Borrower and any Subsidiary which is not
wholly-owned, liquidate, wind-up or dissolve, whether voluntarily or
involuntarily (or suffer to permit any such liquidation or dissolution).
(e) Alter the character of their business in any material respect from
that conducted as of the Closing Date and similar or related businesses.
8.4 Advances, Investments and Loans.
-------------------------------
Lend money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, or otherwise make an Investment in, any Person
except for Permitted Investments.
68
8.5 Transactions with Affiliates.
----------------------------
Enter into or permit to exist any transaction or series of transactions,
whether or not in the ordinary course of business, with any officer, director,
shareholder or Affiliate other than (i) transactions permitted by Section 8.1,
Section 8.3(b), Section 8.4 or Section 8.9, (ii) customary fees and expenses
paid to directors and (iii) where such transactions are on terms and conditions
substantially as favorable as would be obtainable in a comparable arm's-length
transaction with a Person other than an officer, director, shareholder or
Affiliate.
8.6 Ownership of Equity Interests.
-----------------------------
Issue, sell, transfer, pledge or otherwise dispose of any partnership
interests, shares of capital stock or other equity or ownership interests
("Equity Interests") in any member of the Consolidated Group, except (i) the
------------------
issuance of additional shares of common stock by the Borrower in a registered
public offering or in a private placement of such shares or in connection with
an acquisition consummated prior to the Closing Date or permitted by Section
8.3, (ii) the issuance, sale or transfer of Equity Interests to a Credit Party
by a Subsidiary of such Credit Party, (iii) as needed to qualify directors under
applicable law and (iv) in connection with the exercise by any former, present
or future employee, officer or director under any stock incentive plan, stock
option plan or other equity-based compensation plan or arrangement (collectively
"Stock Option Plans"), provided such Stock Option Plans in the aggregate do not
------------------
exceed 15% of the total equity in such member.
8.7 Fiscal Year.
-----------
Change its fiscal year from a December 31 fiscal year end.
8.8 Prepayments of Indebtedness, etc.
---------------------------------
(a) After the issuance thereof, amend or modify (or permit the amendment or
modification of), the terms of any other Indebtedness in a manner adverse to the
interests of the Lenders (including specifically shortening any maturity or
average life to maturity or requiring any payment sooner than previously
scheduled or increasing the interest rate or fees applicable thereto);
(b) Make any prepayment, redemption, defeasance or acquisition for value of
(including without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when due), or
refund, refinance or exchange of any Funded Debt (other than intercompany
Indebtedness permitted hereunder) other than regularly scheduled payments of
principal and interest on such Funded Debt.
8.9 Restricted Payments.
-------------------
Make or permit any Restricted Payments except for redemptions of shares of
Preferred Stock (i) on the Closing Date in an amount not to exceed $2,500,000,
(ii) with proceeds of
69
additional shares of common stock issued by the Borrower in a public offering,
provided at least 80% of the Net Proceeds of such additional capital stock
issued by the Borrower are used to prepay the Term Loan pursuant to the terms of
Section 3.3(b) or (iii) at such time as the Borrower achieves net income (as
defined below in this Section 8.9) of at least $10,000,000 over any four
consecutive calendar quarters as reported in the financial statements delivered
pursuant to Section 7.1; provided, however, such redemptions described in
-------- -------
clauses (ii) and (iii) shall be permitted only if (A) no Default or Event of
Default exists hereunder and (B) the Consolidated Senior Leverage Ratio shall
not exceed 2.25 to 1.00, both (I) after giving effect to such redemption on a
Pro Forma Basis and (II) after giving effect thereto in the pro forma financial
statements for the coming fiscal year based on the annual projections provided
pursuant to Section 7.1(b)(iii). For purposes of clause (iii) of this Section
8.9, the "Consolidated Senior Leverage Ratio" shall mean the ratio of (a)
Consolidated Funded Debt minus Subordinated Debt to (b) Consolidated EBITDA for
-----
the period of four consecutive fiscal quarters ending as of such day minus
-----
increases in working capital (as defined by GAAP) during such period.
8.10 Sale Leasebacks.
---------------
Except as permitted pursuant to Section 8.1(c) hereof, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (i) which such Person has sold or transferred or is to sell or
transfer to any other Person other than a Credit Party or (ii) which such Person
intends to use for substantially the same purpose as any other Property which
has been sold or is to be sold or transferred by such Person to any other Person
in connection with such lease.
8.11 Limitations on Restricted Actions.
---------------------------------
Directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Person to (a) pay dividends or make any other distributions to any Credit Party
on its capital stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation owed
to any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party, (e) ▇▇▇▇▇
▇ ▇▇▇▇ on its properties or assets whether now owned or hereafter acquired or
(f) act as a Guarantor and pledge its assets pursuant to the Credit Documents or
any renewals, refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents or (ii) applicable law.
8.12 No Further Negative Pledges.
---------------------------
Except with respect to prohibitions against other encumbrances on specific
Property encumbered to secure payment of particular Indebtedness (which
Indebtedness relates solely to such specific Property, and improvements and
accretions thereto, and is otherwise permitted hereby), no member of the
Consolidated Group will enter into, assume or become subject to any
70
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation.
8.13 No Foreign Subsidiaries.
-----------------------
Create, acquire or permit to exist any Foreign Subsidiaries except for the
formation of a new Foreign Subsidiary in compliance with the terms of Section
7.11(b) and with the limitations set forth in subclause (xiii) of the definition
of Permitted Investments.
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
----------------
(a) Payment. Any Credit Party shall
-------
(i) default in the payment when due of any principal of any of the
Loans or of any reimbursement obligations arising from drawings under
Letters of Credit, or
(ii) default, and such default shall continue for five (5) or more
Business Days, in the payment when due of any interest on the Loans or any
interest on any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts owing hereunder, under
any of the other Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or
---------------
deemed to be made herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date as of which it
was made or deemed to have been made; or
(c) Covenants.
---------
(i) Default in the due performance or observance of any term,
covenant or agreement contained in Section 7.3(a), 7.9, 7.11, 7.13 or 8.1
through 8.13, inclusive, or
(ii) Default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsections
(a), (b) or (c)(i) of this Section 9.1) contained in this Credit Agreement
and such default shall continue unremedied for a period
71
of at least 30 days after the earlier of a responsible officer of a Credit
Party becoming aware of such default or notice thereof by the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in the due
----------------------
performance or observance of any material term, covenant or agreement in any of
the other Credit Documents (subject to applicable grace or cure periods, if
any), or (ii) except as to the Credit Party which is dissolved, released or
merged or consolidated out of existence as the result of or in connection with a
dissolution, merger or disposition permitted by Section 8.3(a), Section 8.3(b)
or Section 8.3(c), any Credit Document shall fail to be in full force and effect
or to give the Agent and/or the Lenders any material part of the Liens, rights,
powers and privileges purported to be created thereby; or
(e) Guaranties. Except as to the Credit Party which is dissolved, released
----------
or merged or consolidated out of existence as the result of or in connection
with a dissolution, merger or disposition permitted by Section 8.3(a), Section
8.3(b) or Section 8.3(c), the guaranty given by any Guarantor hereunder or any
material provision thereof shall cease to be in full force and effect, or any
Guarantor hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any
guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
---------------
member of the Consolidated Group; or
(g) Defaults under Other Agreements.
-------------------------------
(i) Any member of the Consolidated Group shall default in the
performance or observance (beyond the applicable grace period with respect
thereto, if any) of any material obligation or condition of any contract or
lease material to the Consolidated Group, taken as a whole (including,
without limitation, the Sprint Agreement); or
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under this Credit Agreement) in excess of $2,000,000 in the
aggregate for the Consolidated Group taken as a whole, (A) (1) any member of
the Consolidated Group shall default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness, or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause, or permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of such holders)
to cause (determined without regard to whether any notice or lapse of time
is required), any such Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be declared due and payable, or
required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
72
(h) Judgments. Any member of the Consolidated Group shall fail within 30
---------
days of the date due and payable to pay, bond or otherwise discharge any
judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $2,000,000, and which is not
stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; or
(i) ERISA. Any of the following events or conditions, if such event or
-----
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Internal Revenue Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets of a
member of the Consolidated Group or any ERISA Affiliate in favor of the PBGC or
a Plan; (2) an ERISA Event shall occur with respect to a Single Employer Plan,
which is, in the reasonable opinion of the Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Agent, likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii) a member of
the Consolidated Group or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the meaning of
Section 4241 of ERISA), or insolvency of (within the meaning of Section 4245 of
ERISA) such Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Internal Revenue Code) or breach of
fiduciary responsibility shall occur which may subject a member of the
Consolidated Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Internal Revenue Code, or
under any agreement or other instrument pursuant to which a member of the
Consolidated Group or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability; or
(j) Ownership. There shall occur a Change of Control.
---------
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter, the
Agent shall, upon the request and direction of the Required Lenders, by written
notice to the Credit Parties take any of the following actions:
(i) Termination of Commitments. Declare the Commitments
--------------------------
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
------------
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Agent and/or any of the Lenders hereunder to be due whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
of the Credit Parties. Amounts received hereunder after termination of the
Commitments and acceleration of the
73
maturity of the Loans and obligations hereunder, shall be shared ratably
between the Revolving Lenders based on the outstanding principal amount of
Revolving Obligations, on the one hand, and the Term Lenders based on the
outstanding principal amount of the Term Loan, on the other hand.
(iii) Cash Collateral. Direct the Borrower to pay (and the
---------------
Borrower agrees that upon receipt of such notice, or upon the occurrence of
an Event of Default under Section 9.1(f), it will immediately pay) to the
Agent additional cash, to be held by the Agent, for the benefit of the
Revolving Lenders, in a cash collateral account as additional security for
the LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all Letters of Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and
---------------------
interests created and existing under the Credit Documents and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without
presentment, demand, protest or the giving of any notice or other action by the
Agent or the Lenders, all of which are hereby waived by the Credit Parties.
SECTION 10
AGENCY PROVISIONS
-----------------
10.1 Appointment.
-----------
Each Lender hereby designates and appoints NationsBank, as administrative
agent (in such capacity, the "Agent") of such Lender to act as specified herein
-----
and the other Credit Documents, and each such Lender hereby authorizes the Agent
as the Agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Each Lender further directs and authorizes
the Agent to execute releases (or similar agreements) to give effect to the
provisions of this Credit Agreement and the other Credit Documents, including
specifically, without limitation, the provisions of Section 8.3 hereof.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section 10.1 are solely for the
benefit of the Agent and the Lenders, and none of the Credit Parties shall have
any
74
rights as a third party beneficiary of the provisions hereof. In performing
its functions and duties under this Credit Agreement and the other Credit
Documents, the Agent shall act solely as Agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Party or any of their respective
Affiliates.
10.2 Delegation of Duties.
--------------------
The Agent may execute any of its duties hereunder or under the other Credit
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions.
----------------------
The Agent and its officers, directors, employees, agents, attorneys-in-fact
or affiliates shall not be (i) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection herewith or in
connection with any of the other Credit Documents (except for its or such
Person's own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any of the Credit Parties contained herein or in any of the
other Credit Documents or in any certificate, report, document, financial
statement or other written or oral statement referred to or provided for in, or
received by the Agent under or in connection herewith or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of any Credit Party to perform its
obligations hereunder or thereunder. The Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower or any Credit Party in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Credit
Parties to the Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties or any of their respective
Affiliates.
10.4 Reliance on Communications.
--------------------------
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agent with reasonable care). The Agent may deem
and treat the Lenders as the owners of their respective interests
75
hereunder for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent in accordance with Section
11.3(b) hereof. The Agent shall be fully justified in failing or refusing to
take any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with
a request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
-----------------
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Agent has received
notice from a Lender or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
---------------------------------------
Each Lender expressly acknowledges that each of the Agent and its officers,
directors, employees, Agents, attorneys-in-fact or affiliates has not made any
representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the affairs of any
Credit Party or any of their respective Affiliates, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower, the other Credit Parties or
their respective Affiliates and made its own decision to make its Loans
hereunder and enter into this Credit Agreement. Each Lender also represents
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower, the other Credit Parties and their respective
Affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrower, the other
Credit Parties or any of their respective Affiliates which may come into the
76
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 Indemnification.
---------------
The Lenders agree to indemnify the Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitments (or if the
Commitments have expired or been terminated, in accordance with the respective
principal amounts of outstanding Loans and Participation Interests of the
Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the final payment of all of the obligations of the Borrower
hereunder and under the other Credit Documents) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating to or
arising out of this Credit Agreement or the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
--------
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. The agreements in this Section shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder.
10.8 Agent in its Individual Capacity.
--------------------------------
The Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, its Subsidiaries or
their respective Affiliates as though the Agent were not the Agent hereunder.
With respect to the Loans made by and all obligations of the Borrower hereunder
and under the other Credit Documents, the Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall include
the Agent in its individual capacity.
10.9 Successor Agent.
---------------
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and may be removed, upon show of cause, by the Required Lenders upon 30
days' written notice to the Agent. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the notice of resignation
or notice of removal, as appropriate, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a commercial
bank organized under the laws of the United
77
States of America or of any State thereof and has a combined capital and surplus
of at least $400,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations as Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10.9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Credit Agreement.
SECTION 11
MISCELLANEOUS
-------------
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via confirmed telecopy (or other confirmed
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service, or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case
to the respective parties at the address, in the case of the Borrower,
Guarantors and the Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 11.1, or at such other address as such party may specify by
-------------
written notice to the other parties hereto:
if to the Borrower or the Guarantors:
Access Worldwide Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
78
if to the Agent:
NationsBank, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
11.2 Right of Set-Off.
----------------
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Lender is authorized at any time and from time to
time, without presentment, demand, protest or other notice of any kind (all of
which rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by such Lender (including, without limitation branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of such
Credit Party to such Lender hereunder, under the Notes, the other Credit
Documents or otherwise, irrespective of whether such Lender shall have made any
demand hereunder and although such obligations, liabilities or claims, or any of
them, may be contingent or unmatured, and any such set-off shall be deemed to
have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. Any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Section 3.13 or Section 11.3(d) may exercise all rights of
set-off with respect to its participation interest as fully as if such Person
were a Lender hereunder.
11.3 Benefit of Agreement.
--------------------
(a) Generally. This Credit Agreement shall be binding upon and inure to
---------
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Credit Parties may assign or
--------
transfer any of its interests without prior written consent of the Lenders;
provided further that the rights of each Lender to transfer, assign or grant
-------- -------
participations in its rights and/or obligations hereunder shall be limited as
set forth in this Section
79
11.3, provided however that nothing herein shall prevent or prohibit any Lender
--------
from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank, or (ii) granting
assignments or selling participations in such Lender's Loans and/or Commitments
hereunder to its parent company and/or to any Affiliate or Subsidiary of such
Lender.
(b) Assignments. Each Lender may assign all or a portion of its rights and
-----------
obligations hereunder (including, without limitation, all or a portion of its
Commitments or its Loans), pursuant to an assignment agreement substantially in
the form of Schedule 11.3(b), to (i) a Lender, (ii) an affiliate of a Lender or
----------------
(iii) any other Person (other than the Borrower or an Affiliate of the Borrower)
reasonably acceptable to the Agent and, so long as no Default or Event of
Default has occurred and is continuing, the Borrower (the consent of the
Borrower shall not be unreasonably withheld or delayed and such consent shall be
deemed given if the Borrower does not notify the assigning Lender and the Agent
of any objection within two Business Days after the Borrower has been provided
notice of the proposed assignment by the assigning Lender or the Agent);
provided that (i) any such assignment (other than any assignment to an existing
--------
Lender) shall be in a minimum aggregate amount of $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) of the
Commitments and in integral multiples of $1,000,000 above such amount and (ii)
each such assignment shall be of a constant, not varying, percentage of all such
Lender's rights and obligations under this Credit Agreement. Any assignment
hereunder shall be effective upon delivery to the Agent of written notice of the
assignment together with a transfer fee of $3,500 payable to the Agent for its
own account from and after the later of (i) the effective date specified in the
applicable assignment agreement and (ii) the date of recording of such
assignment in the Register pursuant to the terms of subsection (c) below. The
assigning Lender will give prompt notice to the Agent and the Borrower of any
such assignment. Upon the effectiveness of any such assignment (and after
notice to, and (to the extent required pursuant to the terms hereof), with the
consent of, the Borrower as provided herein), the assignee shall become a
"Lender" for all purposes of this Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations hereunder to the extent of the Loans and Commitment
components being assigned. Along such lines the Borrower agrees that upon
notice of any such assignment and surrender of the appropriate Note or Notes, it
will promptly provide to the assigning Lender and to the assignee separate
promissory notes in the amount of their respective interests substantially in
the form of the original Note (but with notation thereon that it is given in
substitution for and replacement of the original Note or any replacement notes
thereof). By executing and delivering an assignment agreement in accordance
with this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim; (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, any of the other Credit Documents
or any other instrument or document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or any of their respective
80
Affiliates or the performance or observance by any Credit Party of any of its
obligations under this Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it has received
a copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such assignment agreement; (v) such assignee
will independently and without reliance upon the Agent, such assigning Lender or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Credit Agreement and the other Credit Documents;
(vi) such assignee appoints and authorizes the Agent to take such action on its
behalf and to exercise such powers under this Credit Agreement or any other
Credit Document as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.
(c) Maintenance of Register. The Agent shall maintain at one of its
-----------------------
offices in Charlotte, North Carolina a copy of each Lender assignment agreement
delivered to it in accordance with the terms of subsection (b) above and a
register for the recordation of the identity of the principal amount, type and
Interest Period of each Loan outstanding hereunder, the names, addresses and the
Commitments of the Lenders pursuant to the terms hereof from time to time (the
"Register"). The Agent will make reasonable efforts to maintain the accuracy of
---------
the Register and to promptly update the Register from time to time, as
necessary. The entries in the Register shall be conclusive in the absence of
manifest error and the Borrower, the 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 Credit Agreement. The Register shall be
available for inspection by the Borrower and each Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Each Lender may sell, transfer, grant or assign
--------------
participations in all or a portion of such Lender's rights, obligations or
rights and obligations hereunder (including all or a portion of its Commitments
or its Loans); provided that (i) such selling Lender shall remain a "Lender" for
--------
all purposes under this Credit Agreement (such selling Lender's obligations
under the Credit Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or Fees in
respect of any Loans in which the participant is participating, (B) postpone the
date fixed for any payment of principal (including extension of the Termination
Date or the date of any mandatory prepayment), interest or Fees in which the
participant is participating, (C) except as the result of or in connection with
a dissolution, merger or disposition of a Subsidiary permitted under Section
8.3, release the Borrower or substantially all of the Guarantors from its or
their obligations under the Credit Documents, or (D) except as the result of or
in connection with a disposition permitted under Section 8.3(b), release all or
substantially all of the collateral, and (iii) sub-participations by the
participant (except to an affiliate, parent company or affiliate of a parent
company of the
81
participant) shall be prohibited. In the case of any such participation, the
participant shall not have any rights under this Credit Agreement or the other
Credit Documents (the participant's rights against the selling Lender in respect
of such participation to be those set forth in the participation agreement with
such Lender creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation,
provided, however, that such participant shall be entitled to receive additional
--------
amounts under Sections 3.6, 3.9, 3.10, 3.11 and 11.2 on the same basis as if it
were a Lender.
11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Agent or any Lender and any of the Credit
Parties shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses, etc.
------------------------
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the other
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇
▇▇▇▇▇, PLLC, special counsel to the Agent) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (B) of the Agent and the Lenders in connection with enforcement of
the Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agent and each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes; and (iii)
defend, indemnify and hold harmless each Lender, its officers, directors,
employees, representatives and agents from and against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of (A) any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document,
82
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding or (B) the presence or Release of any Materials of Environmental
Concern at, under or from any Subject Property, or the failure by any member of
the Consolidated Group to comply with any Environmental Law (but excluding, in
the case of either of clause (A) or (B) above, any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross negligence
or willful misconduct on the part of the Person seeking to be indemnified).
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
-------- -------
(a) without the consent of each Lender affected thereby, neither this
Credit Agreement nor any of the other Credit Documents may be amended to
(i) extend the final maturity of any Loan or the time of
payment of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit, or extend or waive any
principal amortization payment of any Loan, or any portion thereof
(other than a waiver or modification of a mandatory prepayment or
commitment reduction hereunder which shall be subject to the consent
of the Required Lenders except as expressly provided otherwise),
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any increase
in interest rates after the occurrence of an Event of Default or on
account of a failure to deliver financial statements on a timely
basis) thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender),
(v) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under
Section 8.3, release the Borrower or substantially all of the
Guarantors from its or their obligations under the Credit Documents,
83
(vi) except as the result of or in connection with a
disposition permitted under Section 8.3(b), release all or
substantially all of the collateral,
(vii) amend, modify or waive any provision of this Section 11.6
or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 9.1(a),
11.2, 11.3, 11.5 or 11.9,
(viii) modify any percentage specified in, or otherwise amend,
the definition of Required Lenders, or
(ix) consent to the assignment or transfer by the Borrower (or
another Credit Party) of any of its rights and obligations under (or
in respect of) the Credit Documents except as permitted thereby;
(b) without the consent of the Agent, no provision of Section 10 may
be amended;
(c) without the consent of the Issuing Lender, no provision of Section
2.2 may be amended;
(d) without the consent of at least three non-affiliated Lenders which
are then in compliance with their obligations hereunder (as determined by
the Agent) and holding in the aggregate at least 51% of the Commitments,
subclause (ii) of Section 8.3(c) may not be amended; and
(e) without the consent of each Lender, clauses (ii) and (iii) of
Section 8.9 may not be amended.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
84
11.8 Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
--------
All indemnities set forth herein, including, without limitation, in Section
2.2(i), 3.9, 3.11, 10.7 or 11.5 shall survive the execution and delivery of this
Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
------------------------------------------------
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA. Any legal action or proceeding with respect to this Credit Agreement
or any other Credit Document may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Credit Agreement, each
of the Credit Parties hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the nonexclusive jurisdiction of
such courts. Each of the Credit Parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
11.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Agent to serve process in any other
manner permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS, THE
BORROWER AND THE OTHER CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
85
11.11 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
--------
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 Binding Effect; Termination.
---------------------------
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by the Borrower, the
Guarantors and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, the Guarantors, the Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall commence on the effective date
pursuant to subsection (a) above and shall continue until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding and until all of the Commitments
hereunder shall have expired or been terminated.
11.14 Confidentiality.
---------------
The Agent and the Lenders agree to keep confidential (and to cause their
respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf of any Credit Party
(whether before or after the Closing Date) which relates to the Borrower or any
of its Subsidiaries (the "Information"). Notwithstanding the foregoing, the
-----------
Agent and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents, attorneys and
representatives in connection with its participation in any of the transactions
evidenced by this Credit Agreement or any other Credit Documents or the
administration of this Credit Agreement or any other Credit Documents; (ii) to
the extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any Governmental Authority; (iii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of this Credit Agreement or any agreement entered into pursuant to
clause (iv) below, (B) becomes available to the Agent or such Lender on a non-
confidential basis from a source other than a Credit Party or (C) was available
to the Agent or such Lender on a non-confidential basis
86
prior to its disclosure to the Agent or such Lender by a Credit Party; (iv) to
any assignee or participant (or prospective assignee or participant) so long as
such assignee or participant (or prospective assignee or participant) first
specifically agrees in a writing furnished to and for the benefit of the Credit
Parties to be bound by the terms of this Section 11.14; or (v) to the extent
that the Borrower shall have consented in writing to such disclosure. Nothing
set forth in this Section 11.14 shall obligate the Agent or any Lender to return
any materials furnished by the Credit Parties.
11.15 Source of Funds.
---------------
Each of the Lenders hereby represents and warrants to the Borrower that at
least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee benefit
plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender
has disclosed to the Borrower the name of each employee benefit plan whose
assets in such account exceed 10% of the total assets of such account as of
the date of such purchase (and, for purposes of this subsection (b), all
employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets
of an insurance company's general account, such insurance company has
complied with all of the requirements of the regulations issued under
Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 Conflict.
--------
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
87
[Signature Pages to Follow]
88
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ACCESS WORLDWIDE COMMUNICATIONS, INC.
--------
By:--------------------------
Name:
Title:
GUARANTORS: ASH CREEK, INC.
----------
By:--------------------------
Name:
Title:
TLM HOLDINGS, CORP.
By:--------------------------
Name:
Title:
▇▇▇▇▇▇▇ POND, INC.
By:--------------------------
Name:
Title:
PHOENIX MARKETING GROUP (HOLDINGS), INC.
By:--------------------------
Name:
Title:
[Signatures continue.]
S-1
TELEMANAGEMENT SERVICES, INC.
By:-------------------------
Name:
Title:
HISPANIC MARKET CONNECTIONS, INC.
By:-------------------------
Name:
Title:
AM MEDICA COMMUNICATIONS, LTD.
By:--------------------------
Name:
Title:
AWWC TEXAS I, L.P.
By:--------------------------
Name:
Title:
[Signatures continue.]
S-2
LENDERS: NATIONSBANK, N.A.,
------- individually in its capacity as a
Lender and in its capacity as Agent
By:__________________________
Name:
Title:
[Signatures continue.]
S-3
FLEET BANK, N.A.
By:--------------------------
Name:
Title:
[Signatures continue.]
S-4
SUMMIT BANK
By:---------------------------
Name:
Title:
[Signatures continue.]
S-5
EUROPEAN AMERICAN BANK
By:------------------------------
Name:
Title:
[Signatures end.]
S-6
Schedule 2.1(a)
---------------
Schedule of Lenders and Commitments
Revolving Revolving Term Term Loan LOC
Committed Commitment Loan Commitment Committed
Lender Amount Percentage Commitment Percentage Amount
------ --------- ---------- ---------- ---------- ---------
NationsBank, N.A. $15,384,615.39 38.46153847% $9,615,384.61 38.46153847% $1,923,076.92
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, 15th
Floor NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet Bank, N.A. $12,307,692.31 30.76923077% $ 7,692,307.69 30.76923077% $1,538,461.54
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Summit Bank $6,153,846.15 15.38461538% $3,846,153.85 15.38461538% $769,230.77
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
European American Bank $6,153,846.15 15.38461538% $3,846,153.85 15.38461538% $769,230.77
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
______________ ___________ ______________ ____________ _____________
Total $40,000,000.00 100.00% $25,000,000.00 100.00% $5,000,000.00
Schedule 2.1(b)(i)
------------------
FORM OF NOTICE OF BORROWING
NationsBank, N.A. NationsBank, N.A.,
as Agent for the Lenders as Swingline Lender
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, 15th Floor Independence Center, 15th Floor
NC1-001-15-04 NC1-001-15-04
Charlotte, North Carolina 28255 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services Attention: Agency Services
RE: Credit Agreement dated as of March 12, 1999 (as amended and modified,
the "Credit Agreement") among Access Worldwide Communications, Inc.,
------ ---------
the Guarantors and Lenders identified therein and NationsBank, N.A.,
as Agent. Terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for Revolving Loan pursuant to
Section 2.1(b) of the Credit Agreement or of a request for Swingline Loan
pursuant to Section 2.3(b) of the Credit Agreement as follows:
________ Revolving Loan
________ Swingline Loan
(A) Date of Borrowing _______________________________
(which is a Business Day)
(B) Principal Amount of
Borrowing _______________________________
(C) Interest rate basis _______________________________
(D) Interest Period and the
last day thereof _______________________________
In accordance with the requirements of Section 5.2 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit Agreement
and the other Credit Documents are true and correct in all material respects as
of the date of this request, and will be true and correct after giving effect to
the requested Extension of Credit (except for those which expressly related to
an earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Extension of Credit.
(c) All conditions set forth in Section 2.1 as to the making of Revolving
Loans or in Section 2.3 as to the making of Swingline Loans, as appropriate,
have been satisfied.
Very truly yours,
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:----------------------------
Name:
Title:
4
Schedule 2.1(e)
---------------
FORM OF REVOLVING NOTE
_________, 1999
FOR VALUE RECEIVED, the undersigned Borrower hereby promises to pay to the
order of ______________________, its successors and assigns, on or before the
Termination Date to the office of the Agent in immediately available funds as
provided in the Credit Agreement,
(i) in the case of Revolving Loans, such Lender's Revolving Committed
Amount or, if less, the aggregate unpaid principal amount of all Revolving
Loans owing to such Lender; and
(ii) in the case of Swingline Loans, if such lender is the Swingline
Lender, the Swingline Committed Amount or, if less, the aggregate unpaid
principal amount of all Swingline Loans owing to the Swingline Lender;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Credit Agreement
dated as of March 12, 1999 (as amended and modified, the "Credit Agreement")
----------------
among Access Worldwide Communications, Inc., a Delaware corporation, the
Guarantors and Lenders identified therein and NationsBank, N.A., as Agent.
Terms used but not otherwise defined herein shall have the meanings provided in
the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
--------
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by this
Note may, or shall, become immediately due and payable as provided in the Credit
Agreement without presentment, demand, protest or notice of any kind, all of
which are waived by the undersigned Borrower. In the event payment of amounts
evidenced by this Note is not made at any stated or accelerated maturity, the
undersigned Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys' fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in accordance
with, the law of the State of North Carolina.
5
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
ACCESS WORLDWIDE COMMUNICATIONS, INC.,
a Delaware corporation
By:-------------------------------
Name:
Title:
6
Schedule 2.2(b)
---------------
Form of Notice of Request for Letter of Credit
[Date]
NationsBank, N.A. NationsBank, N.A.
as Issuing Lender under the as Agent under the
Credit Agreement referred to below Credit Agreement referred to below
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, 15th Floor Independence Center, 15th Floor
NC1-001-15-04 NC1-001-15-04
Charlotte, North Carolina 28255 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Re: Credit Agreement dated as of March 12, 1999 (as amended and
modified, the "Credit Agreement") among Access Worldwide
Communications, Inc., the Guarantors and Lenders identified therein
and NationsBank, N.A., as Agent. Terms used but not otherwise
defined herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned, pursuant to Section 2.2(b) of the Credit Agreement, hereby
requests that the following Letter of Credit be issued on [Date] as follows:
(1) Account Party:
(2) For use by:
(3) Beneficiary:
(4) Face Amount of Letter of Credit:
(5) Date of Issuance:
Delivery of Letter of Credit should be made as follows:
In accordance with the requirements of Section 5.2 of the Credit Agreement,
the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit Agreement
and the other Credit Documents are true and correct in all material respects as
of the date of this request, and will be true and correct after giving effect to
the requested Extension of Credit (except for those which expressly relate to an
earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Extension of Credit.
7
(c) All conditions set forth in Section 2.2 as to the issuance of a Letter
of Credit have been satisfied.
Very truly yours,
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:_________________________________
Name:
Title:
8
Schedule 2.4(d)
---------------
FORM OF TERM NOTE
$__________ _________, 1999
FOR VALUE RECEIVED, the undersigned Borrower, hereby promises to pay to the
order of ______________________, and its successors and assigns, in such amounts
and on such dates as set forth in the Credit Agreement to the office of the
Agent in immediately available funds as provided in the Credit Agreement, such
Lender's Term Loan Committed Amount, together with interest thereon at the rates
and as provided in the Credit Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement
dated as of March 12, 1999 (as amended and modified, the "Credit Agreement")
----------------
among Access Worldwide Communications, Inc., a Delaware corporation, the
Guarantors and Lenders identified therein and NationsBank, N.A., as Agent.
Terms used but not otherwise defined herein shall have the meanings provided in
the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
--------
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by this
Note may, or shall, become immediately due and payable as provided in the Credit
Agreement without presentment, demand, protest or notice of any kind, all of
which are waived by the undersigned Borrower. In the event payment of amounts
evidenced by this Note is not made at any stated or accelerated maturity, the
undersigned Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys' fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in accordance
with, the law of the State of North Carolina.
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
ACCESS WORLDWIDE COMMUNICATIONS, INC.,
a Delaware corporation
By:----------------------------------
Name:
Title:
9
Schedule 3.2
-------------
Form of Notice of Extension/Conversion
NationsBank, N.A.,
as Agent for the Lenders
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Re: Credit Agreement dated as of March 12, 1999 (as amended and modified,
the "Credit Agreement") among Access Worldwide Communications, Inc.,
----------------
the Guarantors and Lenders identified therein and NationsBank, N.A.,
as Agent. Terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 3.2 of the Credit
Agreement that it requests an extension or conversion of a Loan outstanding
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such extension or conversion is requested to be made:
________ Revolving Loan
________ Term Loan
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period) _______________________________
(B) Principal Amount of
Extension or Conversion _______________________________
(C) Interest rate basis _______________________________
(D) Interest Period and the
last day thereof _______________________________
In accordance with the requirements of Section 5.2 of the Credit Agreement,
the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit Agreement
and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Extension of Credit (except for those which
expressly relate to an earlier date).
10
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Extension of Credit.
(d) All conditions set forth in Section 2.1 as to the making of Revolving
Loans or in Section 2.3 as to the making of Swingline Loans, as
appropriate, have been satisfied.
Very truly yours,
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:__________________________________
Name:
Title:
11
Schedule 5.1(g)(v)
------------------
Secretary's Certificate
Pursuant to Section 5.1(g)(v) of the Credit Agreement (the "Credit
------
Agreement"), dated as of March __, 1999, among Access Worldwide Communications,
---------
Inc., a Delaware corporation, the Guarantors and Lenders identified therein and
NationsBank, N.A., as Agent, the undersigned ) ___________________________
Secretary of ____________________ (the "Corporation") hereby certifies as
-----------
follows:
1. Attached hereto as Annex I is a true and complete copy of resolutions
duly adopted by the Board of Directors of the Corporation on
_______________________, 199_. The attached resolutions have not been rescinded
or modified and remain in full force and effect. The attached resolutions are
the only corporate proceedings of the Corporation now in force relating to or
affecting the matters referenced to therein.
2. Attached hereto as Annex II is a true and complete copy of the By-laws
of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto as in
effect on the date hereof.
4. The following persons are now duly elected and qualified officers of
the Corporation, holding the offices indicated, and the signature appearing
opposite his name below is his true and genuine signature, and such officer is
duly authorized to execute and deliver on behalf of the Corporation, the Credit
Agreement, the Notes to be issued pursuant thereto and the other Credit
Documents and to act as a Responsible Officer on behalf of the Corporation under
the Credit Agreement.
Name Office Signature
---- ------ ---------
________________________
________________________
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
_____________________________
Secretary
(CORPORATE SEAL)
Date: _______________________, 1999
I, _____________________, ___________________ of _________________________,
hereby certify that _____________________, whose genuine signature appears
above, is, and has been at all
12
times since ______________________, a duly elected, qualified and acting
____________________ of _______________________________________.
_______________________________ of
__________________________________
______________________________, 1999
13
Schedule 6.6
-------------
Description of Legal Proceedings
14
Schedule 6.8
------------
Existing Liens
15
Schedule 6.14
--------------
Subsidiaries
16
Schedule 7.2(b)
---------------
Form of Officer's Compliance Certificate
This Certificate is delivered in accordance with the provisions of Section
7.2(b) of that Credit Agreement dated as of March 12, 1999 (as amended, modified
and supplemented, the "Credit Agreement") among Access Worldwide Communications,
----------------
Inc., a Delaware corporation, the Guarantors and Lenders identified therein, and
NationsBank, N.A., as Agent. Terms used but not otherwise defined herein shall
have the same meanings provided in the Credit Agreement.
The undersigned, being a Responsible Officer of Access Worldwide
Communications, Inc., a Delaware corporation, hereby certifies, in my official
capacity and not in my individual capacity, that to the best of my knowledge and
belief:
(a) the financial statements accompanying this Certificate fairly present
the financial condition of the parties covered by such financial statements in
all material respects;
(b) during the period the Credit Parties have observed or performed all of
their covenants and other agreements in all material respects, and satisfied in
all material respects every material condition, contained in this Credit
Agreement to be observed, performed or satisfied by them;
(c) the undersigned has no actual knowledge of any Default or Event of
Default; and
(d) detailed calculations demonstrating compliance with the financial
covenants set out in Section 7.9 of the Credit Agreement accompanying this
Certificate.
This the _______________ day of ________________________, 199_.
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:___________________________________
Name:
Title:
17
Attachment to Officer's Certificate
-----------------------------------
Computation of Financial Covenants
18
Schedule 7.11-1
---------------
Form of Joinder Agreement
THIS JOINDER AGREEMENT (the "Agreement"), dated as of ___________________,
---------
199_, is by and between _______________________, a __________________ (the
"Applicant Guarantor"), and NATIONSBANK, N.A., in its capacity as Agent under
--------------------
that certain Credit Agreement dated as of March 12, 1999 (as amended and
modified, the "Credit Agreement") by and among Access Worldwide Communications,
----------------
Inc., a Delaware corporation, the Guarantors and Lenders identified therein and
NationsBank, N.A., as Agent. All of the defined terms in the Credit Agreement
are incorporated herein by reference.
The Applicant Guarantor has indicated its desire to become a Guarantor or
is required by the terms of Section 7.11 of the Credit Agreement to become a
Guarantor under the Credit Agreement.
Accordingly, the Applicant Guarantor hereby agrees as follows with the
Agent for the benefit of the Lenders:
1. The Applicant Guarantor hereby acknowledges, agrees and confirms that,
by its execution of this Agreement, the Applicant Guarantor will be deemed to be
a party to the Credit Agreement and a "Guarantor" for all purposes of the Credit
Agreement and the other Credit Documents, and shall have all of the obligations
of a Guarantor thereunder as if it had executed the Credit Agreement and the
other Credit Documents. The Applicant Guarantor agrees to be bound by all of
the terms, provisions and conditions contained in the Credit Documents,
including without limitation (i) all of the affirmative and negative covenants
set forth in Sections 7 and 8 of the Credit Agreement and (ii) all of the
undertakings and waivers set forth in Section 4 of the Credit Agreement.
Without limiting the generality of the foregoing terms of this paragraph 1, the
Applicant Guarantor hereby (A) jointly and severally together with the other
Guarantors, guarantees to each Lender, the Agent and the Issuing Lender as
provided in Section 4 of the Credit Agreement, the prompt payment and
performance of the Guaranteed Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof,
(B) agrees that if any of the Guaranteed Obligations are not paid or performed
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the Applicant
Guarantor will, jointly and severally together with the other Guarantors,
promptly pay and perform the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal, (C) grants to the Agent a security interest in its
Collateral as referred in, and pursuant to the terms of, the Security Agreement,
and (D) pledges and grants a security interest to the Agent in the Pledged Stock
identified in Schedule A attached and the other Collateral as referred in, and
----------
pursuant to the terms of, the Pledge Agreement.
2. The Applicant Guarantor acknowledges and confirms that it has received
a copy of the Credit Agreement and the Schedules and Exhibits thereto. The
information on the Schedules to the Credit Agreement, the Security Agreement and
the Pledge Agreement are amended to provide the information shown on the
attached Schedule A.
----------
19
3. The Applicant Guarantor hereby waives acceptance by the Agent and the
Lenders of the guaranty by the Applicant Guarantor under Section 4 of the Credit
Agreement upon the execution of this Joinder Agreement by the Applicant
Guarantor.
4. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
5. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the Applicant Guarantor has caused this Joinder
Agreement to be duly executed by its authorized officers, and the Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
APPLICANT GUARANTOR
By: ______________________________
Name:
Title:
Address for Notices:
Attn:
Telephone:
Telecopy:
Acknowledged and accepted:
NATIONSBANK, N.A., as Agent
By: ______________________________
Name:
Title:
20
Schedule A
----------
to
Joinder Agreement
Schedule 1 to Security Agreement
--------------------------------
Chief Executive Office and Locations of Collateral
Chief Executive Locations of Record
Applicant Guarantor Office Collateral Owner
------------------- ------ ---------- -----
Schedule 1 to Pledge Agreement
------------------------------
Description of Pledged Shares
No. of Certificate
Pledgor/Applicant Guarantor Issuer Shares No. Percentage
--------------------------- ------ ------ --- ----------
Schedule 8.1
------------
Indebtedness
Schedule 8.5
------------
Existing Investments
Schedule 11.1
-------------
Schedule of Lenders' Addresses
Schedule 11.3(b)
----------------
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of ________, 199_ is entered into
between THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE "ASSIGNOR" (the
"Assignor") and THE PARTIES IDENTIFIED ON THE SIGNATURE PAGES AS "ASSIGNEES"
---------
("Assignee").
----------
Reference is made to that Credit Agreement dated as of March 12, 1999 (as
amended and modified, the "Credit Agreement") among Access Worldwide
----------------
Communications, Inc., a Delaware corporation (the "Borrower"), the Guarantors
--------
and Lenders identified therein and NationsBank, N.A., as Agent. Terms defined
in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignees, and the Assignees hereby purchase and assume, without recourse, from
the Assignor, effective as of the Effective Date shown below, those rights and
interests of the Assignor under the Credit Agreement identified below (the
"Assigned Interests"), including the Obligations and Commitments relating
-------------------
thereto, together with unpaid interest and fees relating thereto accruing from
the Effective Date. The Assignor represents and warrants that it owns interests
assigned hereby free and clear of liens, encumbrances or other claims. Each of
the Assignees represents that it is an assignee permitted under Section 11.3 of
the Credit Agreement. The Assignor and each of the Assignees hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 11.3 of the Credit Agreement, a copy of which has been received
by each such party. From and after the Effective Date (i) each Assignee, if it
is not already a Lender under the Credit Agreement, shall be a party to and be
bound by the provisions of the Credit Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) each Assignor shall, to the extent
of the interests assigned by this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement (other
than the rights of indemnification referenced in Section 11.9 of the Credit
Agreement). Schedule 2.1(a) is deemed modified and amended to the extent
---------------
necessary to give effect to this Assignment.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of North Carolina.
3. Terms of Assignment
(a) Date of Assignment: ___________, 199__
(b) Legal Name of Assignor: SEE SIGNATURE PAGE
(c) Legal Name of Assignee: SEE SIGNATURE PAGE
(d) Effective Date of Assignment: ___________, 199__
See Schedule I attached for a description of the Loans, Obligations and
----------
Commitments (and the percentage interests therein and relating thereto) which
are the subject of this Assignment and Acceptance.
4. The fee payable to the Agent in connection with this Assignment is
enclosed.
IN WITNESS WHEREOF, the parties hereto have caused the execution of this
instrument by their duly authorized officers as of the date first above written.
ASSIGNOR: ASSIGNEE:
-------- --------
By:________________________ By:_________________________
Name: Name:
Title: Title:
Address for Notices:
-------------------
ACKNOWLEDGMENT AND CONSENT
--------------------------
NATIONSBANK, N.A. ACCESS WORLDWIDE COMMUNICATIONS, INC.
as Agent
By:___________________________ By:_________________________
Name: Name:
Title: Title:
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
ACCESS WORLDWIDE COMMUNICATIONS, INC.
REVOLVING LOANS, TERM LOANS AND LETTERS OF CREDIT PRIOR TO ASSIGNMENT
Revolving Revolving Revolving Term Term Loan Term LOC LOC
Committed Commitment Loans Loan Commitment Loans Committed Obligations
Amount Percentage Outstanding Commitment Percentage Outstanding Amount Outstanding
--------- ---------- ----------- ---------- ---------- ----------- --------- -----------
ASSIGNOR
--------
ASSIGNEES
---------
-------------------------------------------------------------------------------------------------
$ $ $ $
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
ACCESS WORLDWIDE COMMUNICATIONS, INC.
REVOLVING LOANS, TERM LOANS AND LETTERS OF CREDIT INTERESTS SUBJECT TO THIS
ASSIGNMENT
Revolving Revolving Revolving Term Term Loan Term LOC LOC
Committed Commitment Loans Loan Commitment Loans Committed Obligations
Amount Percentage Outstanding Commitment Percentage Outstanding Amount Outstanding
--------- ---------- ----------- ---------- ---------- ----------- --------- -----------
ASSIGNOR
-----------
ASSIGNEES
-----------
-------------------------------------------------------------------------------------------------
$ $ $ $
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
ACCESS WORLDWIDE COMMUNICATIONS, INC.
REVOLVING LOANS, TERM LOANS AND LETTERS OF CREDIT AFTER ASSIGNMENT
Revolving Revolving Revolving Term Term Loan Term LOC LOC
Committed Commitment Loans Loan Commitment Loans Committed Obligations
Amount Percentage Outstanding Commitment Percentage Outstanding Amount Outstanding
--------- ---------- ----------- ---------- ---------- ----------- --------- -----------
ASSIGNOR
--------
ASSIGNEES
---------
-------------------------------------------------------------------------------------------------
$ $ $ $
8
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
ACCESS WORLDWIDE COMMUNICATIONS, INC.
REVOLVING LOANS, TERM LOANS AND LETTERS OF CREDIT AFTER ASSIGNMENT
Revolving Revolving Revolving Term Term Loan Term LOC LOC
Committed Commitment Loans Loan Commitment Loans Committed Obligations
Amount Percentage Outstanding Commitment Percentage Outstanding Amount Outstanding
--------- ---------- ----------- ---------- ---------- ----------- --------- -----------
ASSIGNOR
--------
ASSIGNEES
---------
-------------------------------------------------------------------------------------------------
$ $ $ $
9