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EXHIBIT 10.11
CREDIT AGREEMENT,
DATED AS OF MARCH 27, 1998,
BY AND AMONG
ALLIED BUS CORP.
(TO BE KNOWN AS GLOBAL VACATION GROUP, INC.
ON AND AFTER THE NAME CHANGE REFERRED TO HEREIN)
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
BNY CAPITAL MARKETS, INC.,
AS ARRANGER
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION ..................... 1
1.1. Definitions .................................................. 1
1.2. Accounting Terms ............................................ 22
1.3. Rules of Interpretation ..................................... 22
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT ................... 23
2.1. Loans ....................................................... 23
2.2. Procedure for Borrowing ..................................... 23
2.3. Termination or Reduction of Commitments ..................... 24
2.4. Scheduled Repayments of Term Loans; Prepayments
of Loans; Commitment Reductions ............................. 25
2.5. Letters of Credit ........................................... 28
2.6. Payments; Pro Rata Treatment and Sharing of
Set-offs .................................................... 31
2.7. Cash Collateral Account ..................................... 32
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC. .................... 33
3.1. Interest Rate and Payment Dates ............................. 33
3.2. Fees ........................................................ 34
3.3. Conversions ................................................. 35
3.4. Concerning Interest Periods ................................. 36
3.5. Funding Loss ................................................ 36
3.6. Increased Costs; Illegality, etc. ........................... 37
3.7. Taxes ....................................................... 38
3.8. Register .................................................... 39
ARTICLE 4. REPRESENTATIONS AND WARRANTIES ............................. 40
4.1. Organization and Power ...................................... 40
4.2. Authorization; Enforceability ............................... 40
4.3. Approvals; No Conflicts ..................................... 40
4.4. Financial Condition; No Material Adverse Change ............. 41
4.5. Properties, etc. ............................................ 41
4.6. Litigation .................................................. 42
4.7. Environmental Matters ....................................... 42
4.8. Compliance with Laws and Agreements; No Default ............. 43
4.9. Investment Companies and other Regulated
Entities .................................................... 43
4.10. Federal Reserve Regulations ................................ 43
4.11. ERISA ...................................................... 43
4.12. Taxes ...................................................... 44
4.13. Subsidiaries ............................................... 44
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4.14. Absence of Certain Restrictions ............................ 44
4.15. Labor Relations ............................................ 45
4.16. Insurance .................................................. 45
4.17. No Misrepresentation ....................................... 45
4.18. Transaction Documents ...................................... 45
4.19. Financial Condition ........................................ 45
4.20. Year 2000 .................................................. 45
4.21. Material Agreements ........................................ 46
ARTICLE 5. CONDITIONS TO FIRST EXTENSION OF CREDIT .................... 46
5.1. Evidence of Action .......................................... 46
5.2. This Agreement .............................................. 46
5.3. Notes ....................................................... 46
5.4. Opinion of Counsel to the Loan Parties ...................... 47
5.5. Security Documents, Search Reports, etc. .................... 47
5.6. Allied Recapitalization; Officer's Certificate .............. 47
5.7. Allied Recapitalization Documents ........................... 48
5.8. Legal and Capital Structure ................................. 48
5.9. Absence of Material Adverse Change .......................... 48
5.10. Compliance Certificate ..................................... 48
5.11. Leverage Ratio ............................................. 48
5.12. Solvency Certificate ....................................... 48
5.13. Property, Public Liability and Other
Insurance .................................................. 49
5.14. Fees ....................................................... 49
5.15. Other Documents ............................................ 49
ARTICLE 6. CONDITIONS TO EACH TERM LOAN AND EACH OTHER
EXTENSION OF CREDIT ........................................ 49
6.1. Term Loans after Effective Date ............................. 49
6.2. All Extension of Credit ..................................... 49
ARTICLE 7. AFFIRMATIVE COVENANTS ...................................... 50
7.1. Financial Statements and Information ........................ 50
7.2. Notice of Material Events ................................... 52
7.3. Existence: Conduct of Business .............................. 53
7.4. Payment of Obligations ...................................... 53
7.5. Maintenance of Properties ................................... 53
7.6. Insurance ................................................... 53
7.7. Books and Records: Inspection Rights ........................ 54
7.8. Compliance with Laws ........................................ 54
7.9. Additional Subsidiaries ..................................... 54
7.10. Additional Collateral ...................................... 55
7.11. Hedging Agreements ......................................... 55
7.12. Classic Mortgages .......................................... 55
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7.13. Existing Letters of Credit ................................. 56
ARTICLE 8. NEGATIVE COVENANTS ......................................... 56
8.1. Indebtedness ................................................ 56
8.2. Negative Pledge ............................................. 57
8.3. Fundamental Changes ......................................... 58
8.4. Investments, Loans, Advances and Guarantees ................. 59
8.5. Acquisitions ................................................ 60
8.6. Dispositions ................................................ 62
8.7. Restricted Payments ......................................... 63
8.8. Hedging Agreements .......................................... 63
8.9. Sale and Lease-Back Transactions ............................ 64
8.10. Lines of Business .......................................... 64
8.11. Transactions with Affiliates ............................... 64
8.12. Use of Proceeds ............................................ 64
8.13. Restrictive Agreements ..................................... 64
8.14. Financial Covenants ........................................ 65
ARTICLE 9. DEFAULTS ................................................... 67
9.1. Events of Default ........................................... 67
9.2. Contract Remedies ........................................... 69
ARTICLE 10. THE ADMINISTRATIVE AGENT .................................. 70
10.1. Appointment ................................................ 70
10.2. Individual Capacity ........................................ 71
10.3. Exculpatory Provisions ..................................... 71
10.4. Reliance by Administrative Agent ........................... 71
10.5. Reliance by Administrative Agent ........................... 72
10.6. Resignation; Successor Administrative Agent ................ 72
10.7. Non-Reliance on Other Credit Parties ....................... 72
ARTICLE 11. OTHER PROVISIONS .......................................... 73
11.1. Amendments and Waivers ..................................... 73
11.2. Notices .................................................... 74
11.3. Survival ................................................... 75
11.4. Expenses; Indemnity ........................................ 75
11.5. Successors and Assigns ..................................... 76
11.6. Counterparts; Integration .................................. 77
11.7. Severability ............................................... 77
11.8. GOVERNING LAW .............................................. 78
11.9. Jurisdiction; Service of Process ........................... 78
11.10. WAIVER OF TRIAL BY JURY ................................... 78
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Credit Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Opinion of Counsel to the Loan Parties
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Security Agreement
Exhibit H Form of Subsidiary Guarantee
Exhibit I Form of Intercompany Subordination Agreement
SCHEDULES
Schedule 2.5 List of Existing Letters of Credit Issued by The Bank of
New York
Schedule 4.3 Exceptions to Section 4.3 (Consents and Approvals)
Schedule 4.4(a) Exceptions to Section 4.4(a) (Historical Allied
Financial Statements)
Schedule 4.6 List of Litigation
Schedule 4.7 List Environmental Matters
Schedule 4.13 List of Subsidiaries; Capitalization
Schedule 4.17 List of Insurance
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.4 List of Existing Investments
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CREDIT AGREEMENT, dated as of March 27, 1998, by and among ALLIED BUS
CORP., a New York corporation, to be known as Global Vacation Group, Inc. on and
after the Name Change (the "BORROWER"), the several banks and other parties from
time to time parties hereto (the "LENDERS") and THE BANK OF NEW YORK ("BNY"), as
administrative agent for each of the other Credit Parties hereto (in such
capacity, the "ADMINISTRATIVE AGENT").
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION
1.1. DEFINITIONS
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR ADVANCES" means the Loans (or any portions thereof), at such
time as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"ACCOUNTANTS" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP (or any successor thereto),
or such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
"ACQUISITION" has the meaning set forth in Section 8.5.
"ACQUISITION CONSIDERATION" has the meaning set forth in Section
8.5(c).
"ADDITIONAL PLEDGE AGREEMENT" has the meaning set forth in Section
7.9.
"ADJUSTED NET CASH PROCEEDS" means, with respect to any Disposition
as of any date of determination, the amount equal to the difference between (i)
the Net Cash Proceeds from such Disposition, and (ii) the Reinvested Proceeds in
connection with such Disposition.
"ADVANCE" means an ABR Advance or a Eurodollar Advance.
"AFFILIATE" means as to any Person (i) any other Person at the time
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person, (ii) any other Person of which such Person at
the time owns, or has the right to acquire, directly or indirectly, ten percent
(10%) or more on a consolidated basis of the equity or beneficial interest of
such Person, (iii) any other Person which at the time owns, or has the right to
acquire, directly or indirectly, ten percent (10%) or more of any class of the
capital stock or beneficial interest of such Person, (iv) any executive officer,
director or trustee of such Person, and (v) when used with respect to an
individual, a spouse,
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any ancestor or descendant, or any other relative (by blood, adoption or
marriage), within the third degree of such individual, provided, however, that
for purposes of this Agreement, Persons in which ▇▇▇▇▇▇ holds an interest which
are not engaged in the Line of Business shall not be considered Affiliates.
"AGGREGATE REVOLVING COMMITMENT" means, at any time, the sum at such
time of the Revolving Commitments of all Lenders.
"AGGREGATE REVOLVING EXPOSURE" means, at any time, the aggregate sum
at such time of the Revolving Exposures of all Lenders.
"AGGREGATE TERM EXPOSURE" means, at any time, the aggregate sum at
such time of the Term Exposures of all Lenders.
"AGREEMENT" means this Credit Agreement.
"ALLIED EQUITY DOCUMENTS" means, collectively, (i) the Allied
Shareholders Agreement, and (ii) all other equity agreements among the Allied
Recapitalization Parties and certain executives of the Borrower.
"ALLIED PARENT" means Allied Tour Holdings Corp., a New York
corporation.
"ALLIED PARENT SHAREHOLDERS" means, collectively, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"ALLIED RECAPITALIZATION" means, collectively and in the following
order, (i) the purchase by ▇▇▇▇▇▇ and, if applicable, certain other investors of
57 shares of Existing Allied Stock from Allied Parent, (ii) the redemption by
the Borrower of an additional 34 shares of Existing Allied Stock of Allied
Parent in exchange for the Allied Redemption Payment, and (iii) the exchange of
each share of Existing Allied Stock for 4,337.1 shares of New Common Stock and
390.339 shares of New Preferred Stock, in each case (x) pursuant to the Allied
Recapitalization Documents as in effect on the date hereof, and (y) in a manner
in all respects satisfactory to the Administrative Agent.
"ALLIED RECAPITALIZATION DOCUMENTS" means, collectively, (i) the
Recapitalization Agreement, dated as of March 27, 1998, among the Allied
Recapitalization Parties, (ii) the Allied Equity Documents, (iii) the Escrow
Agreement to be entered at the closing of the Allied Recapitalization among the
Allied Recapitalization Parties, and (iv) all other documents executed in
connection therewith.
"ALLIED RECAPITALIZATION PARTIES" means, collectively, the Borrower,
Allied Parent, the Allied Parent Shareholders, ▇▇▇▇▇▇ and any other any
investors which are or become party to an Allied Recapitalization Document.
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"ALLIED REDEMPTION PAYMENT" means the payment to be made to the
Allied Parent by the Borrower in exchange for 34 shares of Existing Allied Stock
in an amount not in excess of $14,746,140.
"ALLIED SHAREHOLDERS AGREEMENT" means the Shareholders Agreement,
dated as of March 27, 1998, by and among the Allied Recapitalization Parties.
"ALTERNATE BASE RATE" means on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Effective Rate in effect on
such date plus 1/2 of 1% or (ii) the Prime Rate in effect on such date.
"APPLICABLE MARGIN" means:
(a) Subject to clause (c) below, for the period from the
Effective Date through the date on which the Allied Recapitalization and at
least two of the Pending Acquisitions shall have been consummated, (i) with
respect to Loans consisting of ABR Advances, 0.75%, (ii) with respect to Loans
consisting of Eurodollar Advances and Letter of Credit Fees, 1.75%, and (iii)
with respect to the Commitment Fee, 0.375%, provided, however, that if the
Allied Recapitalization and at least two of the Pending Acquisitions shall not
have been consummated on or before May 1, 1998, the Applicable Margins for ABR
Advances, Eurodollar Advances and Letter of Credit Fees set forth in clauses
(a)(i) and (a)(ii) above shall be increased to 1.25% and 2.25%, respectively.
(b) Subject to clause (c) below, on and after the date on
which the Allied Recapitalization and at least two of the Pending Acquisitions
shall have been consummated, at all times during which the applicable period set
forth below is in effect, (i) with respect to Loans consisting of ABR Advances,
the percentage set forth below under the heading "ABR Margin" and adjacent to
such applicable period, (ii) with respect to Loans consisting of Eurodollar
Advances and Letter of Credit Fees, the percentage set forth below under the
heading "Eurodollar and LC Margin" and adjacent to such applicable period, and
(iii) with respect to the Commitment Fee, the percentage set forth below under
the heading "Commitment Fee" and adjacent to such Pricing Level:
Eurodollar
Pricing ABR and LC Commitment
Level Margin Margin Fee
----- ------ ------ ---
I 0.250% 1.250% 0.375%
II 0.500% 1.500% 0.375%
III 0.750% 1.750% 0.375%
IV 1.000% 2.000% 0.500%,
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provided that the Pricing Level on the date on which the last of the Allied
Recapitalization and such two Pending Acquisitions shall have been consummated
shall be based on the Compliance Certificate delivered pursuant to Section
8.5(g), and any changes to the Applicable Margin thereafter resulting from a
change in the Leverage Ratio shall be based upon the Compliance Certificate most
recently delivered pursuant to Section 7.1(c) or 8.5(g) and shall become
effective on the date such Compliance Certificate is delivered to the
Administrative Agent and the Lenders.
(c) Notwithstanding anything to the contrary contained in this
definition, if the Borrower shall fail to deliver to the Administrative Agent a
Compliance Certificate on or prior to any date required hereby, for purposes of
calculating the Applicable Margin, Pricing Level IV shall be in effect from and
including such date to the date of delivery to the Administrative Agent of such
Compliance Certificate.
"APPLICABLE PROCEEDS" means any and all proceeds of casualty
insurance or condemnation held by the Administrative Agent pursuant to the Loan
Documents in connection with a casualty or condemnation event for which the
conditions for use thereof by the Borrower or any Subsidiary, as set forth in
the Loan Documents, shall not have been satisfied.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an assignment and
acceptance agreement substantially in the form of Exhibit F.
"AVAILABLE DEBT AMOUNT" means, at any time, an amount equal to (a)
$2,500,000, minus (b) the sum, without duplication, of the following: (1) the
unpaid principal balance of all Indebtedness incurred pursuant to Section 8.1(e)
and 8.1(f), and (2) the fair market value of all property securing any Lien
under Section 8.2(c).
"AVAILABLE INTERCOMPANY INVESTMENT AMOUNT" means, at any time, an
amount equal to (a) $2,500,000, minus, (b) the sum of, without duplication, the
following: (1) the outstanding principal balance of all Indebtedness of each
Subsidiary which is not a Subsidiary Guarantor to the Borrower or any Subsidiary
Guarantor, (2) the outstanding principal balance of all Indebtedness of
Subsidiaries that are not Subsidiary Guarantors, to the extent that such
Indebtedness is Guaranteed by the Borrower or any Subsidiary Guarantor, (3) the
fair market value of all consideration paid by the Borrower or any Subsidiary
Guarantor on or after the Effective Date to any Subsidiary other than a
Subsidiary Guarantor in connection with any one or more of the following: (i)
any merger between a Subsidiary that is not a Subsidiary Guarantor and a
Subsidiary Guarantor, (ii) each investment by the Borrower or any Subsidiary
Guarantor in the Capital Stock of or debt issued by any Subsidiary that is not a
Subsidiary Guarantor, (iii) any purchase or acquisition between a Loan Party, as
purchaser, and a Subsidiary that is not a Subsidiary Guarantor, as seller, to
the extent that such purchase or acquisition is for more than fair market value,
(iv) sales, assignments, leases, transfers or other dispositions of any property
or assets by any Loan Party to any Subsidiary that is not a Subsidiary
Guarantor, to
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the extent that such sale, assignment, lease, transfer or other disposition is
for less than fair market value, and (v) any Restricted Payment made by a Loan
Party to a Subsidiary which is not a Subsidiary Guarantor.
"AVAILABLE OTHER INVESTMENT AMOUNT" means, at any time an amount
equal to (a) prior to the consummation of the Initial Public Offering,
$50,000,000, and on and after the consummation of the Initial Public Offering,
$75,000,000, in each case minus, (b) the sum of, without duplication, the
following: (1) the fair market value of all consideration paid by the Borrower
or any Subsidiary on or after the Effective Date in connection with any one or
more of the following: (i) any merger referred to in Section 8.3(d)(iii)(A), and
(ii) any Acquisition referred to in Section 8.5.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States.
"BORROWER OBLIGATIONS" means, collectively, (i) all of the
obligations and liabilities of the Borrower under the Loan Documents, and (ii)
all of the obligations and liabilities of the Borrower under each Secured
Hedging Agreement, in each case whether fixed, contingent, now existing or
hereafter arising, created, assumed, incurred or acquired, and whether before or
after the occurrence of any Event of Default under Section 9.1(h) or (i) and
including any obligation or liability in respect of any breach of any
representation or warranty and all post-petition interest and funding losses,
whether or not allowed as a claim in any proceeding arising in connection with
such an event.
"BORROWING DATE" means any Business Day on which (i) the Lenders
make Revolving Loans or (ii) the Issuer issues a Letter of Credit.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which commercial banks located in New York City are authorized or
required by law or other governmental action to be closed, provided that when
used in connection with a Eurodollar Advance, the term shall also exclude any
day on which banks are not open for dealings in dollar deposits in the London
interbank market.
"CAPITAL EXPENDITURES" means, for any period, the sum of the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP during such period for fixed or capital assets
(excluding any capitalized interest and any such asset acquired in connection
with normal replacement and maintenance programs properly charged to current
operations and excluding any replacement assets acquired with the proceeds of
insurance).
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination
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thereof, (a) which obligations are required to be classified and accounted for
as capital leases on a balance sheet of such Person under GAAP, and the amount
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP, or (b) which lease does not qualify as a Tax Operating
Lease. For purposes of this definition, "TAX OPERATING LEASE" means any
"synthetic lease", and any other lease (i) that is treated as a lease for
purposes of the Code, and (ii) the lessor under which is treated as the owner of
the assets subject to the lease for purposes of the Code.
"CAPITAL STOCK" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
"CASH COLLATERAL ACCOUNT" has the meaning set forth in Section 2.7.
"CASH EQUIVALENTS" means Dollar denominated investments in (i)
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 full support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits, certificates of deposit and bankers acceptances of maturing within 180
days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank having a combined capital surplus and undivided
profits of not less than $100,000,000 and whose (or whose parent company's)
unsecured non-credit supported short-term debt rating at the time of such
acquisition is the highest credit rating obtainable from S&P and ▇▇▇▇▇'▇ or, if
rated by only one such rating agency, the highest credit rating obtainable from
such rating agency, (iii) commercial paper maturing within 90 days from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from ▇▇▇▇▇'▇, (iv) marketable direct
obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or
▇▇▇▇▇'▇, (v) normal business banking accounts, and (vi) investments in money
market funds substantially all the assets of which are comprised of securities
of the types described in clauses (i) through (iv) above.
"CHANGE IN CONTROL" means the occurrence of one or more of the
following events:
(b) the acquisition directly or indirectly by any Person, or two or
more persons acting in concert, other than ▇▇▇▇▇▇, of beneficial ownership of a
percentage of the outstanding voting stock of the Borrower that exceeds in the
aggregate the percentage
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of such voting stock then beneficially owned or controlled, directly or
indirectly, by ▇▇▇▇▇▇;
(c) prior to the Initial Public Offering, the failure of (i) ▇▇▇▇▇▇
to own or control (either directly or indirectly) at least 51% of the voting
stock of the Borrower in the aggregate (on a fully diluted basis and free and
clear of all Liens), and (ii) the Borrower to own and control 100% of the
outstanding shares of voting and non-voting stock of each Subsidiary on a fully
diluted basis and free and clear of all Liens (except, in all cases, Liens in
favor of the Administrative Agent); and
(d) subsequent to the Initial Public Offering, the failure of (i)
▇▇▇▇▇▇ to own or control (either directly or indirectly) at least 40% of the
voting stock of the Borrower in the aggregate (on a fully diluted basis and free
and clear of all Liens), and (ii) the Borrower to own and control 100% of the
outstanding shares of voting and non-voting stock of each Subsidiary on a fully
diluted basis and free and clear of all Liens (except, in all cases, Liens in
favor of the Administrative Agent).
For purposes of this definition, (i) the terms "person" and "group"
shall have the respective meanings ascribed thereto in Sections 13(d) and
14(d)(2) of the Exchange Act, (ii) the term "beneficial owner" shall have the
meaning ascribed thereto in Rule 13d-3 under the Exchange Act, and (iii) the
term "voting stock" shall mean all outstanding shares of any class or classes
(however designated) of Capital Stock of the Borrower entitled to vote generally
in the election of members of the Managing Person thereof.
"CHANGE IN LAW" means (i) the adoption of any law, rule or
regulation after the Effective Date, (ii) the issuance or promulgation after the
Effective Date of any directive, guideline or request from any Governmental
Authority (whether or not having the force of law), or (iii) any change after
the Effective Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority charged with the
administration thereof.
"CLASSIC" means Classic Custom Vacations, a California corporation.
"CLASSIC ACQUISITION" means the acquisition by the Borrower of all
of the issued and outstanding Capital Stock of Classic (i) pursuant to the
Classic Acquisition Documents, and (ii) in a manner in all respects satisfactory
to the Administrative Agent.
"CLASSIC ACQUISITION DOCUMENTS" means, collectively, (i) the Stock
Purchase Agreement to be entered into among Classic, the Classic Stockholders
and ▇▇▇▇▇▇, (ii) the instrument of assignment pursuant to which ▇▇▇▇▇▇ assigns
its rights and obligations under such Stock Purchase Agreement to the Borrower,
(iii) the Classic Mortgage Purchase Documents, (iv) the Letterman Employment
Agreement to be entered into between Classic and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (v) the
Escrow Agreement to be entered at the
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closing of the Classic Acquisition among the Classic Stockholders and the
Borrower, and (vi) all other documents executed in connection therewith.
"CLASSIC MORTGAGE PURCHASE DOCUMENTS" collectively, (i) the Purchase
and Sale Agreement, Security Agreements and Notes to be to be entered at the
closing of the Classic Acquisition among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Borrower, pursuant to which such
individuals purchase the Classic Mortgages from Classic, and (ii) all other
documents executed in connection therewith.
"CLASSIC MORTGAGES" means, collectively (i) the portfolio of
approximately 1200 first and second mortgages held by Classic with respect to
residential real property located in Denmark, (ii) the portfolio of
approximately thirty first, second and third mortgages held by Classic with
respect to commercial and residential real property located in California, (iii)
all related notes or other evidence of Indebtedness, and (iv) all interest rate
and currency hedging arrangements maintained by Classic with respect thereto.
"CLASSIC STOCKHOLDERS" means, collectively, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"COLLATERAL" means any and all "Collateral", as defined in any
Security Document.
"COMMITMENTS" means, collectively, the Revolving Commitments, the
Term Loan Commitments and the Letter of Credit Commitment, each a "COMMITMENT".
"COMMITMENT FEE" has the meaning set forth in Section 3.2(a).
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section
7.1(c).
"CONVERSION DATE" means the date on which: (i) a Eurodollar Advance
is converted to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar
Advance or (iii) a Eurodollar Advance is converted to, or continued as, a new
Eurodollar Advance.
"CREDIT PARTY" means the Administrative Agent, the Issuer or a
Lender, as the case may be.
"CREDIT REQUEST" means a request for Loans or a Letter of Credit
substantially in the form of Exhibit ▇.
- ▇ -
▇▇
"▇▇▇▇▇▇▇▇▇ ▇▇▇▇" means any of the following: (i) any Lien imposed by
law for Taxes that are not yet due or are being contested in compliance with
Section 7.4, provided that enforcement of such Lien is stayed pending such
contest; (ii) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 7.4, provided that enforcement of each such
Lien is stayed pending such contest; (iii) pledges and deposits made in the
ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations; (iv)
deposits and pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the
ordinary course of business; (v) judgment liens in respect of judgments that
would not cause an Event of Default under Section 9.1(j); (vi) zoning
ordinances, easements, rights of way, minor defects, irregularities, and other
similar encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary; and (vii) Liens
created under the Loan Documents.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION" has the meaning set forth in Section 8.6.
"DISQUALIFIED STOCK" means any Capital Stock of any Person that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part prior to four years after the Maturity Date,
provided, however, that any Capital Stock that would constitute Disqualified
Stock solely because the holders thereof have the right to require such Person
to repurchase such Capital Stock upon the occurrence of certain events shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Borrower may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with Section 8.7
of this Agreement.
"DOLLARS" and "$" mean lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is not a Foreign
Subsidiary.
- 9 -
15
"EBITDA" means, for any period, an amount equal to (i) net income of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP for such period, plus (ii) the sum of, without duplication,
each of the following with respect to the Borrower and its Subsidiaries to the
extent utilized in determining such net income for such period, (a) cash
interest expense, (b) cash income taxes paid, (c) depreciation, amortization and
other non-cash charges, and (d) extraordinary losses from sales, exchanges and
other dispositions of Property not in the ordinary course of business, minus
(iii) the sum of, without duplication, each of the following with respect to the
Borrower and its Subsidiaries, to the extent utilized in determining such net
income for such period: extraordinary gains from sales, exchanges and other
dispositions of property not in the ordinary course of business; provided,
however, that, notwithstanding anything to the contrary contained herein, such
amount shall be subject to such adjustments (including adjustments with respect
to specific items referred to in clauses (i), (ii) and (iii) of this definition)
as the Borrower may request and the Administrative Agent shall approve in its
discretion exercised reasonably.
"EFFECTIVE DATE" means the date on which the conditions set forth in
Article 5 have been satisfied (or waived in accordance with Section 11.1).
"ENVIRONMENTAL LAWS" has the meaning set forth in Section 4.7.
"EQUITY CONTRIBUTIONS" means, the equity investments made in cash to
the Borrower on or after the Effective Date (other than equity investments made
with the proceeds of any payment or distribution by the Borrower or any
Subsidiary, including the Allied Redemption Payment) minus all ▇▇▇▇▇▇ Fees.
"EQUITY ISSUANCE" means the issuance of any equity securities or the
receipt of any capital contribution, in each case by the Borrower, other than
(i) any issuance of equity securities to, or receipt of any such capital
contribution from, the Borrower, (ii) the issuance of stock as consideration to
the seller in connection with a Permitted Acquisition, (iii) the issuance of any
equity securities to, or the receipt of a capital contribution from, ▇▇▇▇▇▇ or
any of its Affiliates, the proceeds of which are expended by the Borrower in
connection with such Permitted Acquisition, or (iv) the issuance of common stock
pursuant to a stock option plan, or for executive compensation, in either case
in the ordinary course of business.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA AFFILIATE" means any Person which is a member of any group of
organizations within the meaning of Sections 414(b) or (c) of the Code (or,
solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the
- 10 -
16
Code, Sections 414(m) or (o) of the Code) of which the Borrower or any
Subsidiary is a member.
"ERISA EVENT" means (i) a "reportable event", as defined in Section
4043 of ERISA with respect to a Pension Plan (other than an event for which the
30-day notice period is waived), (ii) the existence with respect to any Pension
Plan of an "accumulated funding deficiency" (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (ii) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Pension Plan; (iv)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Pension Plan;
(vi) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Pension
Plan or Pension Plans or to appoint a trustee to administer any Pension Plan;
(vii) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; or (viii) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR ADVANCES" means, collectively, the Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"EURODOLLAR RATE" means, with respect each Eurodollar Advance, a
rate of interest per annum, as determined by the Administrative Agent, obtained
by dividing (and then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%).
(a) the rate of interest per annum as determined by the
Administrative Agent, equal to the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the London interbank
eurodollar market as the rate at which BNY is offering dollar deposits in an
amount approximately equal to its Specified Percentage of such Eurodollar
Advance and having a period to maturity approximately equal to the Interest
Period applicable to such Eurodollar Advance at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves), expressed as
a decimal, established by the Board and any other banking authority to which BNY
and other major money center banks chartered under the laws of the United States
or any State thereof are subject, in respect of eurocurrency funding (currently
referred to as "eurocurrency li-
- 11 -
17
abilities" in Regulation D) without benefit of credit for proration, exceptions
or offsets which may be available from time to time to BNY.
"EVENT OF DEFAULT" has the meaning set forth in Section 9.1.
"EXCESS CASH FLOW" means, in respect of any period, (i) an amount
equal to the sum of EBITDA for such period plus Working Capital Decreases if
any, during such period less (ii) the sum of each of the following with respect
to the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP for such period: (a) Fixed Charges, (b) Capital Expenditures made during
such period, (c) Working Capital Increases, if any, during such period minus and
(c) all prepayments of the Term Loans made during such period pursuant to
Section 2.4(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"EXCLUDED TAX" means as to any Person, a Tax imposed by one of the
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, (iv) in the case of each Credit Party, any jurisdiction in which such
Credit Party is deemed to be doing business, (v) in the case of any Foreign
Credit Party, any withholding tax that is imposed on amounts payable to such
Foreign Credit Party at the time such Foreign Credit Party becomes a party to
this Agreement (or designates a new lending office) or is attributable to such
Foreign Credit Party's failure to comply with Section 3.7(c), except to the
extent that such Foreign Credit Party (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.7; which Tax (a) is any income tax or franchise tax
imposed on all or part of the net income or net profits of such Person or (b)
represents interest, fees or penalties for payment of any such income tax or
franchise tax.
"EXISTING ALLIED STOCK" means the common stock of the Borrower, no
par value, of which 100 shares are issued and outstanding immediately prior to
the Allied Recapitalization.
"EXISTING LETTERS OF CREDIT" shall have the meaning set forth in
Section 8.5(f)(i).
"EXISTING LETTER OF CREDIT EXPOSURE" means at any time, an amount
equal to the sum (without duplication) at such time of (i) the aggregate undrawn
face amount of the outstanding Existing Letters of Credit, (ii) the aggregate
amount of unpaid drafts drawn on all Existing Letters of Credit, and (iii) the
aggregate unpaid reimbursement obligations in respect thereof, provided,
however, that Existing Letters of Credit issued
- 12 -
18
for the account of a Pending Acquisition Target shall not be taken into account
for purposes of this definition until the consummation of the applicable Pending
Acquisition.
"EXTENSIONS OF CREDIT" means, collectively, the Loans, the Letters
of Credit and any participations therein pursuant to Section 2.5(c).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 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 (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by BNY as determined by BNY and reported to the
Administrative Agent.
"FEES" has the meaning set forth in Section 2.6(a).
"FINANCIAL OFFICER" means, as to any Person, the chief financial
officer or the treasurer of such Person or such other officer as shall be
satisfactory to the Administrative Agent.
"FIXED CHARGES" means, for the most recently completed twelve month
period, the sum, without duplication, of each of the following with respect to
the Borrower and the Subsidiaries for such period on a consolidated basis in
accordance with GAAP: (i) all cash interest expense, (ii) principal amounts that
became payable (whether or not paid and whether at the stated maturity, by
acceleration or by reason of optional prepayment or redemption or otherwise) by
the Borrower or any Subsidiary in respect of Indebtedness of the Borrower or the
Subsidiaries during such period, and (iii) cash income taxes paid.
"FIXED CHARGE COVERAGE RATIO" means, at any date of determination,
the ratio of (a) EBITDA for Four Quarter Trailing Period, to (b) Fixed Charges
for such period.
"FOREIGN CREDIT PARTY" means any Credit Party that is organized
under the laws of a country (or political subdivision thereof) other than the
United States.
"FOREIGN SUBSIDIARY" means any Subsidiary that is a "controlled
foreign corporation" within the meaning of Section 957 of the Code.
- 13 -
19
"FOUR QUARTER TRAILING PERIOD" means, at any date of determination,
the four fiscal quarters ending on such date, or, if such date is not the last
day of a fiscal quarter, the period of the most immediately completed four
fiscal quarters.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"GUARANTEE" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or any
Indebtedness, lease, dividend or other obligation (a "primary obligation") of
any other Person (a "primary obligor") in any manner, whether directly or
indirectly, including any obligation of the guarantor, direct or indirect (i) to
purchase any primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the beneficiary of any primary
obligation of the ability of a primary obligor to make payment of a primary
obligation, (iv) otherwise to assure or hold harmless the beneficiary of a
primary obligation against loss in respect thereof, and (v) in respect of the
liabilities of any partnership in which a secondary obligor is a general
partner, except to the extent that such liabilities of such partnership are
nonrecourse to such secondary obligor and its separate property, provided,
however, that the term "Guarantee" shall not include the endorsement of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee shall be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guarantor in good faith.
"GRANT OF SECURITY INTEREST" means a grant of a security interest in
copyrights and trademarks in the forms of Annex B-1 and B-2, respectively, to
the Security Agreement or any other form approved by the Administrative Agent.
"HADDON" means Haddon Holidays, Inc., a New Jersey corporation.
"HADDON ACQUISITION" means the acquisition by the Borrower of Haddon
(i) pursuant to the Haddon Acquisition Documents, and (ii) in a manner in all
respects satisfactory to the Administrative Agent.
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20
"HADDON ACQUISITION DOCUMENTS" means, collectively, (i) the Stock
Purchase Agreement to be entered into among Haddon, the Borrower, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (ii) the Escrow Agreement to be entered at the
closing of the Haddon Acquisition among ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and the Borrower and (iii) all other documents executed in connection
therewith.
"HEDGING AGREEMENT" means any interest rate swap, cap or collar
arrangement or any other derivative product customarily offered by banks or
other financial institutions to their customers in order to manage the exposure
of such customers to interest rate fluctuations.
"HISTORICAL ALLIED FINANCIAL STATEMENTS" has the meaning set forth
in Section 4.4(a).
"INDEBTEDNESS" means, as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
liabilities secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned by such Person (other than carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual statutory Liens arising in the ordinary
course of business), even though such Person has not assumed or otherwise become
liable for the payment thereof, (vii) Capital Lease Obligations, (viii) all
obligations of such Person in respect of Disqualified Stock, and (ix) all
Guarantees by such Person of Indebtedness of others. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. Notwithstanding
the foregoing, Indebtedness shall not include any liability of any Person with
respect to customer deposits.
"INDEMNIFIED TAX" means as to any Person, any Tax, except (i) an
Excluded Tax imposed on such Person and (ii) any interest, fees or penalties for
late payment thereof imposed on such Person.
"INITIAL PUBLIC OFFERING" means the first offering by the Borrower
of its Capital Stock to the public pursuant to an effective registration
statement under the Securi-
- 15 -
21
ties Act of 1933, as then in effect, or any comparable statement under similar
federal statute then in force with net proceeds to the Borrower of at least
$15,000,000.
"INITIAL TRANSACTIONS" means, collectively, (i) the Allied
Recapitalization, (ii) the execution and delivery of the Loan Documents and
(iii) the Extensions of Credit on the Effective Date.
"INSOLVENT" means, with respect to any Person, (a) the sum of the
assets measured on a "going concern" basis (including goodwill as accounted for
in accordance with GAAP) at a fair valuation, of such Person does not exceed its
debts, (b) such Person has incurred debts beyond its ability to pay such debts
as such debts mature, (c) such Person believes that, in the ordinary course of
its business during the reasonably foreseeable future, it will incur debts
beyond its ability to pay such debts as such debts mature, and (d) such Person
has insufficient capital with which to conduct its business. For purposes of
this definition only, "DEBT" means any liability on a claim, and "CLAIM" means
any (i) right to payment, whether such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured, or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured, unsecured,
liquidated or unliquidated.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, trade secrets, confidential or proprietary technical and business
information and other similar property and all licenses related thereto.
"INTERCOMPANY SUBORDINATION AGREEMENT" means a subordination
agreement substantially in the form of Exhibit I.
"INTEREST COVERAGE RATIO" means, as of the last day of any fiscal
quarter, the ratio of EBITDA to cash interest expense, in each case for the Four
Quarter Trailing Period.
"INTEREST PERIOD" means, as to each Eurodollar Advance, the period
commencing on, as the case may be, the Borrowing Date or Conversion Date with
respect thereto and ending one, two, three or six months thereafter, in the case
of an Interest Period commencing on or after the date on which the Syndication
Period expires, in each case, as selected by the Borrower in its Credit Request
or Notice of Conversion, provided, however, (i) until the earlier of the end of
the Syndication Period or the last day of the fourth week after the consummation
of each of the Pending Acquisitions, all Interests Periods shall end one week
after the Borrowing Date or Conversion Date applicable thereto and (ii) if the
Syndication Period has not expired on or before the last day of the fourth week
after the consummation of each of the Pending Acquisitions, until the end of
- 16 -
22
the Syndication Period, all Interests Periods shall end one month after the
Borrowing Date or Conversion Date applicable thereto.
"INVESTMENT GRADE SECURITY" means (i) in respect of a short term
security, any such security rated at least A1/P1 or A2/P2 by S&P or Moody's (or
an equivalent rating issued by a nationally recognized rating service) and (ii)
in respect of a long term security, any such security rated at least BBB- or
Baa3 by S&P or Moody's (or an equivalent rating issued by a nationally
recognized rating service), provided, however, that any derivative, option,
hedging or other speculative instrument shall not be considered to be an
Investment Grade Security.
"ISSUER" means BNY.
"LETTERS OF CREDIT" has the meaning set forth in Section 2.6.
"LETTER OF CREDIT FEES" has the meaning set forth in Section 3.2(c).
"LETTER OF CREDIT COMMITMENT" means the commitment of the Issuer to
issue Letters of Credit (including the letters of credit listed on Schedule 2.5
in which the Lenders assume a participation pursuant to Section 2.5(a)) having
an aggregate outstanding face amount up to $5,000,000.
"LETTER OF CREDIT EXPOSURE" means in respect of any Lender at any
time, an amount equal to (i) the sum (without duplication) at such time of (x)
the aggregate undrawn face amount of the outstanding Letters of Credit, (y) the
aggregate amount of unpaid drafts drawn on all Letters of Credit, and (z) the
aggregate unpaid Reimbursement Obligations, multiplied by (ii) such Lender's
Revolving Percentage at such time.
"LEVERAGE RATIO" means, as of any date, the ratio of (i) Total Debt
as of such date less to (ii) EBITDA for the Four Quarter Trailing Period,
provided, however, that, notwithstanding anything to the contrary contained
herein, for purposes of this definition, Total Debt shall not include any
Indebtedness in respect of standby letters of credit.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), or other security agreement or security
interest of any kind or nature whatsoever, including any conditional sale or
other title retention agreement and any capital or financing lease having
substantially the same economic effect as any of the foregoing.
"LINE OF BUSINESS" means, the wholesale tour operators business
serving the leisure travel industry and any business reasonably similar,
complimentary, ancillary or related thereto, including the Pending Acquisitions.
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23
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Security Documents, each Secured Hedging Agreement, each subordination agreement
entered into pursuant to Section 8.1(d) and (f) and all other agreements,
instruments and documents executed or delivered in connection herewith.
"LOAN PARTIES" means, collectively, the Borrower and each Subsidiary
Guarantor.
"LOANS" means Revolving Loans and Term Loans.
"MANAGING PERSON" means, with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"MARGIN STOCK" has the meaning set forth in Regulation U.
"MATERIAL ADVERSE" means, with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i) the business,
assets, operations, prospects or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (ii) the ability of any Loan
Party to perform its obligations under the Loan Documents to which it is a
party, (iii) the rights of, or benefits available to, the Credit Parties under
the Loan Documents, or (iv) the legality or enforceability of any Loan Document.
"MATERIAL LIABILITIES" means, on any date, with respect to the
Borrower, any Subsidiary or any combination thereof: (i) all Indebtedness (other
than Indebtedness under the Loan Documents), (ii) the net termination
obligations in respect of one or more Hedging Agreements (calculated as if such
Hedging Agreements were terminated as of such date), and (iii) other
liabilities, in each case whether as principal, guarantor, surety or other
obligor, in an aggregate principal amount exceeding (A) $100,000 until the
consummation of any two of the Pending Acquisitions and (B) $250,000 thereafter.
"MATURITY DATE" means September 30, 2004, or such earlier date on
which the Notes shall become due and payable, whether by acceleration or
otherwise.
"MINIMUM AMOUNT" means in respect of (i) ABR Advances, $500,000 or
such amount plus a whole multiple of $100,000 in excess thereof, and (ii)
Eurodollar Advances, $1,000,000 or such amount plus a whole multiple of $500,000
in excess thereof.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
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24
"MTI" means MTI Vacations, Inc., an Illinois corporation.
"MTI ACQUISITION" means the acquisition by the Borrower of
substantially all of the assets of MTI (i) pursuant to the MTI Acquisition
Documents and (ii) in a manner in all respects satisfactory to the
Administrative Agent.
"MTI ACQUISITION DOCUMENTS" means, collectively, (i) the Asset
Purchase Agreement to be entered into among MTI, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the
Borrower, (ii) the Escrow Agreement to be entered at the closing of the MTI
Acquisition among MTI, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Borrower and (iii) all other
documents executed in connection therewith.
"MULTIEMPLOYER PLAN" means a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NAME CHANGE" means the change of the name of Allied Bus Corp. to
Global Vacation Group, Inc. after the Allied Recapitalization.
"NET CASH PROCEEDS" means, cash proceeds received from a
Disposition, an Equity Issuance, the incurrence of Refinancing Debt, a casualty
loss or a condemnation after deduction of taxes payable in cash in connection
therewith and net of reasonable transaction expenses.
"NET WORTH" means, at any date of determination, (i) the sum of,
without duplication, (a) all amounts which would be included under
"shareholders' equity" or any analogous entry on a consolidated balance sheet of
the Borrower determined in accordance with GAAP as of such date plus (b) the
proceeds of an Equity Issuance to the extent not applied to the prepayment of
the Loans minus (ii) any preferred stock or other class of equity securities
(other than the New Preferred Stock) that, by its stated terms (or by the terms
of any class of equity securities issuable upon conversion thereof or in
exchange therefor), or upon the occurrence of any event, matures or is
mandatorily redeemable, or is redeemable at the option of the holders thereof,
in whole or in part prior to the date which is nine months after the Maturity
Date.
"NEW COMMON STOCK" means common stock of the Borrower, no par value,
issued as part of the Allied Recapitalization in exchange for Existing Allied
Stock.
"NEW PREFERRED STOCK" means Class A Preferred Stock of the Borrower,
$1.00 par value, issued as part of the Allied Recapitalization in exchange for
Existing Allied Stock.
"NOTES" means with respect to each Lender in respect of such
Lender's Loans, a promissory note, substantially in the form of Exhibit A,
payable to the order of
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such Lender, each such promissory note having been made by the Borrower and
dated the Effective Date, including all replacements thereof and substitutions
therefor.
"NOTICE OF CONVERSION" has the meaning set forth in Section 3.3(a).
"OTHER TAXES" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery, registration or enforcement of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents.
"ORGANIZATIONAL DOCUMENTS" means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"PAYMENT OFFICE" the office of the Administrative Agent set forth in
Section 11.2(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PENDING ACQUISITIONS" means, collectively, the Classic
Acquisitions, the MTI Acquisition and the Haddon Acquisition.
"PENDING ACQUISITION DOCUMENTS" means, collectively, the Classic
Acquisition Documents, the MTI Acquisition Documents and the Haddon Acquisition
Documents.
"PENDING ACQUISITION TARGETS" means, collectively, Classic, MTI and
Haddon.
"PENSION PLAN" means, at any date of determination, any employee
pension benefit plan (other than a Multiemployer Plan), the funding requirements
of which (under Section 302 of ERISA or Section 412 of the Code) are, or at any
time within the six years immediately preceding such date, were in whole or in
part, the responsibility of the Borrower or any ERISA Affiliate.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex A
to the Security Agreement or any other form approved by the Administrative
Agent.
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"PERMITTED ACQUISITION" means an Acquisition (including the Allied
Recapitalization and the Pending Acquisitions) permitted by Section 8.5.
"PERMITTED LIENS" has the meaning set forth in Section 8.2.
"PERSON" means a natural person, firm, partnership, limited
liability company, joint venture, corporation, association, business enterprise,
joint stock company, unincorporated association, trust, Governmental Authority
or any other entity, whether acting in an individual, fiduciary, or other
capacity, and for the purpose of the definition of "ERISA Affiliate", a trade or
business.
"PRICING LEVEL" means Pricing Level I, Pricing Level II, Pricing
Level III or Pricing Level IV, as applicable.
"PRICING LEVEL I" means the applicable Pricing Level at any time
when the Leverage Ratio is less than 2.25:1.00.
"PRICING LEVEL II" means the applicable Pricing Level at any time
when the Leverage Ratio is greater than or equal to 2.25:1.00 but less than
2.75:1.00.
"PRICING LEVEL III" means the applicable Pricing Level at any time
when the Leverage Ratio is greater than or equal to 2.75:1.00 but less than
3.25:1.00.
"PRICING LEVEL IV" means the applicable Pricing Level at any time
when the Leverage Ratio is greater than or equal to 3.25:1.00.
"PRIME RATE" means the rate of interest per annum publicly announced
in New York City by BNY from time to time as its prime commercial lending rate,
such rate to be adjusted automatically (without notice) on the effective date of
any change in such publicly announced rate.
"REGULATION D, G, T, U AND X" mean Regulations D, G, T, U and X,
respectively, of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"REFINANCING DEBT" has the meaning set forth in Section 8.1(g).
"REFINANCING DEBT DOCUMENTS" has the meaning set forth in Section
8.1(g).
"REIMBURSEMENT OBLIGATION" means, collectively, the obligation of
the Borrower to the Issuer with respect to each Letter of Credit and all
documents, instruments and other agreements related thereto, including the
obligation of the Borrower to reimburse the Issuer for amounts drawn under such
Letter of Credit.
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"REINVESTED PROCEEDS" means, with respect to any Disposition as of
any date of determination, the amount of Net Cash Proceeds from such Disposition
that is used by the Borrower or any Subsidiary to acquire, during the
Reinvestment Period with respect to such Disposition, property that is to be
used in the Line of Business.
"REINVESTMENT PERIOD" means the period beginning on the date that
proceeds from a Disposition are received by the Borrower or any Subsidiary, as
the case may be, and ending 365 days after the receipt of such proceeds.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, one or more Lenders having
the sum of unused Revolving Commitments, unused Term Loan Commitments, Revolving
Exposures and Term Exposures greater than or equal to 51% of the sum of the
unused Aggregate Revolving Commitments, unused Aggregate Term Loan Commitments,
Aggregate Revolving Exposures and Aggregate Term Exposures.
"RESTRICTED PAYMENT" has the meaning set forth in Section 8.7.
"REVOLVING COMMITMENT" means, in respect of any Lender, the maximum
amount of such Lender's Revolving Exposure as set forth on the signature page of
such Lender under the heading "REVOLVING COMMITMENT" or in an Assignment and
Acceptance Agreement or other document pursuant to which it became a Lender, as
such amount may be adjusted from time to time in accordance herewith.
"REVOLVING COMMITMENT TERMINATION DATE" means September 30, 2004, or
such earlier date upon which either the Revolving Commitments shall terminate or
the Aggregate Revolving Commitment shall otherwise equal zero.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any
date, the sum as of such date of (i) the outstanding principal balance of such
Lender's Revolving Loans, plus (ii) such Lender's Letter of Credit Exposure.
"REVOLVING LOAN" and "REVOLVING LOANS" have the meaning set forth in
Section 2.1(a).
"REVOLVING PERCENTAGE" means, as of any date and with respect to
each Lender, the percentage equal to a fraction (i) the numerator of which is
the Revolving Commitment of such Lender on such date (or, if there are no
Revolving Commitments on such date, on the last date upon which one or more
Revolving Commitments were in effect), and (ii) the denominator of which is sum
of the Revolving Commitments of all
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Lenders on such date (or, if there are no Revolving Commitments on such date, on
the last date upon which one or more Revolving Commitments were in effect).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"SECURED HEDGING AGREEMENT" means any Hedging Agreement entered into
by the Borrower with a counterparty that was a Lender (or an Affiliate thereof)
at the time such Hedging Agreement was entered into.
"SECURED PARTIES" has the meaning set forth in the Security
Agreement.
"SECURITY AGREEMENT" means the Security Agreement, by and among the
Loan Parties party thereto and the Administrative Agent, substantially in the
form of Exhibit G.
"SECURITY DOCUMENTS" means, collectively, (i) upon the execution and
delivery thereof, the Security Agreement, the Subsidiary Guarantee, the Grants
of Security Interest, the Intercompany Subordination Agreement and (ii) all
other instruments and documents delivered pursuant to Section 7.9 or 7.10 to
secure any of the Borrower Obligations or Guarantor Obligations (as defined in
the Subsidiary Guarantee).
"SPECIAL COUNSEL" means ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, as, or such
other counsel selected by the Administrative Agent as, special counsel to the
Administrative Agent hereunder.
"SPECIFIED PERCENTAGE" means, with respect to any Lender (i) in
connection with Revolving Loans and Eurodollar Advances to the extent consisting
of Revolving Loans, the percentage equal to such Lender's Revolving Commitment
at such time divided by the Aggregate Revolving Commitment at such time, and
(ii) in connection with Term Loans and Eurodollar Advances to the extent
consisting of Term Loans, the percentage equal to the unpaid principal amount of
such Lender's Term Exposure at such time divided by the Aggregate Term Exposure
at such time.
"SUBSIDIARY" means, with respect to any Person (the "parent") at any
date, any other Person (i) the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, (ii)
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests or more than 50%
of the profits or losses of which are, as of such date, owned,
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controlled or held by the parent or one or more subsidiaries of the parent.
Unless otherwise qualified, all references to "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTOR" means each Subsidiary party to the Subsidiary
Guarantee.
"SUBSIDIARY GUARANTEE" means the Subsidiary Guarantee, by and among
the Subsidiary Guarantors, the Borrower and the Administrative Agent,
substantially in the form of Exhibit H.
"SYNDICATION PERIOD" means the period commencing on the Effective
Date and ending on the day on which the Administrative Agent notifies the
Borrower in writing that the syndication of this Agreement has been completed.
"TAX" means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"TERM EXPOSURE" means, with respect to any Lender as of any date,
the sum as of such date of the outstanding principal balance of such Lender's
Term Loans.
"TERM LOAN" and "TERM LOANS" have the meaning set forth in Section
2.1(b).
"TERM LOAN COMMITMENT" means, in respect of any Lender, the amount
set forth on the signature page of such Lender under the heading "TERM LOAN
COMMITMENT" or in an Assignment and Acceptance Agreement or other document
pursuant to which it became a Lender, as such amount may be adjusted from time
to time in accordance herewith.
"TERM LOAN COMMITMENT TERMINATION DATE" means the earliest of (i)
the date on which the full amount of the Aggregate Term Loan Commitment has been
borrowed, (ii) March 26, 1999, and (iii) any date upon which the Term
Commitments shall terminate.
"TERM PERCENTAGE" means, as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the
Term Loan Commitment of such Lender on such date (or, if there are no Term Loan
Commitments on such date, such Lender's Term Exposure on such date), and (ii)
the denominator of which is the Aggregate Term Loan Commitments on such date
(or, if there are no Term Loan Commitments on such date, the Aggregate Term
Exposure on such date).
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"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Equity Investors III, L.P., a Delaware limited
partnership.
"▇▇▇▇▇▇ FEES" means any amounts payable at or in connection with the
consummation of the Allied Recapitalization or a Pending Acquisition to TC
Management Partners LLC or any of its Affiliates in consideration of investment
banking services, provided that the ▇▇▇▇▇▇ Fees shall not exceed an amount equal
to one percent (1%) of the gross consideration payable for the stock and/or the
assets to be acquired in each such transaction.
"TOTAL DEBT" means, as of any date, the Indebtedness of the Borrower
and the Subsidiaries, to the extent that as at such date such Indebtedness would
appear on a consolidated balance sheet of the Borrower prepared in accordance
with GAAP.
"TOTAL PERCENTAGE" means, as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the sum
of the Revolving Commitment of such Lender on such date (or, if there are no
Revolving Commitments on such date, on the last date upon which one or more
Revolving Commitments were in effect) plus the unpaid principal balance of such
Lender's Term Loan on such date, and (ii) the denominator of which is sum of the
aggregate Revolving Commitments on such date (or, if there are no Revolving
Commitments on such date, on the last date upon which one or more Revolving
Commitments were in effect) plus the aggregate unpaid principal balance of all
Term Loans on such date.
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents, the
Allied Recapitalization Documents, the Classic Acquisition Documents, the Haddon
Acquisition Documents, the MTI Acquisition Documents, and all documents,
instruments and other agreements executed or delivered in connection with all
other Acquisitions by the Borrower or any Subsidiary.
"TRANSACTIONS" means, collectively, the Initial Transactions, the
Pending Acquisitions, and all other Acquisitions by the Borrower and the
Subsidiaries.
"UNCONSOLIDATED INVESTMENT" means, as of any date, any investment
made by the Borrower or any Subsidiary in any other Person that, pursuant to
GAAP as in effect on such date, would not be consolidated with the Borrower for
financial reporting purposes immediately after giving effect to such investment.
"UNITED STATES" means the United States of America.
"WORKING CAPITAL" means, at any date of determination, the
difference between (i) current assets of the Borrower and the Subsidiaries
determined on a consolidated basis in accordance with GAAP minus (ii) current
liabilities of the Borrower and
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the Subsidiaries determined on a consolidated in accordance with GAAP less the
current portion of long term debt.
"WORKING CAPITAL DECREASE" means, for any period, the result, if
positive, obtained by subtracting Working Capital at the close of business on
the last day of such period from Working Capital at the opening of business on
the first day of such period.
"WORKING CAPITAL INCREASE" means, for any period, the result, if
positive, obtained by subtracting Working Capital at the opening of business on
the first day of such period from Working Capital at the close of business on
the last day of such period.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person,
100% of the outstanding Capital Stock of such Subsidiary is owned, directly or
indirectly, by such Person.
"WITHDRAWAL LIABILITY" means, with respect to any Person, liability
of such Person to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
1.2. ACCOUNTING TERMS
As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
If any change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Credit Parties and the Borrower
shall negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change and (ii) the Borrower shall provide to
the Credit Parties financial statements and other documents required under this
Agreement (or such other items as the Administrative Agent may reasonably
request) setting forth a reconciliation between calculations of such ratio or
requirement before and after giving effect to such change.
1.3. RULES OF INTERPRETATION
(a) Unless expressly provided in a Loan Document to the contrary,
(i) the words "hereof", "herein", "hereto" and "hereunder" and similar words
when used in each Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof, (ii) section, subsection, schedule and
exhibit references contained therein shall refer to section, subsection,
schedule and exhibit thereof or thereto, (iii) the words "include" and
"including", shall mean that the same shall be "included,
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32
without limitation", (iv) any definition of, or reference to, any agreement,
instrument, certificate or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (v) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (vi) the words
"asset" and "property" shall be construed to have the same meaning and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, (vii) words in the singular number
include the plural, and words used therein in the plural include the singular,
(viii) any reference to a time shall refer to such time in New York, (ix) in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding", and (x) references therein to a fiscal period shall
refer to that fiscal period of the Borrower.
(b) Article and Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed to be a part thereof.
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT
2.1. LOANS
(a) REVOLVING LOANS. Subject to the terms and conditions hereof,
each Lender severally agrees to make revolving credit loans in Dollars (each a
"REVOLVING LOAN" and, as the context may require, collectively with all other
Revolving Loans of such Lender and with the Revolving Loans of all other
Lenders, the "REVOLVING LOANS") to the Borrower from time to time on any
Business Day during the period from the Effective Date to the Revolving
Commitment Termination Date, provided that after giving effect thereto (i) such
Lender's Revolving Exposure would not exceed such Lender's Revolving Commitment,
and (ii) the sum of (A) the Aggregate Revolving Exposure plus (B) the Existing
Letter of Credit Exposure would not exceed the Aggregate Revolving Commitment.
During such period, the Borrower may borrow, prepay in whole or in part and
reborrow under the Revolving Commitments, all in accordance with the terms and
conditions of this Agreement. The outstanding principal balance of each
Revolving Loan shall be due and payable on the Maturity Date.
(b) TERM LOANS. Subject to the terms and conditions hereof, each
Lender severally agrees to make term loans in Dollars (each a "TERM LOAN" and,
as the context may require, collectively with all other Term Loans of such
Lender and with the Term Loans of all other Lenders, the "TERM LOANS") to the
Borrower from time to time on any Business Day during the period from the
Effective Date to the Term Loan Commitment Termination Date, provided that after
giving effect thereto (i) such Lender's Term Exposure would not exceed such
Lender's Term Loan Commitment, (ii) the Aggregate Term Exposure would not exceed
the Aggregate Term Loan Commitment, and
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(iii) the sum of the aggregate amount of such Term Loans plus the aggregate
amount of all Term Loans borrowed prior to such date shall not exceed either (x)
the aggregate amount of all Equity Contributions made on or before such date or
(y) 50% of the sum of the aggregate Acquisition Consideration (including
transaction costs other than fees payable to ▇▇▇▇▇▇ or any of its Affiliates)
paid in cash on or before such date in connection with Permitted Acquisitions
(net of any post-closing adjustments made in connection therewith which resulted
in a reduction to, or refund of any portion of, such Acquisition Consideration),
provided, however, that on and after the date on which the aggregate amount of
Equity Contributions shall equal or exceed $44,200,000, this clause (iii) shall
cease to apply. Term Loans once repaid may not be reborrowed. The outstanding
principal balance of each Term Loan shall be due and payable on the Maturity
Date.
2.2. PROCEDURE FOR BORROWING
(a) CREDIT REQUEST. To request a Loan, the Borrower shall notify the
Administrative Agent by the delivery of a Credit Request, which shall be sent by
facsimile and shall be irrevocable (confirmed promptly, and in any event within
five Business Days, by the delivery to the Administrative Agent of a Credit
Request manually signed by the Borrower), no later than 11:00 a.m., three
Business Days prior to the requested Borrowing Date in the case of Eurodollar
Advances and 10:00 a.m., on the requested Borrowing Date in the case of ABR
Advances, specifying (A) whether such borrowing is a Revolving Loan, a Term Loan
or a combination thereof, (B) the aggregate principal amount to be borrowed, (C)
the requested Borrowing Date, (D) whether such borrowing is to consist of one or
more Eurodollar Advances, ABR Advances, or a combination thereof and (E) if the
Loan is to consist of one or more Eurodollar Advances, the amount and length of
the Interest Period for each Eurodollar Advance. The amount of each (i)
Eurodollar Advance to be made on a Borrowing Date, when aggregated with all
amounts to be converted to, or continued as, a Eurodollar Advance on such date
and having the same Interest Period as such first Eurodollar Advance, shall
equal the Minimum Amount and (ii) each ABR Advance made on each Borrowing Date
shall equal the Minimum Amount or, if less, the unused portion of the Aggregate
Revolving Commitment.
(b) FUNDING BY LENDERS. Upon receipt of each Credit Request, the
Administrative Agent shall promptly notify each Lender thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Specified Percentage of the requested Loans available to
the Administrative Agent for the account of the Borrower at the Payment Office
not later than 1:00 p.m. on the relevant Borrowing Date requested by the
Borrower, in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, be made available on such date to the Borrower by
the Administrative Agent at the Payment Office by crediting the account of the
Borrower on the books of the Administrative Agent at such office with the
aggregate of said amounts (in like funds) received by the Administrative Agent.
The failure of any Lender to provide such Lender's
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34
share of the requested Loans shall not relieve any other Lender of its
obligations hereunder to provide its share of the requested Loans.
(c) FAILURE TO FUND. Unless the Administrative Agent shall have
received notice prior to a proposed Borrowing Date (or, in the case of a
borrowing of ABR Advances, prior to 12:00 noon on such Borrowing Date) from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
facsimile or other writing) that such Lender will not make available to the
Administrative Agent such Lender's share of the requested Loans, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section and, in reliance upon such assumption, make available to the Borrower on
such Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such share available to the Administrative Agent, such
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount (to the extent not previously paid
by the other), together with interest thereon for each day from the date such
amount is made available to the Borrower to the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the interest rate otherwise applicable to such Loan, and, in the case of such
Lender, at a rate of interest per annum equal to the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rates on interbank compensation. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Loan as part of the relevant borrowing for
purposes of this Agreement.
2.3. TERMINATION OR REDUCTION OF COMMITMENTS
(a) VOLUNTARY TERMINATION OR REDUCTIONS. The Borrower may, upon at
least three Business Days' prior written notice to the Administrative Agent, (i)
at any time when the Aggregate Revolving Exposure and the Aggregate Term
Exposure shall be zero, terminate all of the Revolving Commitments, (ii) at any
time when the Aggregate Term Exposure shall be zero, terminate all of the Term
Loan Commitments, and (iii) at any time and from time to time when (A) the
Aggregate Revolving Commitment shall exceed the Aggregate Revolving Exposure
(after giving effect to any contemporaneous payment or prepayment of Revolving
Loans or Reimbursement Obligations) or (B) the Aggregate Term Loan Commitment
shall exceed the Aggregate Term Exposure (after giving effect to any
contemporaneous payment or prepayment of the Term Loans), permanently reduce the
Aggregate Revolving Commitment or the Aggregate Term Loan Commitment, as the
case may be, by a sum not greater than the amount of such excess, provided,
however, that each such partial reduction shall be in the amount of $1,000,000
or such amount plus a whole multiple of $500,000 in excess thereof.
(b) OTHER MANDATORY REDUCTIONS. The Aggregate Revolving Commitment
shall be permanently reduced at the times and in the amounts required by Section
2.4(c).
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(c) REDUCTIONS OF LETTER OF CREDIT COMMITMENT. The Letter of Credit
Commitment shall not be reduced until such time as the Aggregate Revolving
Commitment shall equal such Letter of Credit Commitment, and thereafter shall in
each case be reduced, automatically, by a sum equal to the amount of each such
reduction in the Aggregate Revolving Commitment.
(d) REDUCTIONS IN GENERAL. Each reduction of the Aggregate Revolving
Commitment or the Aggregate Term Loan Commitment, as the case may be, shall be
made by reducing each Lender's Revolving Commitment or Term Loan Commitment, as
the case may be, by an amount equal to such Lender's Specified Percentage of
such reduction. Simultaneously with each reduction of the Aggregate Revolving
Commitment or the Aggregate Term Loan Commitment, as the case may be, the
Borrower shall pay the Commitment Fee accrued on the amount by which the
Aggregate Revolving Commitment or the Aggregate Term Loan Commitment has been
reduced.
2.4. SCHEDULED REPAYMENTS OF TERM LOANS; PREPAYMENTS OF LOANS;
COMMITMENT REDUCTIONS
(a) SCHEDULED REPAYMENT OF TERM LOANS.
(i) Subject to clause (ii) below, the aggregate outstanding
principal balance of the Term Loans shall be due and payable in 26
consecutive quarterly installments on the last Business Day of each March,
June, September and December, commencing on June 30, 1998, provided,
however, that the last such installment shall be due and payable on the
Maturity Date. Each such installment of principal payable during the
periods set forth below to each Lender shall be in an amount equal to the
product of (i) such Lender's Term Percentage and (ii) the amount of the
installment set forth below opposite such period:
Amount of
Period Installment
------ -----------
June 30, 1998 through
March 31, 1999 $ 500,000
June 30, 1999 through
March 31, 2000 $ 750,000
June 30, 2000 through
March 31, 2001 $1,250,000
June 30, 2001 through
March 31, 2002 $1,750,000
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36
June 30, 2002 through
March 31, 2002 $2,000,000
June 30, 2003 through
March 31, 2004 $2,300,000
June 30, 2004 $5,000,000
Maturity Date the remaining unpaid
principal amount of the Term
Loans.
(ii) If the aggregate amount of the Term Loans borrowed by the
Borrower exceeds $44,200,000, upon the earlier of (A) the Term Loan
Commitment Termination Date and (B) the date on which the full amount of
the Aggregate Term Loan Commitment has been borrowed, each of the
remaining scheduled payments of the Term Loans set forth above will be
increased by an amount equal to the excess of the aggregate amount of the
Term Loans borrowed over $44,200,000 multiplied by a fraction, the
numerator of which is the amount of such scheduled payment of the Term
Loans and the denominator of which is the aggregate amount of all
remaining scheduled payments of the Term Loans.
(b) VOLUNTARY PREPAYMENTS. The Borrower shall have the right at any
time and from time to time to prepay all or any portion of the Loans without
premium or penalty (but subject to Section 3.5), by delivering to the
Administrative Agent an irrevocable written notice thereof at least one Business
Day prior to the proposed prepayment date, in the case of Loans consisting of
ABR Advances, and at least three Business Days prior to the proposed prepayment
date, in the case of Loans consisting of Eurodollar Advances, specifying whether
the Loans to be prepaid are Revolving Loans or Term Loans, whether the Loans to
be prepaid consist of ABR Advances, Eurodollar Advances, or a combination
thereof, the amount to be prepaid and the date of prepayment, whereupon the
amount specified in such notice shall be due and payable on the date specified.
Upon receipt of each such notice, the Administrative Agent shall promptly notify
each Lender thereof. Each partial prepayment of the Loans pursuant to this
subsection shall be in an amount equal to the Minimum Amount, or, if less, the
outstanding principal balance of the Loans. After giving effect to any partial
prepayment with respect to Eurodollar Advances which were made (whether as the
result of a borrowing, a conversion or a continuation) on the same date and
which had the same Interest Period, the outstanding principal balance of such
Eurodollar Advances shall exceed (subject to Section 3.3) the Minimum Amount.
(c) MANDATORY PREPAYMENTS; COMMITMENT REDUCTIONS. On or before each
date set forth below, the Borrower shall prepay the aggregate unpaid principal
amount of the Term Loans by the amount set forth below and applicable to such
date
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37
provided, however, that if after applying all or any portion of a prepayment
required by this Section 2.4(c) to the prepayment of the Term Loans, the Term
Loans shall have been paid in full or, if at the time of such prepayment no Term
Loans are outstanding, such portion of such prepayment (or all thereof) not
applied to the prepayment of the Term Loans shall be applied to the permanent
reduction of the Aggregate Revolving Commitments and to the prepayment of the
Revolving Loans pursuant to and to the extent required by Section 2.4(d):
(i) on the last day of the Reinvestment Period for each
Disposition described in Section 8.6(d), by an amount equal to 100% of the
Adjusted Net Cash Proceeds with respect to such Disposition;
(ii) on the earlier of the date the annual financial
statements in respect of each fiscal year, commencing with the fiscal year
ending December 31, 1998, are delivered to the Administrative Agent
pursuant to Section 7.1(a), or the 90th day following the end of each such
fiscal year, by an amount equal to the following: (A) if the Leverage
Ratio at the end of such fiscal year is greater than 2.50:1.00, 75% of
Excess Cash Flow, and (B) if the Leverage Ratio at the end of such fiscal
year is less than or equal to 2.50:1.00, 50% of Excess Cash Flow;
(iii) upon receipt by the Borrower or any Subsidiary Guarantor
of Net Cash Proceeds attributable to any Equity Issuance, by an amount
equal to the lesser of (A) $20,000,000 or (B) the amount of such Net Cash
Proceeds;
(iv) upon receipt by the Borrower or any Subsidiary of Net
Cash Proceeds of Refinancing Debt, by an amount equal to 100% of such Net
Cash Proceeds;
(v) in an amount equal to all Applicable Proceeds (i) in
excess of amounts used to replace or repair any properties or (ii) which
are not used or designated to replace or repair properties within one year
after receipt thereof, provided that the Borrower or the applicable
Subsidiary Guarantor shall have commenced the restoration or replacement
process (including the making of appropriate filings and requests for
approval) within 45 days after such casualty or after the receipt of any
such condemnation proceeds, as the case may be, and diligently pursues the
same through completion; and
(vi) with respect to any Acquisition, upon receipt by the
Borrower or any Subsidiary of proceeds from any reduction, or refund of
any portion of, the Acquisition Consideration paid in respect thereof
resulting from any post-closing adjustment made in connection therewith,
by an amount equal to 100% of such proceeds;
provided, however, that if on the date of such a reduction of the Aggregate
Revolving Commitment, the Aggregate Revolving Exposure exceeds the Aggregate
Revolving Com-
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38
mitment after giving effect to such reduction and, if the Revolving Loans have
been paid in full and the Letter of Credit Exposure of all Lenders is greater
than zero, the Borrower shall deposit into the Cash Collateral Account an amount
in cash that would cause the balance on deposit in the Cash Collateral Account
to equal or exceed the Letter of Credit Exposure of all Lenders.
(d) OTHER MANDATORY PREPAYMENTS; CASH COLLATERAL. Simultaneously
with each reduction or termination of:
(i) the Aggregate Revolving Commitment, (1) in the event that
the Letter of Credit Commitment shall exceed the Aggregate Revolving
Commitment as so reduced or terminated, the Letter of Credit Commitment
shall be automatically reduced by an amount equal to such excess, and (2)
the Borrower shall prepay the Revolving Loans by an amount equal to the
lesser of (A) the aggregate outstanding principal balance of the Revolving
Loans, or (B) the excess of the aggregate outstanding principal balance of
the Revolving Loans over the Aggregate Revolving Commitment as so reduced
or terminated; and
(ii) the Letter of Credit Commitment (including pursuant to
clause (i) above), in the event the aggregate Letter of Credit Exposure of
all Lenders exceeds the Letter of Credit Commitment as so reduced or
terminated, the Borrower shall immediately deposit into the Cash
Collateral Account such amount, in cash, as would cause the balance on
deposit in the Cash Collateral Account to equal or exceed the aggregate
Letter of Credit Exposure of all Lenders.
(e) IN GENERAL. Each prepayment of the Term Loans shall be applied
among the remaining installments of principal set forth in Section 2.4(a) on a
pro rata basis. Simultaneously with each prepayment of a Loan, the Borrower
shall prepay all accrued interest on the amount prepaid through the date of
prepayment.
2.5. LETTERS OF CREDIT
(a) AVAILABILITY; PROCEDURE. Prior to the Effective Date, BNY issued
the letters of credit for the account of the Borrower and each Pending
Acquisition Target listed on Schedule 2.5. As of the Effective Date with respect
to such letters of credit issued for the account of the Borrower and as of the
date of the consummation of a Pending Acquisition with respect to such letters
of credit issued for the account of a Pending Acquisition Target, each Bank
(other than BNY) assumes a portion of the risk associated with such letters of
credit in accordance with its Revolving Commitment Percentage. In addition, the
Borrower may request the Issuer to issue additional standby letters of credit
(together with the letters of credit listed on Schedule 2.5, the "LETTERS OF
CREDIT"; each, individually, a "LETTER OF CREDIT") during the period from the
Effective Date to the tenth Business Day prior to the Maturity Date, provided
that (i) immediately after the issuance of each Letter of Credit, the Letter of
Credit Exposure of all Lenders would not exceed
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the Letter of Credit Commitment, and (ii) the Aggregate Revolving Exposure would
not exceed the Aggregate Revolving Commitment. To request the issuance of a
Letter of Credit, the Borrower shall notify the Administrative Agent and the
Issuer by the delivery of a Credit Request, which shall be sent by facsimile and
shall be irrevocable (confirmed promptly, and in any event within five Business
Days, by the delivery to the Administrative Agent of a Credit Request manually
signed by the Borrower), at least three Business Days prior to the requested
date of issuance, specifying (A) the beneficiary of such Letter of Credit, (B)
the Borrower's proposal as to the conditions under which a drawing may be made
under such Letter of Credit and the documentation to be required in respect
thereof, (C) the maximum amount to be available under such Letter of Credit, and
(D) the requested dates of issuance and expiration. Such Credit Request shall be
accompanied by a duly completed application for such Letter of Credit on such
forms as may be made available from time to time by the Issuer and such other
certificates, documents (including a reimbursement agreement) and other
information as may be required by the Issuer in accordance with its customary
procedures (collectively, the "LETTER OF CREDIT DOCUMENTATION"). Upon receipt of
such Credit Request from the Borrower, the Administrative Agent shall promptly
notify the each Lender thereof. Subject to the satisfaction of the terms and
conditions of this Agreement, the Issuer shall issue each requested Letter of
Credit. In the event of any conflict between the provisions of this Agreement
and any Letter of Credit Documentation, the provisions of this Agreement shall
control.
(b) TERMS OF LETTERS OF CREDIT. Each Letter of Credit shall (i) be
denominated in Dollars, (ii) be issued for the account of the Borrower and in
support of obligations, contingent or otherwise, of the Borrower or any
Subsidiary arising in the ordinary course of business, and (iii) have an
expiration date which shall be not later than the earlier of (A) twelve months
after the date of issuance thereof or (B) five Business Days before the Maturity
Date, provided that the expiration date of such Letter of Credit may be extended
or such Letter of Credit may be renewed, provided, further, that any renewal, or
any extension of any expiry date, of a Letter of Credit shall constitute the
issuance of such Letter of Credit for all purposes of this Agreement.
(c) LETTER OF CREDIT PARTICIPATIONS. Immediately upon the issuance
of a Letter of Credit, the Issuer shall be deemed to have sold and transferred
to each Lender, and each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without recourse or
warranty, an undivided interest and participation, to the extent of such
Lender's Revolving Percentage thereof, in such Letter of Credit and the
obligations of Borrower with respect thereto and any security therefor and any
guaranty pertaining thereto at any time existing.
(d) DRAWINGS ON LETTERS OF CREDIT. The Issuer shall promptly notify
(i) each Lender of the Issuer's receipt of a drawing request under any Letter of
Credit, stating the amount of such Lender's Revolving Percentage of such drawing
request and the date on which such request will be honored and (ii) Borrower of
the amount of such drawing request and the date on which such request will be
honored. Any failure of the
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40
Issuer to give or any delay in the Issuer's giving any such notice shall not
release or diminish the obligations of Borrower or any Lender hereunder. In
determining whether to pay under any Letter of Credit, the Issuer shall have no
obligation to any Lender or the Borrower other than to confirm that any
documents required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the requirements of
such Letter of Credit. In the absence of gross negligence or willful misconduct
on the part of the Issuer, the Issuer shall have no liability to any Lender or
the Borrower for any action taken or omitted to be taken by it under or in
connection with any Letter of Credit, including any such action negligently
taken or negligently omitted to be taken by it.
(e) REIMBURSEMENT. The Borrower shall pay to the Administrative
Agent for the account of the Issuer on demand therefor, in Dollars in
immediately available funds, the amount of all Reimbursement Obligations owing
to the Issuer under any Letter of Credit, together with interest thereon as
provided in Section 3.1, irrespective of any claim, setoff, defense or other
right which the Borrower may have at any time against the Issuer or any other
Person. In the event that the Issuer makes any payment under any Letter of
Credit and Borrower shall not have repaid such amount to the Issuer when due,
the Issuer shall promptly notify each Lender of such failure, and each Lender
shall promptly and unconditionally pay to the Administrative Agent, for the
account of the Issuer, the amount of such Lender's Revolving Percentage of such
payment in Dollars in immediately available funds on the Business Day the Issuer
so notifies such Lender if such notice is given prior to 12:00 Noon or, if such
notice is given after 12:00 Noon, such Lender shall make its Revolving
Percentage of such payment available to the Issuer prior to 12:00 Noon on the
next succeeding Business Day.
(f) LENDERS' OBLIGATIONS. If and to the extent any Lender shall not
make such Lender's Revolving Percentage of any Reimbursement Obligations
available to the Issuer when due in accordance with Section 2.5(e), such Lender
agrees to pay interest to the Issuer on such unpaid amount for each day from the
date such payment is due until the date such amount is paid in full to the
Issuer at the Federal Funds Effective Rate until (and including) the third
Business Day after the date due and thereafter at the Alternate Base Rate. The
obligations of the Lenders under this Section 2.5(f) are several and not joint
or joint and several, and the failure of any Lender to make available to the
Issuer its Revolving Percentage of any Reimbursement Obligations when due in
accordance with Section 2.5(e) shall not relieve any other Lender of its
obligation hereunder to make its Revolving Percentage of such Reimbursement
Obligations so available when so due, but no Lender shall be responsible for the
failure of any other Lender to make such other Lender's Revolving Percentage of
such Reimbursement Obligations so available when so due.
(g) RESCISSION. Whenever the Issuer receives a payment of a
Reimbursement Obligation from or on behalf of Borrower as to which the Issuer
has received any payment from a Lender pursuant to Section 2.5(e), the Issuer
shall promptly pay to
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such Lender an amount equal to such Lender's Revolving Percentage of such
payment from or on behalf of Borrower. If any payment by or on behalf of
Borrower and received by the Issuer with respect to any Letter of Credit is
rescinded or must otherwise be returned by the Issuer for any reason and the
Issuer has paid to any Lender any portion thereof, each such Lender shall
forthwith pay over to the Issuer an amount equal to such Lender's Revolving
Percentage of the amount which must be so returned by the Issuer.
(h) EXPENSES. Each Lender, upon the demand of the Issuer, shall
reimburse the Issuer, to the extent the Issuer has not been reimbursed by
Borrower after demand therefor, for the reasonable costs and expenses (including
reasonable attorneys' fees) incurred by the Issuer in connection with the
collection of amounts due under, and the preservation and enforcement of any
rights conferred by, any Letter of Credit or the performance of the Issuer's
obligations as issuer of the Letters of Credit under this Agreement in respect
thereof, to the extent of such Lender's Revolving Percentage of the amount of
such costs and expenses provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent the same result solely from the gross negligence or willful misconduct of
the Issuer. The Issuer shall refund any costs and expenses reimbursed by such
Lender that are subsequently recovered from Borrower in an amount equal to such
Lender's Revolving Percentage thereof.
(i) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to
reimburse the Issuer pursuant to this Section 2.5, and the obligation of each
Lender to make available to the Issuer the amounts set forth in this Section 2.5
shall be absolute, unconditional and irrevocable under any and all
circumstances, shall be made without reduction for any set-off, counterclaim or
other deduction of any nature whatsoever, may not be terminated, suspended or
delayed for any reason whatsoever, shall not be subject to any qualification or
exception and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including without limitation, any of the
following circumstances: (1) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents, (2) the existence of any claim,
setoff, defense or other right which Borrower may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the Issuer, any
Lender or any other Person, whether in connection with this Agreement, any other
Loan Document, any Letter of Credit, the transactions contemplated in the Loan
Documents or any unrelated transactions (including any underlying transaction
between Borrower and the beneficiary named in any such Letter of Credit), (3)
any draft, certificate or any other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect, (4) the
surrender or impairment of any Collateral for the performance or observance of
any of the terms of any of the Loan Documents, or (5) the occurrence of any
Default or Event of Default. Nothing contained in this Section 2.5(i), however,
shall require the Borrower or any Lender to reimburse the Issuer for any amounts
that become due by reason of the Issuer's gross negligence or wilful misconduct.
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42
2.6. PAYMENTS; PRO RATA TREATMENT AND SHARING OF SET-OFFS
(a) PAYMENTS GENERALLY. (i) Except as provided below, all payments,
including prepayments, of principal and interest on the Loans, of the Commitment
Fee, the Letter of Credit Fees and of all other amounts to be paid by the
Borrower under the Loan Documents (the Commitment Fee and the Letter of Credit
Fees, together with all of such other fees, being sometimes hereinafter
collectively referred to as the "FEES") shall be made to the Administrative
Agent, prior to 1:00 p.m. on the date such payment is due, for the account of
the applicable Credit Parties at the Payment Office, in Dollars and in
immediately available funds, without set-off, offset, recoupment or
counterclaim. The failure of the Borrower to make any such payment by such time
shall not constitute a Default, provided that such payment is made on such due
date, but any such payment made after 1:00 p.m. on such due date shall be deemed
to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the Loans. As between the Borrower and each
Credit Party, any payment by the Borrower to the Administrative Agent for the
account of such Credit Party shall be deemed to be payment by the Borrower to
such Credit Party. Notwithstanding the foregoing, all payments pursuant to
Sections 3.5, 3.6, 3.7, and 11.4 shall be paid directly to the Credit Party
entitled thereto. If any payment under the Loan Documents shall be due and
payable on a day which is not a Business Day, the due date thereof (except as
otherwise provided with respect to Interest Periods) shall be extended to the
next Business Day and (except with respect to payments in respect of the Fees)
interest shall be payable at the applicable rate specified herein during such
extension, provided, however, that if such next Business Day would be after the
Maturity Date, such payment shall instead be due on the immediately preceding
Business Day.
(ii) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (A) first,
towards payment of interest and fees then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (B) second, towards payment of principal
then due under the Loan Documents, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(b) SET-OFF. In addition to any rights and remedies of the Credit
Parties provided by law, upon and after the acceleration of all the obligations
of the Borrower under the Loan Documents to which it is a party, or at any time
upon the occurrence and during the continuance of an Event of Default under
Sections 9.1(a) or (b), each Credit Party shall have the right, without prior
notice to any Loan Party, any such notice being expressly waived by each Loan
Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of such Loan Party to
such Credit Party any amount owing from such Credit Party to such Loan Party,
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43
at, or at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off may
be exercised by any Credit Party against such Loan Party or against any trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of such Loan
Party, or against anyone else claiming through or against such Loan Party, or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Credit Party prior to the making, filing or issuance, or
service upon such Credit Party of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Credit Party, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
(c) ADJUSTMENTS. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in respect of the principal of or interest on its Revolving Loans or
its Term Loan, resulting in such Lender receiving payment of a greater
proportion of the aggregate principal amount of, or accrued interest on, such
type of Loan than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall promptly purchase, at face value for
cash, participations in the Loans of that type to the extent necessary so that
the benefit of such payment shall be shared by the Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Loans of such type, provided, however, that (d) if all or any portion
of such payment is thereafter recovered, such participations shall be rescinded
and the purchase price returned, in each case to the extent of such recovery,
and (e) the provisions of this Section 2.6(c) shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this Section 2.6(c) shall apply). The
Borrower agrees that any Lender that purchased a participation pursuant to this
subsection may exercise such rights to payment (including the right of set-off)
with respect to such participation as fully as such Lender were the direct
creditor of the Borrower in the amount of such participation.
2.7. CASH COLLATERAL ACCOUNT
At, or at any time before, the time the Borrower shall be required
to make a deposit into the Cash Collateral Account, the Administrative Agent
shall establish and maintain at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ in the name of the Borrower but under the sole dominion and control of the
Administrative Agent, a cash collateral account designated as Allied Bus
Corp./Cash Collateral Account" to be renamed
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44
"GLOBAL VACATION GROUP, INC./CASH COLLATERAL ACCOUNT" upon the occurrence of the
Name Change (the "CASH COLLATERAL ACCOUNT"). The Borrower may from time to time
make one or more deposits into the Cash Collateral Account. The Borrower hereby
pledges to the Administrative Agent for the benefit of the Credit Parties, a
Lien on and security interest in the Cash Collateral Account and all sums at any
time and from time to time on deposit therein (the Cash Collateral Account,
together with all sums on deposit therein, being sometimes hereinafter
collectively referred to as the "CASH COLLATERAL"), as collateral security for
the prompt payment in full when due, whether at stated maturity, by acceleration
or otherwise, of the Borrower Obligations. The Borrower agrees that at any time
and from time to time at its expense, it will promptly execute and deliver to
the Administrative Agent any further instruments and documents, and take any
further actions, that may be necessary or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Cash Collateral. The Borrower agrees that it will not (i) sell or otherwise
dispose of any of the Cash Collateral, or (ii) create or permit to exist any
Lien upon any of the Cash Collateral, except for Permitted Liens. The Borrower
hereby authorizes the Administrative Agent, promptly after each drawing under
any Letter of Credit shall become due and payable, to apply any and all cash on
deposit in the Cash Collateral Account towards the reimbursement of the Issuer
for all sums paid in respect of such drawing, and all other Borrower Obligations
which shall then be due and owing.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. INTEREST RATE AND PAYMENT DATES
(a) ADVANCES. Each (i) ABR Advance shall bear interest at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin and (ii)
Eurodollar Advance shall bear interest at a rate per annum equal to the
Eurodollar Rate for the applicable Interest Period plus the Applicable Margin.
(b) EVENT OF DEFAULT; LATE CHARGES. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default, the
outstanding principal balance of the Loans shall bear interest at a rate per
annum equal to 2% plus the rate otherwise applicable to such Loans as provided
in subsection (a) above. If any interest, Reimbursement Obligation, Fee or other
amount payable under the Loan Documents is not paid when due (whether at the
stated maturity thereof, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum equal to the Alternate Base Rate plus
2%, from the date of such nonpayment until paid in full (whether before or after
the entry of a judgment thereon). All such interest shall be payable on demand.
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45
(c) PAYMENT OF INTEREST. Except as otherwise provided in subsection
(b) above, interest shall be payable in arrears on the following dates and upon
each payment (including prepayment) of the Loans:
(i) in the case of an ABR Advance, on the last Business Day of
each March, June, September and December commencing on the first of such
days to occur after such ABR Advance is made or any Eurodollar Advance is
converted to an ABR Advance;
(ii) in the case of a Eurodollar Advance, on the last day of
the Interest Period applicable thereto and, if such Interest Period is
longer than three months, the last Business Day of each three month
interval occurring during such Interest Period; and
(iii) in the case of all Loans, the Maturity Date.
(d) COMPUTATIONS. Interest on (i) ABR Advances to the extent based
on the Prime Rate shall be calculated on the basis of a 365 or 366- day year (as
the case may be), and (ii) ABR Advances to the extent based on the Federal Funds
Effective Rate and on Eurodollar Advances shall be calculated on the basis of a
360-day year, in each case, for the actual number of days elapsed. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the Prime
Rate, but any failure to so notify shall not in any manner affect the obligation
of the Borrower to pay interest on the Loans in the amounts and on the dates
required. Each determination of a rate of interest by the Administrative Agent
pursuant to the Loan Documents shall be conclusive and binding on all parties
hereto absent manifest error. The Borrower acknowledges that to the extent
interest payable on ABR Advances is based on the Prime Rate, such rate is only
one of the bases for computing interest on loans made by the Lenders, and by
basing interest payable on ABR Advances on the Prime Rate, the Lenders have not
committed to charge, and the Borrower has not in any way bargained for, interest
based on a lower or the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
3.2. FEES
(a) COMMITMENT FEE. The Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders in accordance with such Lender's Specified
Percentage, fees (collectively, the "COMMITMENT FEE") as follows: (i) with
respect to the Aggregate Revolving Commitment, during the period from the
Effective Date through the Revolving Commitment Termination Date, at a rate per
annum equal to the Applicable Margin on the average daily unused Aggregate
Revolving Commitment and (ii) with respect to the Aggregate Term Loan
Commitment, during the period from the Effective Date through the Term Loan
Commitment Termination Date, at a rate per annum equal to the Applicable Margin
on the average daily unused Aggregate Term Loan Commitment.
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The Commitment Fee shall be payable (A) quarterly in arrears on the last
Business Day of each March, June, September and December during such period,
commencing on the last Business Day of June, 1998, (B) on the date of any
reduction in the Aggregate Revolving Commitment or the Aggregate Term Loan
Commitment (to the extent of such reduction) and (C) on the Maturity Date. The
Commitment Fee shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in accordance with each
Lender's Revolving Percentage, commissions (the "LETTER OF CREDIT FEES") with
respect to the Letters of Credit for the period from and including the date of
issuance of each thereof through the expiration date thereof, at a rate per
annum equal to the Applicable Margin on the average daily maximum amount
available under any contingency to be drawn under such Letter of Credit. The
Letter of Credit Fees shall be (i) calculated on the basis of a 360-day year for
the actual number of days elapsed and (ii) payable quarterly in arrears on the
last Business Day of each March, June, September and December of each year,
commencing on the first such day following the Effective Date, and on the date
that the Revolving Commitments shall expire. In addition to the Letter of Credit
Fees, the Borrower agrees to pay to the Issuer, for its own account, its
standard fees and charges customarily charged to customers similar to the
Borrower with respect to any Letter of Credit.
(c) ADMINISTRATIVE AGENT'S AND ISSUER'S FEES. The Borrower agrees to
pay to the Administrative Agent and the Issuer, for their own respective
accounts, such other fees as have been agreed to in writing by the Borrower, the
Administrative Agent and the Issuer.
3.3. CONVERSIONS
(a) The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Administrative Agent at least
one Business Day's prior irrevocable notice of such election, specifying the
amount to be converted, provided, that any such conversion of Eurodollar
Advances shall only be made on the last day of the Interest Period applicable
thereto. In addition, the Borrower may elect from time to time to (i) convert
ABR Advances comprising all or a portion of Loans to Eurodollar Advances and
(ii) continue Eurodollar Advances as new Eurodollar Advances by selecting a new
Interest Period therefor, in each case by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election, in the
case of a conversion to, or continuation of, Eurodollar Advances, specifying the
amount to be so converted or continued and the initial Interest Period relating
thereto, provided that any such conversion of ABR Advances to Eurodollar
Advances shall only be made on a Business Day and any such continuation of
Eurodollar Advances as new Eurodollar Advances shall only be made on the last
day of the Interest Period applicable to the Eurodollar Advances which are to be
continued as such new Eurodollar Advances. Each such notice (a "NOTICE OF
CONVERSION") shall be substantially in the form of Exhibit C, shall be
ir-
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47
revocable and shall be given by facsimile (confirmed promptly, and in any
event within five Business Days, by the delivery to the Administrative Agent of
a Notice of Conversion manually signed by the Borrower). The Administrative
Agent shall promptly provide the Lenders with notice of each such election.
Advances may be converted or continued pursuant to this Section in whole or in
part, provided that the amount to be converted to, or continued as, each
Eurodollar Advance, when aggregated with any Eurodollar Advance to be made on
such date in accordance with Section 2.2 and having the same Interest Period as
such first Eurodollar Advance, shall equal the Minimum Amount.
(b) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence and during the continuance of an Event of Default, the Borrower
shall have no right to elect to convert any existing ABR Advance to a new
Eurodollar Advance or to continue any existing Eurodollar Advance as a new
Eurodollar Advance. In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the Interest Period applicable to
such Eurodollar Advance.
(c) Each conversion or continuation shall be effected by each Lender
by applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted (it being
understood that any such conversion or continuation shall not constitute a
borrowing for purposes of Articles 4, 5 or 6).
3.4. CONCERNING INTEREST PERIODS
(a) No Interest Period in respect of a Eurodollar Advance under a
Revolving Loan shall end after the Revolving Commitment Termination Date, and no
Interest Period in respect of a Eurodollar Advance under a Term Loan shall end
after the Maturity Date.
(b) With respect to Eurodollar Advances, any Interest Period which
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.
(c) If an Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless, in the case of a Interest Period, the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day.
(d) If the Borrower shall have failed to timely elect a Eurodollar
Advance under Section 2.2 or 3.3, as the case may be, in connection with any
borrowing of, conversion to, or continuation of, a Eurodollar Advance, such
borrowing or such Advance
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requested to be converted to, or continued as, a Eurodollar Advance shall
thereafter be an ABR Advance until such time, if any, as the Borrower shall
elect a new Eurodollar Advance pursuant to Section 3.3.
(e) The Borrower shall not be permitted to have more than eight
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Credit Request shall
constitute the making of one Eurodollar Advance for the purpose of calculating
such limitation.
(f) Notwithstanding anything herein to the contrary, (i) until the
earlier of the end of the Syndication Period or the last day of the fourth week
after the consummation of each of the Pending Acquisitions, the Borrower may
only select Interest Periods of one week as set forth in the proviso to the
definition of Interest Period, all of which shall commence on the same date and
end on the same date, and (ii) if the Syndication Period has not expired on or
before the fourth week after the consummation of each of the Pending
Acquisitions, until the end of the Syndication Period, the Borrower may only
select Interest Periods of one month as set forth in the proviso to the
definition of Interest Period, all of which shall commence on the same date and
end on the same date.
3.5. FUNDING LOSS
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow, convert or continue a Eurodollar Advance on a
Borrowing Date or Conversion Date after it shall have given notice to do so in
which it shall have requested a Eurodollar Advance, or if a Eurodollar Advance
shall be terminated for any reason prior to the last day of the Interest Period
applicable thereto, or if, while a Eurodollar Advance is outstanding, any
repayment or prepayment of such Eurodollar Advance is made for any reason
(including as a result of acceleration or illegality) on a date which is prior
to the last day of the Interest Period applicable thereto, the Borrower agrees
to indemnify each Lender against, and to pay on demand directly to such Lender
the amount (calculated by such Lender using any reasonable method chosen by such
Lender which is customarily used by such Lender for such purpose) equal to any
loss or out-of-pocket expense suffered by such Lender as a result of such
failure to borrow convert, or continue, or such termination, repayment or
prepayment, including any loss, cost or expense suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
such Eurodollar Advance or redeploying funds prepaid or repaid, in amounts which
correspond to such Eurodollar Advance and any reasonable internal processing
charge customarily charged by such Lender in connection therewith.
3.6. INCREASED COSTS; ILLEGALITY, ETC.
(a) INCREASED COSTS. If any Change in Law shall impose, modify or
make applicable any reserve, special deposit, compulsory loan, assessment,
increased cost or similar requirement against assets held by, or deposits of, or
advances or loans by, or
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49
other credit extended by, or any other acquisition of funds by, any office of
any Credit Party in respect of its Eurodollar Advances which is not otherwise
included in the determination of a Eurodollar Rate or against any Letters of
Credit issued hereunder and the result thereof is to increase the cost to any
Credit Party of making, renewing, converting or maintaining its Eurodollar
Advances or its commitment to make such Eurodollar Advances, or to reduce any
amount receivable under the Loan Documents in respect of its Eurodollar
Advances, or to increase the cost to any Credit Party of issuing or maintaining
the Letters of Credit or participating therein, as the case may be, or the cost
to any Credit Party of performing its respective functions hereunder with
respect to the Letters of Credit, then, in any such case, the Borrower shall pay
such Credit Party such additional amounts as is sufficient to compensate such
Credit Party for such additional cost or reduction in such amount receivable
which such Credit Party deems to be material as determined by such Credit Party;
provided, however, that the Borrower shall not be responsible for costs under
this Section 3.6(a) arising more than 90 days prior to receipt by the Borrower
of the certificate from the affected Credit Party pursuant to Section 3.6(e)
with respect to such costs.
(b) CAPITAL ADEQUACY. If any Credit Party determines that any Change
in Law relating to capital requirements has or would have the effect of reducing
the rate of return on such Credit Party's capital or on the capital of such
Credit Party's holding company, if any, on the Extensions of Credit to a level
below that which such Credit Party (or its holding company) would have achieved
or would thereafter be able to achieve but for such Change in Law (after taking
into account such Credit Party's (or such holding company's) policies regarding
capital adequacy), the Borrower shall pay to such Credit Party (or such holding
company) such additional amount or amounts as will compensate such Credit Party
(or such holding company) for such reduction.
(c) ILLEGALITY. Notwithstanding any other provision hereof, if any
Lender shall reasonably determine that any law, regulation, treaty or directive,
or any change therein or in the interpretation or application thereof, shall
make it unlawful for such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify the Borrower
and the Administrative Agent thereof, and (i) the commitment of such Lender to
make such Eurodollar Advances or convert ABR Advances to Eurodollar Advances
shall forthwith be suspended, (ii) such Lender shall fund its portion of each
requested Eurodollar Advance as an ABR Advance and (iii) such Lender's Revolving
Loans then outstanding as such Eurodollar Advances, if any, shall be converted
automatically to ABR Advances on the last day of the then current Interest
Period applicable thereto or at such earlier time as may be required by law. The
commitment of any such Lender with respect to Eurodollar Advances shall be
suspended until such Lender shall notify the Administrative Agent and the
Borrower that the circumstances causing such suspension no longer exist. Upon
receipt of such notice by each of the Administrative Agent and the Borrower,
such Lender's commitment to make or maintain Eurodollar Advances shall be
reinstated.
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(d) SUBSTITUTED INTEREST RATE. In the event that (i) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank eurodollar market either adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate applicable pursuant to Section
3.1 or (ii) the Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the
Revolving Loans that the Borrower has requested be made as Eurodollar Advances
or Eurodollar Advances that will result from the requested conversion or
continuation of any portion of the Advances into or of Eurodollar Advances
(each, an "AFFECTED ADVANCE"), the Administrative Agent shall promptly notify
the Borrower and the Lenders (by telephone or otherwise, to be promptly
confirmed in writing) of such determination, on or, to the extent practicable,
prior to the requested Borrowing Date or Conversion Date for such Affected
Advances. If the Administrative Agent shall give such notice, (a) any Affected
Advances shall be made as ABR Advances, (b) the Advances (or any portion
thereof) that were to have been converted to Affected Advances shall be
converted to ABR Advances and (c) any outstanding Affected Advances shall be
converted, on the last day of the then current Interest Period with respect
thereto, to ABR Advances. Until any notice under clauses (i) or (ii), as the
case may be, of this Section has been withdrawn by the Administrative Agent (by
notice to the Borrower promptly upon either (x) the Administrative Agent having
determined that such circumstances affecting the interbank eurodollar market no
longer exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate pursuant to Section 3.1 or (y) the Administrative Agent having
been notified by such Required Lenders that circumstances no longer render the
Advances (or any portion thereof) Affected Advances), no further Eurodollar
Advances shall be required to be made by the Lenders, nor shall the Borrower
have the right to convert all or any portion of the Revolving Loans to or as
Eurodollar Advances.
(e) PAYMENT; CERTIFICATES. Each payment pursuant to subsections (a)
or (b) above shall be made within 10 days after demand therefor, which demand
shall be accompanied by a certificate of the Credit Party demanding such payment
setting forth the calculations of the additional amounts payable pursuant
thereto. Each such certificate shall be conclusive absent manifest error.
Subject to the provisions of Section 3.6(a), no failure by any Credit Party to
demand, and no delay in demanding, compensation for any increased cost shall
constitute a waiver of its right to demand such compensation at any time.
3.7. TAXES
(a) PAYMENTS FREE OF TAXES. All payments by or on account of the
Borrower under any Loan Document to or for the account of a Credit Party shall
be made free and clear of, and without any deduction or withholding for or on
account of, any and
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all present or future Indemnified Taxes or Other Taxes, provided that if the
Borrower or any other Person is required by any law, rule, regulation, order,
directive, treaty or guideline to make any deduction or withholding in respect
of such Indemnified Tax or Other Tax from any amount required to be paid by the
Borrower to or on behalf of any Credit Party under any Loan Document (each a
"Required Payment"), then (i) the Borrower shall notify the Administrative Agent
and such Credit Party of any such requirement or any change in any such
requirement as soon as the Borrower becomes aware thereof, (ii) the Borrower
shall pay such Indemnified Tax or Other Tax prior to the date on which penalties
attach thereto, such payment to be made (to the extent that the liability to pay
is imposed on the Borrower) for its own account or (to the extent that the
liability to pay is imposed on such Credit Party) on behalf and in the name of
such Credit Party, (iii) the Borrower shall pay to such Credit Party an
additional amount such that such Credit Party shall receive on the due date
therefor an amount equal to the Required Payment had no such deduction or
withholding been made or required, and (iv) the Borrower shall, within 30 days
after paying such Indemnified Tax or Other Tax, deliver to the Administrative
Agent and such Credit Party satisfactory evidence of such payment to the
relevant Governmental Authority.
(b) REIMBURSEMENT FOR TAXES AND OTHER TAXES PAID BY CREDIT
PARTY. The Borrower shall reimburse each Credit Party, within ten days after
written demand therefor, for the full amount of all Indemnified Taxes or Other
Taxes paid by such Credit Party on or with respect to any payment by or on
account of any obligation of the Borrower under the Loan Documents (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto (other than any such
penalties, interest or expenses that are incurred by such Credit Party's
unreasonably taking or omitting to take action with respect to such Indemnified
Taxes or Other Taxes), whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Credit Party shall be conclusive absent manifest error. In the
event that any Credit Party determines in good faith that it has received a
refund or credit for Indemnified Taxes or Other Taxes paid by the Borrower under
this Section 3.7, such Credit Party shall promptly notify the Borrower of such
fact and shall remit to the Borrower the amount of such refund or credit.
(c) FOREIGN CREDIT PARTIES. Any Foreign Credit Party that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under the Loan Documents shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law (including Internal Revenue Form 4224
or Form 1001) or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
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3.8. REGISTER
The Administrative Agent will maintain a register for the
recordation of the names and addresses of the Lenders and the Revolving
Commitments of, and principal amount of the Loans owing to, each Lender, and the
Letters of Credit outstanding, from time to time (the "REGISTER"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each Loan Party and each Credit Party may treat each party
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this Agreement and
extend or participate in the Extensions of Credit provided herein, the Borrower
makes the following representations and warranties to the Credit Parties:
4.1. ORGANIZATION AND POWER
Each of the Borrower and its Subsidiaries (i) is duly
organized or formed, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and to carry on its business as now conducted, and (iii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the nature of the business conducted therein or the property owned by it
therein makes such qualification necessary, except where such failure to qualify
or be in good standing, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse effect.
4.2. AUTHORIZATION; ENFORCEABILITY
Each Initial Transaction and each other transaction
contemplated by the Loan Documents (other than the Pending Acquisitions) is
within the corporate power of the Borrower and has been duly authorized by its
Managing Person and, if required, by any other Person, including holders of its
Capital Stock. On and after the date a Pending Acquisition is consummated, such
Pending Acquisition and each transaction contemplated by the Loan Documents and
the Pending Acquisition Documents related to such Pending Acquisition will be
within the corporate, partnership or other analogous powers of each of the
Borrower and each Subsidiary party thereto and will have been duly authorized by
its Managing Person and, if required, by any other Person including holders of
its Capital Stock. Each Loan Document has been validly executed and delivered by
each Loan Party party thereto and constitutes a legal, valid and binding
obligation of each such Loan Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject
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to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
4.3. APPROVALS; NO CONFLICTS
(a) Except as provided on Schedule 4.3, none of the Initial
Transactions or any other transaction contemplated by the Loan Documents (other
than the Pending Acquisitions) (i) requires any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority
or any other Person, except such as have been obtained or made and are in full
force and effect, (ii) will violate any applicable law, rule or regulation or
the Organizational Documents of the Borrower or any Subsidiary or any order of
any Governmental Authority, (iii) will violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any
Subsidiary or their assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any Subsidiary, and (iv) will result in
the creation or imposition of any Lien on any asset of the Borrower or any
Subsidiary other than the Permitted Liens.
(b) On and after the date of the consummation of a Pending
Acquisition, except as provided in the Pending Acquisition Documents related
thereto, no transaction contemplated by such Pending Acquisition Documents (i)
will require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority or any other Person, except such as
have been obtained or made and are in full force and effect, (ii) will violate
any applicable law, rule or regulation or the Organizational Documents of the
Borrower or any Subsidiary or any order of any Governmental Authority, (iii)
will violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any Subsidiary or their assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or
any Subsidiary, and (iv) will result in the creation or imposition of any Lien
on any asset of the Borrower or any Subsidiary other than the Permitted Liens.
4.4. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
(a) The Borrower has heretofore furnished or caused to be
furnished to each Credit Party the reviewed consolidated balance sheet of the
Borrower as of December 31, 1995 and December 31, 1996, and the unaudited
consolidated balance sheet of the Borrower as of December 31, 1997, and the
reviewed consolidated statements of income and cash flows of the Borrower for
the fiscal years ended December 31, 1995 and December 31, 1996, and the
unaudited consolidated statements of income and cash flows of the Borrower for
the fiscal year ended December 31, 1997 (collectively, the "HISTORICAL ALLIED
FINANCIAL STATEMENTS"). Except as provided on Schedule 4.4(a), the Historical
Allied Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP on a consistent basis throughout the periods indicated and
present fairly, in all material respects, the financial position, results of
operations and changes in financial position of the Borrower as of the indicated
dates and for the indicated periods and are
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54
consistent with the books and records of the Borrower (which books and records
are correct and complete. Except as fully reflected in such financial
statements, there are no material liabilities required by GAAP to be reflected
on the Borrower's balance sheet or notes thereto that are not so reflected in
such balance sheet or note thereto that are not so reflected in the Historical
Allied Financial Statements, nor any other obligations (whether absolute,
contingent or otherwise) which are (individually or in the aggregate) material
(in amount or to the conduct of the Business of the Borrower or any Subsidiary).
(b) Since December 31, 1997, except for the Transactions, each
of the Borrower and each Subsidiary which was a Subsidiary as of such date has
conducted its business only in the ordinary course and there has been no
Material Adverse change.
(c) Since the date of its acquisition (or if not acquired, its
creation), each Subsidiary has conducted its business only in the ordinary
course and there has been no Material Adverse change.
4.5. PROPERTIES, ETC.
(a) Each of the Borrower and each Subsidiary has (and after
giving effect to the Allied Recapitalization and each Pending Acquisition, will
have) good and marketable title to, or valid leasehold interests in, all of its
property, real and personal, material to its business, subject to no Liens,
except Permitted Liens and except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Borrower and each Subsidiary owns or is
licensed to use (and after giving effect to the Allied Recapitalization and each
Pending Acquisition, will have) all Intellectual Property material to its
business, and the use thereof by the Borrower or any Subsidiary does not (and
after giving effect to the Allied Recapitalization and each Pending Acquisition,
will not) conflict with or infringe upon the valid rights of others, except for
any such conflicts or infringements that individually are in the aggregate,
could not reasonably be expected to result in a Material Adverse effect.
(c) No contract, lease or other agreement to which the
Borrower, any Pending Acquisition Target or any of their respective Subsidiaries
is a party will lapse, be cancelled or otherwise terminate, which lapse,
cancellation or termination, could reasonably be expected to result in a
Material Adverse effect.
4.6. LITIGATION
Except as set forth on Schedule 4.6, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority (whether purportedly on behalf of the Borrower or any Subsidiary)
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any Subsidiary, or maintained by the Borrower
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55
or any Subsidiary or which may affect the property of any the Borrower or any
Subsidiary, (i) that, in the good faith opinion of the Borrower, would reason
ably be expected to have an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse effect or (ii) that involve any of the
Transactions. Since the Effective Date, there has been no change in the status
of any matter disclosed on Schedule 4.6 that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
effect.
4.7. ENVIRONMENTAL MATTERS
Except as set forth on Schedule 4.7 and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse effect, neither the Borrower nor any
Subsidiary has (i) received written notice or otherwise learned of any claim,
demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to result in a Material Adverse effect,
arising in connection with any non- compliance with or violation of the
requirements of any applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Substance (as defined
below) or to health and safety matters (collectively, "ENVIRONMENTAL LAWS"),
(ii) to the best knowledge of the Borrower, any threatened or actual liability
in connection with the release or threatened release of any Hazardous Substance
into the environment which individually or in the aggregate could reasonably be
expected to result in a Material Adverse effect, (iii) received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any Hazardous Substance into
the environment for which the Borrower or any Subsidiary is or would be liable,
which liability could reasonably be expected to result in a Material Adverse
effect, or (iv) has received notice that any the Borrower or any Subsidiary is
or may be liable to any Person under any Environmental Law, which liability
could reasonably be expected to result in a Material Adverse effect. Each of the
Borrower and each any Subsidiary is in compliance with the financial
responsibility requirements of Environmental Laws to the extent applicable,
except in those cases in which the failure so to comply would not reasonably be
expected to result in a Material Adverse effect. For purposes hereof, "HAZARDOUS
SUBSTANCE" shall mean any hazardous or toxic substance, material, waste or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes, radioactive materials or any other substance or waste regulated
pursuant to any Environmental Law. Since the Effective Date, there has been no
change in the status of any matter disclosed on Schedule 4.7 that, individually
or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse effect.
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4.8. COMPLIANCE WITH LAWS AND AGREEMENTS; NO DEFAULT
Each of the Borrower and each Subsidiary is in compliance with
all laws, regulations and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
effect. No Default has occurred and is continuing.
4.9. INVESTMENT COMPANIES AND OTHER REGULATED ENTITIES
None of the Borrower, any Subsidiary nor any Person controlled
by, controlling, or under common control with, the Borrower or any Subsidiary,
is (i) an "investment company" as defined in, or subject to regulation under,
the Investment Company Act of 1940, as amended, (ii) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935 or the Federal Power Act, as amended, or (iii) subject to any
statute or regulation which prohibits or restricts the incurrence of
Indebtedness for borrowed money, including statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
4.10. FEDERAL RESERVE REGULATIONS
(a) Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. After giving
effect to each Transaction and the making of each Extension of Credit, Margin
Stock will constitute less than 25% of the assets (as determined by any
reasonable method) of the Borrower and its Subsidiaries.
(b) No part of the proceeds of any Extension of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of Regulation G, U or X.
4.11. ERISA
Each Pension Plan is in compliance with ERISA and the Code,
where applicable, in all material respects and no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse effect. The present value of all
accumulated benefit obligations under each Pension Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $100,000 the fair market value of the assets
of such Pension Plan, and the present value of all accumulated benefit
obligations of all
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underfunded Pension Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $100,000 the fair market value of the assets of all such underfunded
Pension Plans.
4.12. TAXES
Each of the Borrower and each Subsidiary has timely filed or
caused to be filed all tax returns and reports required to have been filed and
has paid, or caused to be paid, all Taxes required to have been paid by it
except (i) Taxes being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary, as applicable, has set aside on its
books adequate reserves, or (ii) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse effect.
4.13. SUBSIDIARIES
(a) As of the Effective Date, (i) the Borrower has only the
Subsidiaries set forth on, and the authorized, issued and outstanding Capital
Stock of the Borrower and its Subsidiaries is as set forth on, Schedule 4.13 and
(ii) the ownership interests in each Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned beneficially and of record by
the Persons set forth on such Schedule 4.13, free and clear of all Liens (other
than Permitted Liens).
(b) As of the date of the consummation of a Pending
Acquisition in which the Pending Acquisition Target becomes a Subsidiary of the
Borrower (and after giving effect to the recapitalization or cancellation of any
shares of such Pending Acquisition Target contemporaneously with or immediately
following the consummation of such Pending Acquisition, (i) the authorized,
issued and outstanding Capital Stock of each such Subsidiary will be as set
forth on, Schedule 4.13 as amended by the Borrower in accordance with Section
8.5(f)(vi), and (ii) the ownership interests in each Subsidiary will be duly
authorized, validly issued, fully paid and nonassessable and are owned
beneficially and of record by the Persons set forth on such Schedule 4.13, free
and clear of all Liens (other than Permitted Liens).
(c) Except as set forth on Schedule 4.13, neither the Borrower
nor any Subsidiary has issued any securities convertible into, or options or
warrants for, any common or preferred equity securities thereof and there are no
agreements, voting trusts or understandings binding upon the Borrower or any
Subsidiary with respect to the voting securities of any Subsidiary or affecting
in any manner the sale, pledge, assignment or other disposition thereof,
including any right of first refusal, option, redemption, call or other right
with respect thereto, whether similar or dissimilar to any of the foregoing.
4.14. ABSENCE OF CERTAIN RESTRICTIONS
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No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Borrower or any Subsidiary is a party
(other than this Agreement), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary to make Restricted Payments or loans
to, to make any advance on behalf of, or to repay any Indebtedness to, the
Borrower or to another Subsidiary.
4.15. LABOR RELATIONS
As of the Effective Date, there are no material controversies
pending that involve the Borrower or any Subsidiary which might result in a
Material Adverse effect.
4.16. INSURANCE
Schedule 4.17 sets forth a description of all insurance
maintained by or on behalf of the Borrower and the Subsidiaries as of the
Effective Date. As of the Effective Date, all premiums in respect of such
insurance that are due and payable have been paid.
4.17. NO MISREPRESENTATION
The Borrower has disclosed to each Credit Party all
agreements, instruments and corporate or other restrictions to which it or any
Subsidiary is subject, and all other matters known to it, that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
effect. No certificate or report from time to time furnished by any of the Loan
Parties in connection with the Transactions contains or will contain a
misstatement of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements therein contained not
misleading in the light of the circumstances under which made, provided that any
projections or pro-forma financial information contained therein are based upon
good faith estimates and assumptions believed by the Borrower to be reasonable
at the time made, it being recognized by the Credit Parties that such
projections as to future events are not to be viewed as facts, and that actual
results during the period or periods covered thereby may differ from the
projected results.
4.18. TRANSACTION DOCUMENTS
On and after the consummation of each Transaction, the
Transaction Documents applicable thereto are in full force and effect, and
neither the Borrower nor any Subsidiary has entered into, or agreed to, any
amendment, supplement, modification or waiver of any term or condition of any
Transaction Document in any way which would adversely effect any Credit Party.
4.19. FINANCIAL CONDITION
On and after each Borrowing Date and each date upon which a
Transaction shall be consummated, neither the Borrower nor any Subsidiary
Guarantor is Insolvent.
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4.20. YEAR 2000
All of the material computer software, computer firmware,
computer hardware (whether general or special purpose) and other similar or
related items of automated, computerized and/or software system(s) that are used
or relied on by the Borrower or any Subsidiary in the conduct of its business
will not malfunction, will not cease to function, will not generate incorrect
data, and will not produce incorrect results when processing, providing and/or
receiving, (i) data-related data into and between the twentieth and twenty-first
centuries and (ii) date-related data in connection with any valid date in the
twentieth and twenty-first centuries.
4.21. MATERIAL AGREEMENTS
The Borrower has not received notice from any party to any
agreements, the cancellation or termination of which individually or in the
aggregate could reasonably be expected to result in a Material Adverse effect,
that such agreement or agreements would be cancelled, not renewed or otherwise
terminated as a result of the consummation of any of the Transactions.
ARTICLE 5. CONDITIONS TO FIRST EXTENSION OF CREDIT
In addition to the conditions precedent set forth in Article 6, the
obligation of the Credit Parties to make the initial Extension of Credit shall
not become effective until each of the following conditions precedent have been
satisfied (or waived in accordance with Section 11.1):
5.1. EVIDENCE OF ACTION
The Administrative Agent shall have received a certificate,
dated the Effective Date, of the Secretary or Assistant Secretary or other
analogous counterpart of each Loan Party:
(a) attaching a true and complete copy of the resolutions of
its Managing Person and of all other documents evidencing all necessary
corporate, partnership or other action (in form and substance satisfactory to
the Administrative Agent) taken to authorize the Loan Documents to which it is a
party and the transactions contemplated thereby;
(b) attaching a true and complete copy of its Organizational
Documents;
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(c) setting forth the incumbency of its officer or officers
(or other analogous counterpart) who may sign the Loan Documents, including
therein a signature specimen of such officer or officers (or other analogous
counterpart); and
(d) attaching a certificate of good standing of the Secretary
of State of the jurisdiction of its formation and of each other jurisdiction in
which it is qualified to do business, except, in the case of such other
jurisdiction, when the failure to be in good standing in such jurisdiction would
not result in a Material Adverse effect.
5.2. THIS AGREEMENT
The Administrative Agent (or Special Counsel) shall have
received, in respect of each Person listed on the signature pages of this
Agreement, either (i) a counterpart signature page hereof signed on behalf of
such Person, or (ii) written evidence satisfactory to the Administrative Agent
(which may include a facsimile transmission of a signed signature page of this
Agreement) that a counterpart signature page hereof has been signed on behalf of
such Person.
5.3. NOTES
The Administrative Agent shall have received a Note for each
Lender, dated the Effective Date, duly executed by a duly authorized officer of
the Borrower.
5.4. OPINION OF COUNSEL TO THE LOAN PARTIES
The Administrative Agent shall have received a favorable
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P, counsel to the Loan Parties, addressed to the
Credit Parties (and permitting Special Counsel to rely thereon), dated the
Effective Date, substantially in the form of Exhibit E, together with such
opinions of local counsel as the Administrative Agent may reasonably require.
5.5. SECURITY DOCUMENTS, SEARCH REPORTS, ETC.
The Administrative Agent (or Special Counsel) shall have
received a counterpart of the Security Agreement, dated as the Effective Date,
signed by the Borrower (or a facsimile of a signature page thereof signed by the
Borrower) together with the following:
(a) a completed Perfection Certificate, dated the Effective
Date and signed by a Financial Officer of the Borrower, together with all
attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings and the results of trademark,
tax and judgment lien searches made with respect to the Borrower and each
Subsidiary Guarantor in the jurisdictions contemplated by the Perfection
Certificate and such other jurisdictions as the Administrative Agent may
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reasonably request, and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 8.2 or have been released;
(b) Instruments (as defined in the Security Agreement)
constituting Collateral, duly indorsed in blank by the Borrower, as the case may
be;
(c) such Uniform Commercial Code Financing Statements,
executed by the Borrower, as shall be reasonably requested by the Administrative
Agent; and
(d) such other documents as the Administrative Agent may
reasonably require in connection with the creation and perfection of the
security interests intended to be granted under the Security Documents.
5.6. ALLIED RECAPITALIZATION; OFFICER'S CERTIFICATE
(a) The Allied Recapitalization shall have been (or
simultaneously with the making of the first Extension of Credit is being)
consummated in accordance with the terms of the Allied Recapitalization
Documents, with no waiver of any term or condition thereof without the written
consent of the Administrative Agent.
(b) All outstanding Indebtedness of Allied and its
Subsidiaries shall have been (or simultaneously with the making of the first
Extension of Credit is being) paid in full and all agreements with respect
thereto have been cancelled or terminated, and all Liens, if any, securing the
same shall have been terminated (and attaching evidence satisfactory to the
Administrative Agent of such Lien terminations).
(c) All approvals and consents of all Persons required to be
obtained in connection with the consummation of the Initial Transactions have
been obtained, all required notices have been given and all required waiting
periods have expired.
(d) The transaction costs incurred by the Borrower in
connection with the Initial Transactions shall not be greater than $3,000,000.
(e) The Administrative Agent shall have received a certificate
of an officer of the Borrower, dated the Effective Date, as to the matters set
forth in subsections (a) through (d) above.
5.7. ALLIED RECAPITALIZATION DOCUMENTS
The Administrative Agent shall have received a certificate of
an officer of the Borrower, in all respects satisfactory to the Agent and dated
the Effective Date, (i) attaching a true and complete copy of each of the fully
executed Allied Recapitalization
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Documents which shall be in all respects satisfactory to the Administrative
Agent and (ii) certifying that each thereof is in full force and effect.
5.8. LEGAL AND CAPITAL STRUCTURE
The legal and capital structure of each of Credit Party shall
in all respects be satisfactory to the Administrative Agent.
5.9. ABSENCE OF MATERIAL ADVERSE CHANGE
Since December 31, 1997, there shall have occurred no Material
Adverse change and the Administrative Agent shall have received a certificate of
a Financial Officer of the Borrower to the foregoing effect.
5.10. COMPLIANCE CERTIFICATE
The Administrative Agent shall have received a Compliance
Certificate signed by a Financial Officer of the Borrower, in all respects
reasonably satisfactory to the Administrative Agent, dated the Effective Date
and (i) stating that the Borrower is in compliance with all covenants on a
pro-forma basis after giving effect to each Initial Transaction, and (ii)
attaching a copy of a pro-forma consolidated balance sheet of the Borrower
utilized for purposes of preparing such Compliance Certificate, which pro-forma
consolidated balance sheet presents the Borrower's good faith estimate of its
pro-forma consolidated financial condition at the date thereof, after giving
effect to the Initial Transactions.
5.11. LEVERAGE RATIO
The Leverage Ratio (after giving effect to the Initial
Transactions) shall not exceed 3.30:1.00, and the Administrative Agent shall
have received a Certificate signed by a Financial Officer of the Borrower, in
all respects reasonably satisfactory to the Administrative Agent, dated the
Effective Date setting forth a calculation thereof.
5.12. SOLVENCY CERTIFICATE
The Administrative Agent shall have received a certificate of
a Financial Officer of the Borrower, in all respects reasonably satisfactory to
the Administrative Agent certifying that, to the best knowledge of such
Financial Officer, after giving effect to the Initial Transactions neither the
Borrower nor any Subsidiary Guarantor is Insolvent.
5.13. PROPERTY, PUBLIC LIABILITY AND OTHER INSURANCE
The Administrative Agent shall have received a certificate of
all insurance maintained by the Borrower and its Subsidiaries in form and
substance reasonably satisfactory
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to the Administrative Agent, together with the endorsements required by Section
5.4 of the Security Agreement.
5.14. FEES
The Administrative Agent shall have received all fees and
other amounts due and payable to the Administrative Agent under the Loan
Documents on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of the fees and disbursements of Special Counsel and
all other out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
5.15. OTHER DOCUMENTS
The Administrative Agent shall have received such other
documents, each in form and substance reasonably satisfactory to it, as it shall
reasonably request.
ARTICLE 6. CONDITIONS TO EACH TERM LOAN AND EACH OTHER EXTENSION OF CREDIT
6.1. TERM LOANS AFTER EFFECTIVE DATE
The obligation of each Credit Party to make any Term Loan after the
Effective Date shall be subject to the satisfaction of the following conditions
precedent as of the date thereof:
(a) such Term Loan is being made in connection with the
consummation of an Acquisition with respect to which all conditions set forth in
Section 8.5 shall have been satisfied; and
(b) the amount of such Term Loan together with the aggregate
amount of all Term Loans previously borrowed shall not exceed either (i) the
aggregate amount of all Equity Contributions made on or before such date or (ii)
50% of the sum of the aggregate Acquisition Consideration (including transaction
costs other than fees payable to ▇▇▇▇▇▇ or any of its Affiliates) paid in cash
on or before such date in connection with Permitted Acquisitions (net of any
post-closing adjustments made in connection therewith which resulted in a
reduction to, or refund of any portion of, such Acquisition Consideration),
provided, however, that on and after the date on which the aggregate amount of
Equity Contributions shall equal or exceed $44,200,000, this subsection (b)
shall cease to apply.
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6.2. ALL EXTENSION OF CREDIT
The obligation of each Credit Party to make any Extension of Credit
(other than a participation in a Letter of Credit) under this Agreement shall be
subject to the satisfaction of the following conditions precedent as of the date
thereof:
(a) COMPLIANCE. On each Borrowing Date and after giving effect
to the Extensions of Credit thereon (i) no Default shall have occurred or be
continuing; and (ii) the representations and warranties contained in the Loan
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on such
Borrowing Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date. Each
Extension of Credit and each Credit Request therefor shall constitute a
certification by the Borrower as of such Borrowing Date that each of the
foregoing matters is true and correct in all respects.
(b) CREDIT REQUEST. With respect to each Extension of Credit,
the Administrative Agent shall have received a Credit Request, executed by a
duly authorized officer of the Borrower.
(c) LAW. Such Extension of Credit shall not be prohibited by
any applicable law, rule or regulation.
ARTICLE 7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Commitment is in effect and
until the principal of, and interest on, each Loan, all Reimbursement
Obligations, all Fees and all other amounts payable under the Loan Documents
shall have been paid in full:
7.1. FINANCIAL STATEMENTS AND INFORMATION
The Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal
year:
(i) a copy of the audited consolidated
balance sheet and related statements of income, stockholders' equity
and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
all reported on by the Accountants (without (x) a "going concern" or
like qualification or exception, (y) any qualification or exception as
to the scope of such audit or (z) any qualification or exception which
relates to the
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treatment or classification of any item and which, as a condition to
the removal of such qualification, would require an adjustment to such
item, the effect of which would be to cause the Borrower to be in
default of any of its obligations under Section 8.14 (each, an
"IMPERMISSIBLE QUALIFICATION")) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiarie on a consolidated basis in accordance with
GAAP consistently applied;
(ii) a copy of its unaudited consolidating
balance sheet and related statements of income, stockholders' equity
and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
certified by a Financial Officer of the Borrower, as being complete and
correct in all material respects and as presenting fairly the
consolidating financial condition and the consolidating results of
operations of the Borrower and the Subsidiaries.
(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year:
(i) a copy of its consolidated balance sheet
and the related consolidated statements of income and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of
the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(ii) a copy of its consolidating balance
sheet and related statements of income, and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of such fiscal
year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, certified by one of
its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidating basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, together with a schedule of
other unaudited financial information consisting of consolidating or
combining details in columnar form with such consolidating Subsidiaries
separately identified, in accordance with GAAP consistently applied;
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(c) concurrently with any delivery of financial statements
under subsections (a) or (b) above, a certificate (a "COMPLIANCE CERTIFICATE")
of a Financial Officer of the Borrower, substantially in the form of Exhibit D,
(i) certifying as to whether a Default has occurred and, if so, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Section 8.14 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial
statements referred to in Section 4.4 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such Compliance Certificate;
(d) concurrently with any delivery of financial statements
under subsection (a) above, a certificate executed by a Financial Officer of the
Borrower (i) setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of such certificate or the date of the most recent
certificate delivered pursuant to this subsection (e), (ii) certifying that all
Uniform Commercial Code financing statements or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
re-registrations, containing a description of the Collateral, have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interest of the Administrative Agent for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period) and (iii) identifying in the format of Schedules 7, 8 and 10, as
applicable, Equity Interests (as defined in the Security Agreement), Instruments
(as defined in the Security Agreement) and Intellectual Property of the Borrower
and each Subsidiary Guarantor in existence on the date thereof and not then
listed on such Schedules or previously so identified to the Administrative
Agent;
(e) concurrently with any delivery of financial statements
under subsections (a) and (b) above, a certificate executed by a Financial
Officer certifying as to (i) the then outstanding Existing Letters of Credit and
the collateral pledged to the issuers of such Existing Letters of Credit, and
(ii) all investments (including such information as shall be sufficient to
enable the Administrative Agent to make a determination as to whether, in its
good faith determination, such investments and the earnings therefrom
sufficiently reduce the exposure of the Borrower and the Subsidiaries to
interest rate fluctuations);
(f) promptly after the same become publicly available, copies
of all material periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the SEC or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;
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(g) promptly after the same become available (but in no event
more than 60 days after the Effective Date with respect to the Allied
Recapitalization, and 60 days after the consummation of a Pending Acquisition)
copies of the audited 1997 year end financial statements for each of the
Borrower and the applicable Pending Acquisition Target; and
(h) promptly following any request therefor, such other
information regarding the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as any Credit Party may reasonably request.
7.2. NOTICE OF MATERIAL EVENTS
The Borrower shall furnish to the Administrative Agent and
each Lender, prompt written notice of the following together with a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and, if applicable,
any action taken or proposed to be taken with respect thereto:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could in the
good faith opinion of the Borrower reasonably be expected to result in a
Material Adverse effect;
(c) any lapse, refusal to renew or extend or other
termination of any material license, permit, franchise or other authorization
issued to the Borrower or any Subsidiary by any Person or Governmental
Authority, which lapse, refusal or termination, could reasonably be expected to
result in a Material Adverse effect;
(d) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse effect;
(e) the occurrence of any Equity Issuance resulting
in Net Cash Proceeds;
(f) the occurrence of any insured damage to any
portion of any Collateral or the commencement of any action or proceeding for
the taking of any Collateral or any part thereof or interest therein under power
of eminent domain or by condemnation or similar proceeding the value of which
would reasonably be expected to exceed (i) $100,000 until the consummation of
any two of the Pending Acquisitions and (ii) $250,000 thereafter; or
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(g) the occurrence of any other development that has
or could reasonably be expected to result in, a Material Adverse effect.
7.3. EXISTENCE: CONDUCT OF BUSINESS
The Borrower shall, and shall cause each Subsidiary to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect (i) its legal existence (provided that the foregoing shall not
prohibit any merger or consolidation not prohibited by Section 8.3), and (ii)
all rights, licenses, permits, privileges and franchises the absence of which
would reasonably be expected to have a Material Adverse effect.
7.4. PAYMENT OF OBLIGATIONS
The Borrower shall, and shall cause each Subsidiary to, pay
and discharge when due, its obligations, including obligations with respect to
Taxes, which, if unpaid, could reasonably be expected to result in a Material
Adverse effect, except where (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings diligently conducted, (ii)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (iii) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse effect.
7.5. MAINTENANCE OF PROPERTIES
The Borrower shall, and shall cause each Subsidiary to,
maintain, protect and keep in good repair, working order and condition (ordinary
wear and tear excepted) at all times, all of its property other than property,
the loss of which would not reasonably be expected to have a Material Adverse
effect.
7.6. INSURANCE
The Borrower shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable insurance companies (i) insurance
in at least such amounts and against at least such risks (but including in any
event public liability and, within 90 days after the Effective Date, business
interruption coverage) as are usually insured against in the same general area
by companies engaged in the same or a similar business and (ii) such other
insurance as is required pursuant to the terms of any Security Document, and
furnish to the Administrative Agent, upon written request, full information as
to the insurance carried.
7.7. BOOKS AND RECORDS: INSPECTION RIGHTS
The Borrower shall, and shall cause each Subsidiary to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and
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transactions in relation to its business and activities and, at all reasonable
times upon reasonable prior notice, permit representatives of the Credit Parties
to (i) visit the offices of the Borrower and each Subsidiary, (ii) examine such
books and records and Accountants' reports relating thereto, (iii) make copies
or extracts therefrom, (iv) discuss the affairs of the Borrower and each such
Subsidiary with the respective officers thereof, (v) to examine and inspect the
property of the Borrower and each such Subsidiary and (vi) meet and discuss the
affairs of the Borrower and each such Subsidiary with the Accountants.
7.8. COMPLIANCE WITH LAWS
The Borrower shall, and shall cause each Subsidiary to, comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse effect.
7.9. ADDITIONAL SUBSIDIARIES
(a) DOMESTIC SUBSIDIARIES. Subject to Section 7.14, in the
event that on or after the Effective Date, any Person shall become a Domestic
Subsidiary, or any Subsidiary (other than a Subsidiary Guarantor) shall at any
time be a Domestic Subsidiary, the Borrower shall (i) notify the Administrative
Agent in writing thereof within three Business Days thereof, (ii) cause such
Person to execute and deliver to the Administrative Agent the Subsidiary
Guarantee or, if the Subsidiary Guarantee is then in effect, a Guarantee
Supplement (as defined therein), a Security Agreement Supplement (as defined in
the Security Agreement) and to become a party to each other applicable Security
Document in the manner provided therein within five Business Days thereafter and
to promptly take such actions to create and perfect Liens on such Person's
assets to secure such Person's obligations under the Loan Documents as the
Administrative Agent or the Required Lenders shall reasonably request, (iii)
cause any shares of Capital Stock of, or promissory notes evidencing
Indebtedness of, such new Domestic Subsidiary owned by or on behalf of any Loan
Party to be pledged pursuant to the Security Agreement within five Business Days
thereafter, (iv) cause each such new Domestic Subsidiary to deliver to the
Administrative Agent any shares of Capital Stock or promissory notes evidencing
Indebtedness of any Subsidiary that are owned by or on behalf of such new
Domestic Subsidiary within five Business Days after such Subsidiary is formed or
acquired (except that, if any such Subsidiary is a Foreign Subsidiary, shares of
Capital Stock of such Person to be so pledged may be limited as provided in
subsection (b) below and, if requested by the Administrative Agent with respect
to the pledge of Capital Stock of a Foreign Subsidiary, the Administrative Agent
shall receive the documents referred to in subsection (b)(iii) below), and (v)
deliver to the Administrative Agent a Perfection Certificate with respect to
such Subsidiary and such additional Financing Statements, Grants of Security
Interest and Powers of Attorney (as each such term is defined in the Security
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Agreement) certificates, instruments, opinions and other documents as the
Administrative Agent may request.
(b) FOREIGN SUBSIDIARIES. In the event that on or after the
Effective Date, any Person shall become a Foreign Subsidiary, the Borrower shall
(i) notify the Administrative Agent in writing thereof within three Business
Days thereof, (ii) cause such Person to execute and deliver to the
Administrative Agent an Intercompany Subordination Agreement (iii) cause the
lesser of (x) 65% of the outstanding shares of Capital Stock of such Foreign
Subsidiary or (y) all of such shares owned by the Loan Parties, together with
all promissory notes evidencing Indebtedness of, such Foreign Subsidiary are to
any Loan Party to be pledged pursuant to the Security Agreement within five
Business Days thereafter, provided, that if requested by the Administrative
Agent with respect to the pledge of Capital Stock of a Foreign Subsidiary,
deliver to the Administrative Agent an additional pledge agreement, in form and
substance reasonably satisfactory to the Administrative Agent (each an
"ADDITIONAL PLEDGE AGREEMENT") and an opinion of counsel (including counsel
practicing under the laws of the jurisdiction under which such Foreign
Subsidiary was formed) with respect to the enforceability of such Pledge
Agreement or Additional Pledge Agreement and the validity and perfection of the
Lien granted therein and (iv) deliver to the Administrative Agent such
certificates, instruments and opinions as the Administrative Agent may request.
7.10. ADDITIONAL COLLATERAL
Subject to Section 7.14, if after the Effective Date, the
Borrower or any other Loan Party acquires any property which would constitute
Collateral, the Borrower shall, and shall cause each such Loan Party to, execute
any and all documents, financing statements, agreements and instruments, Grants
of Security Interests and take all such further actions (including the filing
and recording of financing statements, fixture filings, mortgages, deeds of
trust, control agreements and other documents), that may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to effectuate the Transactions or to grant, preserve,
protect or perfect the Liens created or intended to be created by the Security
Documents or the validity or priority of any such Lien, all at the expense of
the Loan Parties.
7.11. HEDGING AGREEMENTS
Within 30 days after the Administrative Agent notifies the
Borrower that in the good faith determination of the Administrative Agent (which
determination shall be binding on the Borrower), the investments of the Borrower
and the Subsidiaries and the earnings therefrom do not sufficiently reduce the
exposure of the Borrower and the Subsidiaries to interest rate fluctuations, the
Borrower shall enter into and maintain Hedging Agreements, in form and substance
reasonably satisfactory to the Administrative Agent, with respect to an amount
equal to not less than 50% of the Term Loan Exposure at any time.
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7.12. CLASSIC MORTGAGES
Not later than two Business Days after the consummation of the
Classic Acquisition, the transactions contemplated by the Classic Mortgage
Purchase Documents shall have been consummated in accordance with their terms
with no waiver of any term or condition thereof without the consent of the
Administrative Agent, and the Administrative Agent shall have received a
certificate of an officer of the Borrower to the foregoing effect.
7.13. EXISTING LETTERS OF CREDIT
The Borrower shall use its best efforts to cause Letters of
Credit issued pursuant to this Agreement to be substituted for all Existing
Letters of Credit issued for the account of a Pending Acquisition Target at the
closing of the Pending Acquisition thereof except to the extent that such
substitution cannot be effected at a reasonable cost or is not practicable as a
result of the lack of time to obtain the necessary consents thereto and effect
such substitution prior to such closing. To the extent that such substitution is
not made with respect to all such Existing Letters of Credit prior to the
closing of the related Pending Acquisition, the Borrower shall use its best
efforts to cause such substitution to be made as soon as practicable thereafter,
provided that Letters of Credit issued pursuant to this Agreement shall
substituted for all Existing Letters of Credit no later than December 31, 1998.
7.14. SUMMIT BANK CONTROL AGREEMENT
Notwithstanding anything to the contrary contained in any Loan
Document, not later than 30 days after the Effective Date, the Borrower shall
deliver to the Agent a control agreement in all respects reasonably satisfactory
to the Agent, signed by Haddon and Summit Bank with respect to the securities
account established by Summit Bank for Haddon designated as account number
1911278002.
ARTICLE 8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Commitment is in effect and
until the principal of, and interest on, each Loan, all Reimbursement
Obligations, all Fees and all other amounts payable under the Loan Documents
shall have been paid in full:
8.1. INDEBTEDNESS
The Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any liability for Indebtedness,
except:
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(a) Indebtedness due under the Loan Documents;
(b) Indebtedness of the Borrower or any Subsidiary existing on
the Effective Date as set forth on Schedule 8.1 and in respect of any Existing
Letter of Credit, but not, in the case of any Existing Letter of Credit, any
extensions, renewals and replacements thereof;
(c) Indebtedness of the Borrower to any Subsidiary or of
Subsidiaries to the Borrower or other Subsidiaries, provided that (A)
Indebtedness of the Borrower or any Subsidiary Guarantor to a Subsidiary that is
not a Subsidiary Guarantor shall be subordinated pursuant to the Intercompany
Subordination Agreement, and (B) immediately after giving effect to any
Indebtedness of any Subsidiary that is not a Subsidiary Guarantor to the
Borrower or any Subsidiary Guarantor, the Available Intercompany Investment
Amount shall not be less than $1.00;
(d) Guarantees by the Borrower of Indebtedness of any
Subsidiary or Guarantees by any Subsidiary of Indebtedness of the Borrower or of
any other Subsidiary, provided that with respect to Guarantees by the Borrower
or any Subsidiary Guarantor of Indebtedness of a Subsidiary that is not a
Subsidiary Guarantor, immediately after giving effect thereto, the Available
Intercompany Investment Amount shall not be less than $1.00;
(e) (i) Indebtedness of the Borrower or any Subsidiary (A)
incurred to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations, (B) assumed in connection
with the acquisition of any such assets or (C) secured by a Lien on any such
assets, (ii) Indebtedness of any Person that becomes a Subsidiary of the
Borrower after the Effective Date, or (iii) extensions, renewals and
replacements of any Indebtedness under this subsection 8.1(e) that do not
increase the outstanding principal amount thereof, provided that (x)
Indebtedness under this subsection 8.1(e) shall not (1) exceed $5,000,000 in
aggregate principal amount at any one time outstanding, and (2) except with
respect to Indebtedness under clause (i)(A) of this Section 8.1(e), be created,
assumed or incurred in contemplation of or in connection with any such
acquisition or such Person becoming a Subsidiary, and (3) immediately after
giving effect thereto, the Available Debt Amount shall not be less than $1.00;
(f) other unsecured Indebtedness of the Borrower or any
Subsidiary, excluding Indebtedness (A) of Subsidiaries to the Borrower or other
Subsidiaries or the Borrower to Subsidiaries, (B) under the Loan Documents, and
(C) Indebtedness subordinated to the Indebtedness under the Loan Documents
pursuant to a subordination agreement in form and substance satisfactory to the
Administrative Agent, provided that immediately after giving effect to such
other non-excluded Indebtedness, the Available Debt Amount shall not be less
than $1.00; and
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(g) other unsecured Indebtedness of the Borrower (the
"REFINANCING DEBT"), provided that: (i) no Default shall exist immediately
before and after giving effect thereto and all of the representations and
warranties contained in Article 4 shall be true and correct as if then made,
(ii) the terms and conditions of the note or other agreements pursuant to which
the Refinancing Debt is issued (collectively, the "REFINANCING DEBT DOCUMENTS")
are no less favorable taken as a whole to the Borrower than the terms and
conditions of this Agreement, (iii) the Refinancing Debt shall be either pari
passu with, or subordinated to, the Indebtedness under the Loan Documents, (iv)
the maturity of such Indebtedness is not earlier than one year after the
Maturity Date, (v) interest thereon is payable in cash and the rate thereon is
not in excess of the rate available for similar borrowings by similar borrowers
at the time of the incurrence of the Refinancing Debt, (vi) the Net Cash
Proceeds thereof are applied to the prepayment of the Loans and the permanent
reduction of the Aggregate Revolving Commitment pursuant to Sections 2.3 and
2.4, and (vii) the Administrative Agent receives a copy of the agreement,
indenture or other documents governing such Refinancing Debt, which shall be in
form and substance reasonably satisfactory to the Administrative Agent.
8.2. NEGATIVE PLEDGE
The Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any Lien upon any of its property,
whether now owned or hereafter acquired, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except for the following (collectively, "PERMITTED LIENS"):
(a) any Customary Lien;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the Effective Date and set forth on Schedule 8.2,
provided that (i) such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary, (ii) such Lien shall secure only those
obligations which it secures on the Effective Date and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof and (iii) such Lien shall not secure any obligations in respect of any
letter of credit;
(c) any Lien on any fixed or capital asset of the Borrower or
any Subsidiary, provided that such Lien shall exist at the time of the
acquisition of such asset, shall have been created contemporaneously with such
acquisition to secure the payment of the purchase price thereof or shall have
been incurred prior to the acquisition of such asset by the Borrower or such
Subsidiary, or prior to the time such Person became a Subsidiary of the
Borrower, but in any event such Lien shall not have been created in
contemplation of or in connection with the acquisition of such asset, or the
creation or acquisition of any Person that, after giving effect thereto, is a
Subsidiary of the Borrower, provided that (i) such Lien shall not apply to any
other property or assets of the Borrower or any Subsidiary
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(other than fixed assets which constitute fixtures thereon or accessions
thereto), (ii) at the time of acquisition of any such fixed asset, the aggregate
amount remaining unpaid on all liabilities secured by Liens on such fixed asset,
whether or not assumed by the Borrower or a Subsidiary, shall not exceed the
fair market value at the time of acquisition of such fixed asset (as determined
in good faith by the Board of Directors of the Borrower), (iii) at the time of
the incurrence of such liabilities and after giving effect thereto and to the
application of the proceeds thereof, no Default would exist; and (vi)
immediately after giving effect thereto, the Available Debt Amount shall not be
less than $1.00.
(d) Liens on Margin Stock, if and to the extent that the value
of the Margin Stock of the Borrower and its Subsidiaries exceeds 25% of the
assets (as determined by any reasonable method) of the Borrower and its
Subsidiaries.
8.3. FUNDAMENTAL CHANGES
The Borrower shall not, and shall not permit Subsidiaries to,
consolidate or merge into or with any other Person, or permit any other Person
to merge into or consolidate with it or any Subsidiary, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of transactions) all
or substantially all of its assets, or all or substantially all of any class of
the Capital Stock of any Subsidiary (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, or permit any Subsidiaries to do
any of the foregoing, except that so long as immediately before and after giving
effect thereto, no Default shall exist:
(a) the Borrower may merge with any Subsidiary Guarantor and
any Subsidiary Guarantor may merge with the Borrower or any other Subsidiary
Guarantor, provided that in connection with any merger involving the Borrower,
the Borrower shall be the survivor thereof;
(b) any Subsidiary which is not a Subsidiary Guarantor may
merge with any other Subsidiary which is not a Subsidiary Guarantor;
(c) any Subsidiary which is not a Subsidiary Guarantor may
merge with any Subsidiary Guarantor, and any Subsidiary Guarantor may merge with
any Subsidiary which is not a Subsidiary Guarantor, provided that (i)
immediately after giving effect to any such merger in which such Subsidiary
Guarantor is the survivor, the Available Intercompany Investment Amount shall
not be less than $1.00, (ii) with respect to any merger in which such Subsidiary
Guarantor is not the survivor, such merger shall be treated as a Disposition for
all purposes of Sections 2.4(c)(i) and 8.6(d);
(d) the Borrower or any Subsidiary may merge with any Person
that is not a Subsidiary, provided that (i) in connection with any such merger
involving the Borrower, the Borrower shall be the survivor thereof, (ii) with
respect to any such merger involving a Subsidiary in which, immediately after
giving effect thereto, the surviving
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Person is not a Subsidiary, such merger shall be treated as a Disposition for
all purposes of Sections 2.4(c)(i) and 8.6(d), (iii) with respect to any such
merger involving a Loan Party in which, immediately after giving effect thereto,
the surviving Person is a Subsidiary, provided that (A) if such Subsidiary is a
Domestic Subsidiary, (1) immediately after giving effect to any such merger, the
Available Other Investment Amount shall not be less than $1.00, and (2) such
merger shall be treated as an Acquisition for all purposes of Section 8.5 and
(B) if such Subsidiary is a Foreign Subsidiary, immediately after giving effect
to any such merger, the Available Intercompany Investment Amount shall not be
less than $1.00;
(e) any Subsidiary may make any Disposition permitted by
Sections 8.6(c) or (d);
(f) any Subsidiary other than a Subsidiary Guarantor may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; and
(g) after the consummation of the Initial Public Offering, the
Borrower may merge into a newly formed corporation incorporated under Delaware
law, with such Delaware corporation as the survivor, provided, however, (i) no
Default would exist immediately before or after giving effect thereto, (ii) such
surviving corporation shall have executed and delivered to the Administrative
Agent an assumption agreement in form and substance satisfactory to it pursuant
to which such surviving corporation assumes the obligations of the Borrower
under the Loan Documents, (iii) the surviving corporation executes and delivers
to the Administrative Agent such UCC-1 financing statements and other documents
as the Administrative Agent shall reasonably request in connection with the
perfection of the security interests granted under the Collateral Documents.
8.4. INVESTMENTS, LOANS, ADVANCES AND GUARANTEES
The Borrower shall not, and shall not permit any Subsidiary
to, purchase or otherwise acquire, hold or invest in any derivative product, or
any Capital Stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of any Person,
or make or permit to exist any investment or any other interest in, any other
Person, except:
(a) investments in Cash Equivalents and Investment Grade
Securities;
(b) subject to Section 7.12, investments existing on the
Effective Date as set forth on Schedule 8.4;
(c) investments by the Borrower or any Subsidiary in the
Capital Stock of or debt issued by the Borrower and investments by any
Subsidiary in the Capital Stock
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of or debt issued by any other Subsidiary, provided that (i) the proceeds of
such investment in a Borrower or a Subsidiary Guarantor shall be received by the
Borrower or such Subsidiary Guarantor, and (ii) immediately after giving effect
to each investment by the Borrower or any Subsidiary Guarantor in the Capital
Stock of or debt issued by any Subsidiary that is not a Subsidiary Guarantor,
the Available Intercompany Investment Amount shall not be less than $1.00;
(d) Acquisitions permitted by Section 8.5;
(e) purchases or other acquisitions (including through a
dividend or otherwise and whether in a single transaction or in a series of
related transactions) (i) by the Borrower or any Subsidiary of any property or
assets from any other Subsidiary or (ii) by any Subsidiary of any property or
assets from the Borrower or any other Subsidiary, provided that immediately
after giving effect to any such purchase or acquisition between a Loan Party, as
purchaser, and a Subsidiary which is not a Subsidiary Guarantor, as seller, the
Available Intercompany Investment Amount shall not be less than $1.00; and
(f) Guarantees permitted by Section 8.1(d) and Hedging
Agreements permitted by Section 8.8.
Notwithstanding anything in this Agreement to the contrary, all
customer deposits shall be invested in cash, Cash Equivalents and Investment
Grade Securities.
8.5. ACQUISITIONS
The Borrower shall not, and shall not permit any Subsidiary
to, at any time, make any purchase or other acquisition (including by way of a
dividend received or otherwise and whether in a single transaction or in a
series of related transactions and including each of the Pending Acquisitions)
of (i) any assets of any other Person that, taken together, constitute a
business unit, (ii) any Capital Stock of any other Person if, immediately
thereafter, such other Person would be a Subsidiary of the Borrower (iii) any
assets of any other Person otherwise not in the ordinary course of business, or
(iv) enter into any binding agreement to perform any transaction described in
clauses (i), (ii) or (iii) above which is not contingent on obtaining the
consent of the Required Lenders (each transaction described in clauses (i),
(ii), (iii) and (iv) above being referred to as an "ACQUISITION"), except that
the Borrower or any Subsidiary may make Acquisitions, provided that:
(g) no Acquisition other than a Pending Acquisition shall be
permitted unless the Allied Recapitalization and at least two Pending
Acquisitions shall have been consummated;
(h) no Default shall or would exist immediately before or
after giving effect to each such Acquisition, all of the representations and
warranties contained in
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Article 4 shall be true and correct as if then made, and the pro-forma Leverage
Ratio shall not exceed 3.10:1.00 (on a pro forma basis giving effect to such
Acquisition, any Indebtedness incurred in connection therewith, and taking into
account the earnings before interest, taxes, depreciation and amortization
(calculated in the manner of the calculation of EBITDA) of the Person or
business acquired and each other Person or business acquired during the
immediately preceding four fiscal quarters), and the Borrower shall have
delivered to the Administrative Agent and each Lender a certificate of a
Financial Officer as to the foregoing matters (containing calculations of the
Leverage Ratio in reasonable detail),
(i) with respect to each Acquisition other than a Pending
Acquisition, immediately after giving effect thereto, the Available Other
Investment Amount shall not be less than $1.00,
(j) with respect to each Acquisition other than a Pending
Acquisition made in any fiscal year, the sum (the "Acquisition Consideration")
of (i) the cash consideration paid or agreed to be paid in connection with such
Acquisition plus (ii) the fair market value of all non-cash consideration paid
or agreed to be paid in connection with such Acquisition plus (iii) an amount
equal to the principal or stated amount of all liabilities assumed or incurred
by such Person or any Loan Party in connection therewith plus (iv) the
Acquisition Consideration paid in respect of each other such Acquisition made
during such fiscal year shall not exceed $25,000,000,
(k) with respect to each Acquisition other than a Pending
Acquisition, pursuant to which the Acquisition Consideration exceeds $5,000,000,
the Borrower shall have delivered to the Administrative Agent and each Lender
written notice thereof not less than five Business Days prior to the
consummation of such Acquisition,
(l) with respect to each Pending Acquisition:
(i) all outstanding Indebtedness of the applicable
Pending Acquisition Target and its Subsidiaries shall have been (or
simultaneously is being) paid in full and all agreements with respect
thereto have been cancelled or terminated, and all Liens, if any,
securing the same and all lockbox or similar arrangements with respect
thereto, if any, shall have been terminated (and attaching evidence
satisfactory to the Administrative Agent of such Lien terminations),
provided, however, that the Borrower shall not be required to cancel or
terminate unsecured letters of credit issued for the account of a
Pending Acquisition Target (the "EXISTING LETTERS OF CREDIT") provided
that (A) the Administrative Agent shall receive a certificate of a
Financial Officer setting forth with respect to each such letter of
credit (1) the names of the issuing bank, beneficiary and account
party, (2) the issuance and expiry dates and (3) the face and undrawn
amounts, (B) no such letter of credit shall be extended, and (C) the
availability of Revolving Loans shall be reduced by the Letter of
Credit Exposure with respect thereto,
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(ii) the Administrative Agent shall have received a
certificate of an officer of the Borrower, in all respects satisfactory
to the Agent and dated the date of the consummation of such Pending
Acquisition (A) attaching a true and complete copy of each of the
applicable Pending Acquisition Documents, which shall be in form and
substance satisfactory to the Administrative Agent and (B) certifying
that each thereof is in full force and effect,
(iii) there shall have occurred no Material Adverse change or
any material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the applicable
Pending Acquisition Target, in each case since December 31, 1997,
(iv) all approvals and consents of all Persons required to be
obtained in connection with the consummation of such Pending
Acquisition have been obtained, all required notices have been given
and all required waiting periods have expired,
(v) as a condition to the consummation of a Pending
Acquisition, the Borrower shall furnish or caused to be furnished to
each Credit Party the consolidated balance sheets and statements of
operations and cash flows of the applicable Pending Acquisition Target
for the most recently completed fiscal year, which shall have been
prepared in accordance with GAAP on a consistent basis throughout the
periods indicated and present fairly, in all material respects, the
financial position, results of operations and changes in financial
position of such Pending Acquisition Target as of the indicated dates
and for the indicated periods and shall be consistent with the books
and records of such Pending Acquisition Target (which books and records
shall be correct and complete),
(vi) the Administrative Agent shall have received such updated
schedules to this Agreement as the Borrower deems necessary, such
schedules to be satisfactory in form and substance to the
Administrative Agent and Required Lenders, and
(vii) the Administrative Agent shall have received a
certificate of an officer of the Borrower, dated the Effective Date, as
to the matters set forth in subsection (f)(i) through and including
(f)(iv) above,
(m) the Borrower shall have delivered to the Administrative
Agent and each Lender, a Compliance Certificate signed by a Financial Officer of
the Borrower, in all respects reasonably satisfactory to the Administrative
Agent, dated the date of the consummation of such Acquisition and (i) stating
that the Borrower is in compliance with all covenants on a pro-forma basis after
giving effect to such Acquisition, and (ii) attaching a copy of a pro-forma
consolidated balance sheet of the Borrower utilized for
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purposes of preparing such Compliance Certificate, which pro-forma consolidated
balance sheet presents the Borrower's good faith estimate of its pro-forma
consolidated financial condition at the date thereof, after giving effect to
such Acquisition,
(n) the Borrower shall have complied with the provisions of
Sections 7.9 and 7.10 (including the delivery of additional Security Documents,
legal opinions, certificates, etc.), and
(o) the Borrower shall have delivered to the Administrative
Agent such other information, documents and other items as the Administrative
Agent shall have reasonably requested.
8.6. DISPOSITIONS
The Borrower shall not, and shall not permit any Subsidiary
to, sell, assign, lease, transfer or otherwise dispose of any property or
assets, except:
(a) (i) sales of inventory and Unconsolidated Investments in
the ordinary course of business, (ii) sales, assignments, transfers or other
dispositions of any property or assets that, in the reasonable opinion of the
Borrower or such Subsidiary, as the case may be, are obsolete or no longer
useful in the conduct of its business, (iii) investments in Cash Equivalents,
and Investment Grade Securities and (iv) the Classic Mortgages;
(b) sales of Margin Stock, if and to the extent that the value
of the Margin Stock of the Borrower and the Subsidiaries exceeds 25% of the
value of the assets (as determined by any reasonable method) of the Borrower and
the Subsidiaries;
(c) sales, assignments, leases, transfers or other
dispositions of any property or assets by the Borrower to any Subsidiary and by
any Subsidiary to the Borrower or any other such Subsidiary, provided that
immediately after giving effect to any such transaction between a Loan Party and
a Subsidiary which is not a Subsidiary Guarantor, the Available Intercompany
Investment Amount shall not be less than $1.00;
(d) sales, assignments, leases, transfers or other
dispositions not otherwise described in this Section 8.6 (each a "DISPOSITION"),
provided that (i) immediately before and after giving effect to each such
Disposition, no Default shall or would exist, (ii) 75% of the total
consideration received or to be received therefor by the Borrower or the
Subsidiaries shall be payable in cash or Cash Equivalents on or before the
closing thereof and shall not be less than the fair market value thereof as
reasonably determined by the Managing Person of the Borrower or such Subsidiary,
(iii) the Administrative Agent and the Lenders shall have received (A) written
notice thereof not less than ten Business Days prior to each such Disposition,
and (B) a certificate in respect thereof signed by a duly authorized officer of
the Borrower identifying the property or other asset
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subject to such Disposition, and certifying that the consideration received or
to be received by the Borrower or such Subsidiary for such property has been
determined by the Managing Person thereof to be not less than the fair market
value of such property and (z) the total consideration to be paid in respect of
such Disposition, together with estimates of items to be deducted therefrom in
arriving at the Net Cash Proceeds thereof.
8.7. RESTRICTED PAYMENTS
The Borrower shall not, and shall not permit any Subsidiaries
to declare, pay or make any dividend or other distribution, direct or indirect,
on account of any Capital Stock issued by such Person now or hereafter
outstanding (other than a dividend payable solely in shares or other units of
such Capital Stock to the holders of such shares or other units) or any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition, direct or indirect, of any shares of any class of its Capital Stock
now or hereafter outstanding (collectively, "RESTRICTED PAYMENTS"), except:
(a) Restricted Payments made by the Borrower to any Subsidiary
or made by any Subsidiary to the Borrower or to any other Subsidiary, provided
that (i) immediately before and after giving effect thereto, no Default shall or
would exist, and (ii) in the case of a Restricted Payment made by a Loan Party
to a Subsidiary which is not a Subsidiary Guarantor, immediately after giving
effect thereto, the Available Intercompany Investment Amount shall not be less
than $1.00; and
(b) the Allied Redemption Payment; and
(c) provided that no Default would exist immediately before
and after giving effect thereto, the Borrower may make a Restricted Payment
during the fiscal quarter in which it receives Net Cash Proceeds of an Equity
Issuance in excess of $20,000,000 in an amount equal to the lesser of (x) the
amount of such Net Cash Proceeds in excess of $20,000,000 and (y) $30,000,000.
8.8. HEDGING AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary
to, enter into any Hedging Agreements, other than Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
8.9. SALE AND LEASE-BACK TRANSACTIONS
The Borrower shall not, and shall not permit any Subsidiary
to, enter into an arrangement with any Person or group of Persons providing for
the renting or leasing by the Borrower or any Subsidiary of any property or
asset which has been or is to be sold or transferred by the Borrower or any
Subsidiary to any such Person.
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8.10. LINES OF BUSINESS
The Borrower shall not, and shall not permit any Subsidiary
to, engage in any business other than the Line of Business.
8.11. TRANSACTIONS WITH AFFILIATES
The Borrower shall not, and shall not permit any Subsidiary
to, become a party to any transaction with an Affiliate, or permit any
Subsidiary so to do, unless the Borrower's or such Subsidiary's Managing Person
shall have determined that the terms and conditions relating thereto are as
favorable to the Borrower or such Subsidiary as those which would be obtainable
at the time in a comparable arms-length transaction with a Person other than an
Affiliate, provided, however, that the payment of the ▇▇▇▇▇▇ Fees and the costs
and expenses of ▇▇▇▇▇▇ with respect to the Transactions shall not be deemed to
be a violation of this Section 8.11.
8.12. USE OF PROCEEDS
The Borrower shall not use the proceeds of (i) Revolving Loans
for any purpose other than for the Borrower's general corporate purposes not
inconsistent with the provisions hereof, including the payment of Fees
hereunder, and for the issuance of Letters of Credit and (ii) Term Loans (A) to
finance the Acquisitions and (B) to pay up to $4,000,000 (less the ▇▇▇▇▇▇ Fees)
for transaction fees and expenses.
8.13. RESTRICTIVE AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary
to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon the
ability of any such Subsidiary to pay dividends or other distributions with
respect to any shares of its Capital Stock or to make or repay loans or advances
to the Borrower or any other Subsidiary of the Borrower or to Guarantee
Indebtedness of the Borrower or any other Subsidiary of the Borrower, provided
that the foregoing shall not apply to restrictions and conditions imposed by
applicable law or by this Agreement.
8.14. FINANCIAL COVENANTS
(a) LEVERAGE RATIO. The Borrower shall not permit the Leverage
Ratio to at any time exceed the ratio set forth below with respect to the
applicable period set forth below:
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Period Ratio
------ -----
Effective Date through
December 31, 1998 3.50:1.00
January 1, 1999 through
December 31, 1999 3.25:1.00
January 1, 2000 through
December 31, 2000 3.00:1.00
January 1, 2001 through
December 31, 2001 2.75:1.00
January 1, 2002 and
thereafter 2.50:1.00
(b) INTEREST COVERAGE RATIO. The Borrower shall not permit the
Interest Coverage Ratio as of the last day of any fiscal quarter to be less than
the ratio set forth below with respect to the applicable period set forth below:
Period Ratio
------ -----
Effective Date through
December 31, 1998 3.00:1.00
January 1, 1999 through
December 31, 1999 3.50:1.00
January 1, 2000 through
December 31, 2000 4.00:1.00
January 1, 2001 and
thereafter 5.00:1.00
(c) FIXED CHARGE COVERAGE RATIO. The Borrower shall not permit
the Fixed Charge Coverage Ratio as of the last day of any fiscal quarter to be
less than the ratio set forth below with respect to the applicable period set
forth below:
Period Ratio
------ -----
Effective Date through
December 31, 1998 1.25:1.00
January 1, 1999 through
December 31, 1999 1.30:1.00
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January 1, 2000 through
December 31, 2000 1.40:1.00
January 1, 2001 and
thereafter 1.50:1.00
(d) MINIMUM NET WORTH. The Borrower shall not permit Net Worth
to be less than:
(i) as of each of December 31, 1998, March 31, 1999,
June 30, 1999 and September 30, 1999, an amount equal to
$11,500,000,
(ii) as of each of December 31, 1999, March 31, 2000,
June 30, 2000 and September 30, 2000, an amount equal to
$11,500,000 plus the sum for the fiscal year ended December
31, 1999, of 75% of the net profit (but not net loss) of the
Borrower and the Subsidiaries on a consolidated basis for such
fiscal year,
(iii) as of each of December 31, 2000, March 31,
2001, June 30, 2001 and September 30, 2001, an amount equal to
the amount calculated under clause (ii) above plus the sum for
the fiscal year ended December 31, 2000, of 75% of the net
profit (but not net loss) of the Borrower and the Subsidiaries
on a consolidated basis for such fiscal year,
(iv) as of each of December 31, 2001, March 31, 2002,
June 30, 2002 and September 30, 2002, an amount equal to the
amount calculated under clause (iii) above plus the sum for
the fiscal year ended December 31, 2001, of 75% of the net
profit (but not net loss) of the Borrower and the Subsidiaries
on a consolidated basis for such fiscal year,
(v) as of each of December 31, 2002, March 31, 2003,
June 30, 2003 and September 30, 2003, an amount equal to the
amount calculated under clause (iv) above plus the sum for the
fiscal year ended December 31, 2003, of 75% of the net profit
(but not net loss) of the Borrower and the Subsidiaries on a
consolidated basis for such fiscal year,
(vi) as of each of December 31, 2003, March 31, 2004,
June 30, 2004 and September 30, 2004, an amount equal to the
amount calculated under clause (v) above.
(e) CAPITAL EXPENDITURES. The Borrower shall not make any
Capital Expenditures (or incur any obligation to make any Capital Expenditure)
or permit any Subsidiary to do so, in any fiscal year in an aggregate amount in
excess of the amounts set
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84
forth below for such fiscal year (to be calculated on a noncumulative basis so
that amounts not expended in a fiscal year may not be carried over and expended
in any subsequent fiscal year):
Fiscal Year Ending Amount
------------------ ------
1998 $4,300,000
1999 $4,500,000
2000 $4,700,000
2001 $4,900,000
2002 $5,100,000
2003 and thereafter $5,300,000.
ARTICLE 9. DEFAULTS
9.1. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT"
hereunder:
(a) the failure of the Borrower to make (i) any payment of
principal on any Loan, or in respect of any Reimbursement Obligation,
when due and payable, or (ii) any deposit into the Cash Collateral
Account when required hereby; or
(b) the failure of the Borrower to make any payment of
interest, Fees, expenses or other amounts payable under any Loan
Document or otherwise to the Administrative Agent with respect to the
loan facilities established hereunder within three Business Days of the
date when due and payable; or
(c) the failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.9, 7.10, 7.11, 7.12 or
7.14 or Article 8; or
(d) the failure of any Loan Party to observe or perform any
other term, covenant, or agreement contained in any Loan Document to
which it is a party and such failure shall have continued unremedied
for a period of 30 days after such Loan Party shall have obtained
knowledge thereof; or
(e) any representation or warranty made by any Loan Party (or
by an officer thereof on its behalf) in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel) or
other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading
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85
(whether because of misstatement or omission) in any material respect
when made; or
(f) the failure of any Loan Party to make any payment (whether
of principal or interest and regardless of amount) in respect of
Material Liabilities when due or within any grace period for the
payment thereof; or
(g) any event or condition occurs that results in any Material
Liability becoming or being declared to be due and payable prior to the
scheduled maturity thereof, or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders
of any Material Liability or any trustee or agent on its or their
behalf to cause any Material Liability to be due and payable, or to
require the prepayment, repurchase, redemption or defeasance thereof,
in each case prior to the scheduled maturity thereof (in each case
after giving effect to any applicable grace period); or
(h) any Loan Party shall (i) suspend or discontinue its
business (except to the extent permitted by Section 7.3), (ii) make an
assignment for the benefit of creditors, (iii) generally not be paying
its debts as such debts become due, (iv) admit in writing its inability
to pay its debts as they become due, (v) file a voluntary petition in
bankruptcy, (vi) become Insolvent, (vii) file any petition or answer
seeking for itself any reorganization, arrangement, composition, read
justment of debt, liquidation or dissolution or similar relief under
any present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any receiver, custodian or
any trustee for any substantial part of its property, (ix) be the
subject of any such proceeding filed against it which remains
undismissed for a period of 60 days, (x) file any answer admitting or
not contesting the material allegations of any such petition filed
against it or any order, judgment or decree approving such petition in
any such proceeding, (xi) seek, approve, consent to, or acquiesce in
any such proceeding, or in the appointment of any trustee, receiver,
sequestrator, custodian, liquidator, or fiscal agent for it, or any
substantial part of its property, or an order is entered appointing any
such trustee, receiver, custodian, liquidator or fiscal agent and such
order remains in effect for 60 days, or (xii) take any formal action
for the purpose of effecting any of the foregoing or looking to the
liquidation or dissolution of the Borrower, such Subsidiary or such
other Loan Party; or
(i) an (i) order or decree is entered by a court having
jurisdiction (A) adjudging any Loan Party bankrupt or insolvent, (B)
approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of
any Loan Party under the bankruptcy or insolvency laws of any
jurisdiction, (C) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Loan Party
or of any substantial part of the property of any thereof, or (D)
ordering the winding up or
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86
liquidation of the affairs of any Loan Party, and any such decree or
order continues unstayed and in effect for a period of 60 days or (ii)
order for relief is entered under the bankruptcy or insolvency laws of
any jurisdiction or any other; or
(j) judgments or decrees against any Loan Party aggregating in
excess of $100,000 until the consummation of any two of the Pending
Acquisitions and $250,000 thereafter (unless adequately insured by a
solvent unaffiliated insurance company which has acknowledged
coverage), shall remain unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of 60 consecutive days; or
(k) any of this Agreement, any Note, or any Security Document
shall cease, for any reason, to be in full force and effect, or any
Loan Party shall so assert in writing or shall disavow any of its
obligations under any of this Agreement, any Note, or any Security
Document; or
(l) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on, and security interest in, any
Collateral, with the priority required by the applicable Security
Document, except as a result of a Disposition thereof to the extent
permitted under the Loan Documents; or
(m) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
(i) in any year, $100,000 until the consummation of any two of the
Pending Acquisitions and $250,000 thereafter, or (ii) for all periods,
$100,000 until the consummation of any two of the Pending Acquisitions
and $250,000 thereafter; or
(n) the occurrence of a Change of Control; or
(o) any court of competent jurisdiction shall determine that
the Borrower or any Subsidiary thereof was rendered Insolvent as a
result of or in connection with any of the Initial Transactions, the
Pending Acquisitions or any other transaction related thereto or
occurring substantially contemporaneous therewith.
9.2. CONTRACT REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
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87
(i) in the case of an Event of Default specified in Section
9.1(h) or 9.1(i), without declaration or notice to the Borrower, all of
the Commitments shall immediately and automatically terminate, and the
Loans, all accrued and unpaid interest thereon and all other amounts
owing under the Loan Documents shall immediately become due and
payable, and
(ii) in all other cases, upon the direction of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower,
declare all of the Commitments to be terminated forthwith, whereupon
such Commitments shall immediately terminate, and/or declare the Loans,
all accrued and unpaid interest thereon and all other amounts owing
under the Loan Documents to be due and payable forthwith, whereupon the
same shall immediately become due and payable.
In the event that the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section, the Administrative Agent (i)
upon the direction of the Required Lenders, shall proceed to enforce the rights
of the holders of the Notes and the Reimbursement Obligations by suit in equity,
action at law and/or other appropriate proceedings, whether for payment or the
specific performance of any covenant or agreement contained in the Loan
Documents and (ii) may exercise any and all rights and remedies provided to the
Administrative Agent by the Loan Documents. To the extent permitted by law,
except as otherwise expressly provided in the Loan Documents, the Borrower
expressly waives presentment, demand, protest and all other notices of any kind
in connection with the Loan Documents are hereby expressly waived. To the extent
permitted by law, the Borrower hereby further expressly waives and covenants
not to assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay, prevent
or otherwise impede the performance or enforcement of any Loan Document.
(b) In the event that the Commitments shall have terminated or
the Loans, all accrued and unpaid interest thereon and all other amounts owing
under the Loan Documents shall have become due and payable pursuant to the
provisions of this Article 9, any funds received by any Credit Party from or on
behalf of the Borrower (except funds received by any Lender as a result of a
purchase from any other Lender pursuant to Section 2.6(c)) shall be remitted to,
and applied by, the Administrative Agent in the following manner and order:
(i) first, to the payment of interest on, and then
the principal portion of, any Loans which the Administrative
Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such
Lender or any Loan Party,
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88
(ii) second, to reimburse the Administrative Agent,
the Issuer and the Lenders, in that order, for any expenses
due from the Borrower pursuant to the provisions of Section
11.4,
(iii) third, to the payment of interest on, and then
the principal portion of, the Reimbursement Obligations,
(iv) fourth, to the payment of the Fees, pro rata
according to the Fees due and owing to the Credit Parties,
(v) fifth, to the payment of any other fees, expenses
or other amounts (other than the principal of and interest on
the Loans) payable by the Loan Parties to the Credit Parties
under the Loan Documents,
(vi) sixth, to the payment, pro rata according to the
Total Percentage of each Lender, of interest due on the Loans,
(vii) seventh, to the payment to the Lenders of, and
on a pro rata basis in accordance with, the unpaid principal
amount of the Loans and each amount then due and payable under
each Secured Hedging Agreement, and
(viii) eighth, any remaining funds shall be paid to
the Borrower or as a court of competent jurisdiction shall
direct.
ARTICLE 10. THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
10.2. INDIVIDUAL CAPACITY
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower, any Subsidiary, or
any Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
10.3. EXCULPATORY PROVISIONS
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The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (1) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (2) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 11.1), and (3) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any Subsidiary that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or another Credit Party and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreements, instrument or document,
or (v) the satisfaction of any condition set forth in Articles 5 or 6 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
10.4. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel to the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
10.5. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the
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Administrative Agent, provided that no such delegation shall serve as a release
of the Administrative Agent or waiver by the Borrower of any rights hereunder.
The Administrative Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of this Article 10 shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
10.6. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section 10.6, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, and having combined capital and surplus of at least $250,000,000 or an
Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.4 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or permitted to be
taken by any of them while it was acting as Administrative Agent.
10.7. NON-RELIANCE ON OTHER CREDIT PARTIES
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Credit Party
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
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ARTICLE 11. OTHER PROVISIONS
11.1. AMENDMENTS AND WAIVERS
(a) No failure to exercise and no delay in exercising, on the
part of any Credit Party, any right, remedy, power or privilege under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Credit Party may have had notice or knowledge
of such Default at the time.
(b) Notwithstanding anything to the contrary contained in any
Loan Document, with the written consent of the Required Lenders, the
Administrative Agent and the appropriate parties to the Loan Documents (other
than the other Credit Parties) may, from time to time, enter into written
amendments, supplements or modifications thereof and, with the consent of the
Required Lenders, the Administrative Agent on behalf of the other Credit
Parties, may execute and deliver to any such parties a written instrument
waiving or consenting to the departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default and its consequences; provided, however, that
no such amendment, supplement, modification, waiver or consent shall:
(i) increase the Revolving Commitment of any Lender,
without such Lender's consent;
(ii) unless agreed to by each Credit Party affected
thereby, (A) reduce the principal amount of any Extension of
Credit, or reduce the rate of interest thereon, or reduce any
fees or other obligations payable under the Loan Documents,
(B) extend any date (including the Maturity Date) fixed for
the payment of any principal of or interest on any Extension
of Credit, any fees, or any other obligation payable under the
Loan Documents or (C) extend the expiration date of any Letter
of Credit beyond the Maturity Date;
(iii) unless agreed to by all of the Lenders, (A)
increase the Aggregate Revolving Commitment or Aggregate Term
Loan Commitment, (B) change the definition of "Required
Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to waive, amend or modify
any rights
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92
hereunder or make any determination or grant any consent
hereunder, (C) change Section 2.6 in a manner that would alter
the pro rata sharing of payments required thereby, (D) consent
to any assignment or delegation by any Loan Party of any of
its rights or obligations under any Loan Document, (E) release
any Subsidiary Guarantor from its obligations under the
Subsidiary Guarantee (except as expressly provided therein or
as a result of the termination of the existence of such
Subsidiary Guarantor in a transaction permitted by Sections
8.3, 8.4 or 8.6), or (F) release any of the Collateral from
the Liens of the Security Documents, except as may be
expressly permitted thereunder or in connection with a
transaction permitted by Sections 8.3, 8.4 or 8.6), and
(iv) unless agreed to by the Administrative Agent or
the Issuer, amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuer,
respectively, under the Loan Documents.
Any such amendment, supplement, modification, waiver or
consent shall apply equally to each Credit Party and shall be binding upon each
Credit Party and each Loan Party to the applicable Loan Document, and upon all
future holders of the Notes and the Reimbursement Obligations. In the case of
any waiver, the Credit Parties and each Loan Party to the applicable Loan
Document shall be restored to their former position and rights hereunder and
under the outstanding Notes and other Loan Documents to the extent provided for
in such waiver, and any Default waived shall not extend to any subsequent or
other Default, or impair any right consequent thereon.
11.2. NOTICES
All notices, requests and demands to or upon the respective
parties to the Loan Documents to be effective shall be in writing and, unless
otherwise expressly provided therein, shall be deemed to have been duly given or
made when delivered by hand, one Business Day after having been sent by
overnight courier service, or when deposited in the mail, first-class postage
prepaid, or, in the case of notice by facsimile, when sent to the last address
(including telephone and facsimile numbers) for such party specified by such
party in a written notice delivered to the Administrative Agent and the Borrower
or, if no such written notice was so delivered, as follows:
(a) in the case of any Loan Party, to such Loan Party
c/o Allied Bus Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; with copies to: (i) ▇▇▇▇▇▇ Equity
Investors III, L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, Attention ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
and (ii) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., Columbia Square, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇; Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇. ▇▇▇▇▇ ▇▇▇▇, Esq.; Telephone: (202)
637-5600, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
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(b) in the case of the Administrative Agent, to The
Bank of New York, One Wall Street, Agency Function
Administration, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇ or 6366 or 6367; with a copy to: The
Bank of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Telephone: (212)
635-6724, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; and
(c) in the case of a Lender, at its address for
notices set forth on Schedule 11.2;
provided, however, that any notice, request or demand by the Borrower pursuant
to Sections 2.2, 2.3, 2.6 or 3.3 shall not be effective until received. Any
party to a Loan Document may rely on signatures of the parties thereto which are
transmitted by facsimile or other electronic means as fully as if originally
signed.
11.3. SURVIVAL
All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Extensions of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder.
11.4. EXPENSES; INDEMNITY
(a) The Borrower agrees, on demand therefor and whether any
Extension of Credit is made (i) to pay or reimburse the Administrative Agent and
its Related Parties for all reasonable out-of-pocket expenses incurred thereby,
including the reasonable fees, charges and disbursements of counsel, in
connection with the development, preparation, execution, syndication and
administration of, the Loan Documents (including any amendment, supplement or
other modification thereto (whether or not executed or effective)), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby and (ii) to pay or reimburse each Credit Party
for all of its costs and expenses, including reasonable fees and disbursements
of counsel, incurred in connection with (A) the protection or enforcement of its
rights under the Loan Documents, including any related collection proceedings
and any negotiation, restructuring or "work-out", and (B) the enforcement of
this Section.
(b) The Borrower shall, on demand therefor, indemnify each
Credit Party and each of their respective Related Parties (each, an "INDEMNIFIED
PERSON")
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against, and hold each Indemnified Person harmless from, any and all losses,
claims, damages, penalties, liabilities and related expenses, including the
fees, charges and disbursements of any counsel, incurred by or asserted against
any Indemnified Person in connection with or in any way arising out of any Loan
Document, any other Transaction Document or any Transaction, including as a
result of (i) any breach by the Borrower of the terms of any Loan Document, the
use of proceeds of any Extension of Credit or any action or failure to act on
the part of the Borrower, (ii) the consummation or proposed consummation of the
Transactions or any other transactions contemplated hereby, (iii) any Extension
of Credit or the use of the proceeds therefrom, (iv) any actual or alleged
presence or release of Hazardous Substance on or from any property owned or
operated by the Borrower or any Subsidiary, or any liability in respect of any
Environmental Law related in any way to the Borrower or any Subsidiary, (v) any
action or failure to act on the part of the Borrower or (vi) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnified Person is a party thereto (collectively,
the "INDEMNIFIED LIABILITIES") provided that such indemnity shall not, as to any
Indemnified Person, be available to the extent that such losses, claims,
damages, liabilities or related expenses resulted from the gross negligence or
wilful misconduct of such Indemnified Person.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or any of its Affiliates
under subsections (a) or (b) of this Section, each Lender severally agrees, on
demand therefor, to pay to the Administrative Agent such Lender's Total
Percentage of such amount (determined as of the time that the applicable
unreimbursed expense or Indemnified Liability is sought).
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnified Person
for any special, indirect, consequential or punitive damages (whether accrued
and whether known or suspected to exist in its favor) arising out of, in
connection with, or as a result of, the Loan Documents, the transactions
contemplated thereby or any Extension of Credit or the use of the proceeds
thereof.
11.5. SUCCESSORS AND ASSIGNS
(a) The Loan Documents shall be binding upon and inure to the
benefit of each of the parties thereto, and their respective successors and
assigns, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Credit
Party (and any such attempted assignment or transfer without such consent shall
be null and void).
(b) Each Lender may assign all or a portion of its rights and
obligations under the Loan Documents to (i) any Subsidiary or Affiliate of such
Lender, (ii) any other Lender, or (iii) with the consent of the Borrower, the
Administrative Agent, the Issuer
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(which consents shall not be unreasonably withheld or delayed and, in the case
of the Borrower's consent, shall not be required during the continuance of an
Event of Default), any other institution, provided that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of the assignor Lender's rights and obligations
under the Loan Documents;
(B) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Revolving Commitment, the amount of the
Revolving Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance
Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000; and
(C) the assignor and such assignee shall deliver to the
Administrative Agent three copies of an Assignment and Acceptance
Agreement executed by each of them, along with an assignment fee in the
sum of $3,500 for the account of the Administrative Agent and, if the
assignee is not then a Lender, such assignee shall designate its
address for notices and shall deliver to the Administrative Agent and,
if such assignee is a Foreign Credit Party, the documents required by
Section 3.7(c).
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the consents
required to such assignment, if required, the Administrative Agent shall record
the same and execute not less than two copies of such Assignment and Acceptance
Agreement in the appropriate place, deliver one such copy to the assignor and
one such copy to the assignee, and deliver one photocopy thereof, as executed,
to the Borrower. From and after the Assignment Effective Date specified in, and
as defined in, such Assignment and Acceptance Agreement, the assignee thereunder
shall, unless already a Lender, become a party hereto and shall, for all
purposes of the Loan Documents, be deemed a "Lender" and, to the extent provided
in such Assignment and Acceptance Agreement, the assignor Lender thereunder
shall be released from its obligations under this Agreement and the other Loan
Documents. The Borrower agrees that, if requested, in connection with each such
assignment, it shall at its own cost and expense execute and deliver to the
Administrative Agent or such assignee a Note, each payable to the order of such
assignee and dated the Effective Date. The Administrative Agent shall be
entitled to rely upon the representations and warranties made by the assignee
under each Assignment and Acceptance Agreement.
(c) Each Lender may grant participations in all or any part of
its rights and obligations under the Loan Documents to (i) any Subsidiary or
Affiliate of such Lender, (ii) any other Lender, or (iii) any other institution
reasonably acceptable to the
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Administration Agent, provided that (A) such Lender's obligations under this
Agreement and the other Loan Documents shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties to this Agreement and the
other Loan Documents for the performance of such obligations, (C) the Borrower
and the Credit Parties shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents, (D) the granting of such participation does not require that any
additional loss, cost or expense be borne by the Borrower at any time, and (E)
the voting rights of any holder of any participation shall be limited to
decisions that in accordance with Section 11.1 require the consent of all of the
Lenders.
(d) Subject to subsection (e) below, any Lender may at any
time assign all or any portion of its rights under any Loan Document to any
Federal Reserve Bank.
(e) Except to the extent of any assignment pursuant to
subsection (b) above, no Lender shall be relieved of any of its obligations
under the Loan Documents as a result of any assignment of or granting of
participations in, all or any part of its rights and obligations under the Loan
Documents.
11.6. COUNTERPARTS; INTEGRATION
Each Loan Document (other than the Notes) may be executed by
one or more of the parties thereto on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the party
to be charged. Delivery of an executed counterpart of a signature page of any
Loan Document by facsimile shall be effective as delivery of a manually executed
counterpart of such Loan Document. The Loan Documents and any separate letter
agreements between the Borrower and a Credit Party with respect to fees embody
the entire agreement and understanding among the Loan Parties and the Credit
Parties with respect to the subject matter thereof and supersede all prior
agreements and understandings among the Loan Parties and the Credit Parties with
respect to the subject matter thereof.
11.7. SEVERABILITY
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.8. GOVERNING LAW
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THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.9. JURISDICTION; SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably submits to
the nonexclusive jurisdiction of any New York State or Federal court sitting in
the City of New York over any suit, action or proceeding arising out of or
relating to the Loan Documents. Each party to a Loan Document hereby irrevocably
waives, to the fullest extent permitted or not prohibited by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum. Each Loan Party hereby agrees that a final judgment in any such suit,
action or proceeding brought in such a court, after all appropriate appeals,
shall be conclusive and binding upon it and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that a Credit Party may
otherwise have to bring any action or proceeding relating to Loan Documents
against the Borrower or its properties in the courts of any jurisdiction. Each
party to a Loan Document hereby irrevocably consents to service of process in
the manner provided for notices in Section 11.2. Nothing in this Agreement will
affect the right of any party to a Loan Document to serve process in any other
manner permitted by law.
11.10. WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
ALLIED BUS CORP.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
President and Chief Operating Officer
Revolving Commitment THE BANK OF NEW YORK,
Individually, as Issuer
$10,000,000 and as Administrative Agent
Term Loan Amount
$55,000,000 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Address for Notices
The Bank of New York
Agency Function Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 6366 or 6367
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with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Exhibits and Schedules to this Credit Agreement are not included with this
Registration Statement on Form S-1. Global will provide these exhibits and
schedules upon the request of the Securities and Exchange Commission.
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