EXHIBIT 10.31
$50,000,000
REVOLVING CREDIT AGREEMENT
between
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.,
as Borrower
and
The Lenders From Time
To Time a Party Hereto,
as Lenders
with
NationsBank, N.A.,
as Agent
Dated as of November 20, 1998
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72
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of November 20, 1998
(as amended, modified, or otherwise supplemented from time to time, the
"Agreement"), is between (i) ▇▇▇▇▇▇ BAILLY, INC., a Delaware corporation (the
"Borrower"), (ii) THE LENDERS FROM TIME TO TIME A PARTY TO THIS AGREEMENT (each,
a "Lender" and, collectively, the "Lenders") and (iii) NATIONSBANK, N.A., a
national banking association and in its separate capacity as agent for the
Lenders hereunder (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make
available to the Borrower a revolving line of credit for loans and letters of
credit up to an aggregate of $50,000,000 for general corporate purposes,
including financing the general working capital requirements and permitted
acquisitions of the Borrower (the "Permitted Uses"), in each case upon the terms
and subject to the conditions set forth herein;
WHEREAS, to induce the Lenders and the Agent to enter into
this Agreement, and as a condition to the obligations of the Lenders hereunder
becoming effective on the Effective Date, (i) the Borrower has agreed to enter
into the Borrower Security Agreement with the Agent, pursuant to which the
Borrower shall grant to the Agent, for the ratable benefit of the Lenders, a
first priority lien on and security interest in the Borrower's assets, (ii) the
Borrower has agreed to cause certain subsidiaries of the Borrower to enter into
respective Subsidiary Security Agreements with the Agent, pursuant to which such
subsidiaries shall grant to the Agent, for the ratable benefit of the Lenders, a
first priority lien on and security interest in such subsidiaries' assets, and
(iii) the Borrower has agreed to cause certain domestic subsidiaries of the
Borrower to enter into the Subsidiary Guarantee with the Agent, pursuant to
which such subsidiaries shall guarantee to the Agent, for the ratable benefit of
the Lenders, the obligations of the Borrower hereunder;
WHEREAS, as a further inducement to cause the Lenders and the
Agent to enter into this Agreement, the Borrower has agreed, subject to the
terms and conditions contained herein, to from time to time pledge or cause to
be pledged to the Agent, for the ratable benefit of the Lenders, 65% of the
outstanding shares of capital stock of certain Foreign Subsidiaries of the
Borrower;
WHEREAS, the Lenders are willing to make the loans and issue
the letters of credit to the Borrower, and the Agent is willing to act as
"Agent" in connection therewith, upon the terms and subject to the conditions
and provisions set forth herein; and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the Borrower, the Lenders and
the Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms shall have the
meanings indicated (such meanings to be, when appropriate, equally applicable to
both the singular and plural forms of the terms defined):
"ABR" means, for any day, the greater of (x) the Bank Prime
Rate as in effect on such day and (y) the Federal Funds Rate as in
effect on such day plus one-half of 1%.
"ABR Loan" shall mean any Revolving Loan bearing interest
based on the ABR.
"Accumulated Funding Deficiency" has the meaning ascribed to
that term in ERISA Section 302.
"Acquisition Consideration" shall mean the aggregate
consideration paid for any Acquisition Party, including without
limitation all cash, cash equivalents, the value of all capital stock,
the aggregate amount of all promissory notes (or other instruments of
indebtedness) issued, the amount of Acquisition Party debt assumed, or
otherwise, and whether such consideration shall be paid at closing or
be deferred or subject to earnouts or any other contingency.
"Acquisition Party" has the meaning specified in Section 6.2(e) of this
Agreement.
"Administrative Fee" shall have the meaning specified in Section 3.7(b) hereof.
"Administrative Fee Letter" shall have the meaning specified
in Section 3.7(b) hereof.
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
first Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling", "controlled by" or
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to vote 10% or more of
the securities having voting power for the election of directors of
such Person or otherwise to direct or cause the direction of the
management and policies of that Person, whether through the ownership
of voting securities or by contract or otherwise.
"Agent" has the meaning specified in the preamble of this
Agreement and shall include any successor Agent appointed pursuant to
Section 8.7 hereof.
"Agent Lending Office" or "Lending Office of the Agent" means
the Agent's offices at NationsBank, N.A., care of ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇,
VA-200-05-02, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other office in the United States of America of Agent as it may from
time to time designate to the Borrower or the Lenders by written
notice.
"Agreement" shall have the meaning specified in the preamble hereof.
"Applicable L/C Margin" means, for any period, in the event
the Funded Debt to EBITDA ratio calculated pursuant to Section 6.1(e)
hereof is (a) less than .50 to 1.00, then 0.80%, (b) greater than or
equal to 0.50 to 1.00 but less than 1.50 to 1.00, then 1.00%, (c)
greater than or equal to 1.50 to 1.00 but less than 2.50 to 1.00, then
1.25%, and (d) greater than or equal to 2.50 to 1.00, then 1.75%. The
Applicable L/C Margin for any Fiscal Quarter shall be determined based
on the financial statements delivered by the Borrower during the
immediately preceding Fiscal Quarter; provided, however, that if such
financial statements are not delivered when due, then the highest
Applicable L/C Margin shall apply.
"Applicable LIBOR Rate" means, for any period, in the event
the Funded Debt to EBITDA ratio calculated pursuant to Section 6.1(e)
hereof is (a) less than 0.50 to 1.00, LIBOR plus .80%, (b) greater than
or equal to 0.50 to 1.00 but less than 1.50 to 1.00, LIBOR plus 1.00%,
(c) greater than or equal to 1.50 to 1.00 but less than 2.50 to 1.00,
LIBOR plus 1.25%, and (d) greater than or equal to 2.50 to 1.00, LIBOR
plus 1.75%. The Applicable LIBOR Rate for any Fiscal Quarter shall be
determined based on the financial statements delivered by the Borrower
during the immediately preceding Fiscal Quarter; provided, however,
that if such financial statements are not delivered when due, then the
highest Applicable LIBOR Rate shall apply.
"Applicable Swing Line Rate" means, for any period, in the
event the Funded Debt to EBITDA ratio calculated pursuant to Section
6.1(e) hereof is (a) less than 0.50 to 1.00, the Base Swing Line Rate
plus 1.10%, (b) greater than or equal to 0.50 to 1.00 but less than
1.50 to 1.00, the Base Swing Line Rate plus 1.30%, (c) greater than or
equal to 1.50 to 1.00 but less than 2.50 to 1.00, the Base Swing Line
Rate plus 1.55%, and (d) greater than or equal to 2.50 to 1.00, the
Base Swing Line Rate LIBOR plus 2.05%. The Applicable Swing Line Rate
for any Fiscal Quarter shall be determined based on the financial
statements delivered by the Borrower during the immediately preceding
Fiscal Quarter; provided, however, that if such financial statements
are not delivered when due, then the highest Applicable Swing Line Rate
shall apply.
"Authorized Officer" means any of the Chief Executive Officer,
Chief Financial Officer or Treasurer of any Person which is a
corporation, partnership, or other business organization.
"Autoborrow Services Agreement" shall have the meaning
specified in Section 2.4(c) hereof.
"Bank Prime Rate" means, for any period, a fluctuating
interest rate per annum equal to the rate of interest publicly
announced by the Agent as its prime rate in effect from time to time
(which rate may not be the lowest rate of interest charged by the Agent
to commercial borrowers).
"BankBoston Credit Facility" means the credit facility made
available to Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc., a subsidiary of the
Borrower, under that certain First Amended and Restated Revolving
Credit Agreement, dated as of May 29, 1998, between BankBoston, N.A.
and Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc., as the same has been amended,
modified or supplemented from time to time.
"Bankruptcy Code" shall mean Title 11 of the United States
Code or any similar or successor federal law for the relief of debtors,
as the same may be amended from time to time.
"Base Swing Line Rate" shall have the meaning specified in
Section 2.4(c) hereof.
"Benefit Plan" means any employee benefit plan (including a
Multiemployer Plan), the funding requirements of which (under ERISA
Section 302 or Section 412 of the Code) are, or at any time within six
years immediately preceding the time in question were, in whole or in
part, the responsibility of the Borrower or an ERISA Affiliate.
"Borrower" has the meaning specified in the preamble of this Agreement.
"Borrower Account" means the bank account of the Borrower
maintained with the Agent for general purposes and assigned the account
number designated by the Agent in writing to the Borrower.
"Borrower Security Agreement" means the Security Agreement,
substantially in the form of Exhibit A hereto, executed and delivered
by the Borrower in favor of the Agent on or prior to the Effective Date
pursuant to Section 4.1(i)(B) hereof, as the same may be amended,
modified or supplemented from time to time.
"Borrowing Notice" has the meaning specified in Section 2.2(a) of this
Agreement.
"Breakage Period" has the meaning specified in Section 3.9 of this Agreement.
"Business Day" means any day on which commercial banks are
open for business (and not required or authorized by law to close) in
Fairfax County, Virginia, and Charlotte, North Carolina.
"Capital Expenditures" shall mean all expenditures classified
as capital expenditures in accordance with GAAP.
"Capital Lease" of any Person shall mean any lease of any
property (whether real, personal or mixed) by such Person (as lessee or
guarantor or other surety) which would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on a
balance sheet of such Person.
"Cash Flow" shall mean, with respect to any Person for any
period of determination, such Person's EBITDA plus rental and lease
expense less Capital Expenditures, as determined in accordance with
GAAP.
"Cash Flow Multiple" shall mean, as of any date of
determination, an amount equal to the product of (x) 300% multiplied by
(y) the EBITDA of the Borrower and its Consolidated Subsidiaries as
determined on a rolling four quarter basis and as adjusted to give
effect to the acquisition of any Acquisition Party as contemplated by,
and in accordance with the manner set forth in, the proviso to Section
6.2(e) hereof.
"Change in Control" means one or more of the following events:
(a) if any Person (including a person as defined in Section
3(a)(9), Section 13(d) or Section 14(d) of the Exchange Act) is or
becomes the owner or beneficial owner, directly or indirectly, of
securities of the Borrower representing thirty-three and one-third
percent (33-1/3%) or more of the combined voting power of the
Borrower's then outstanding securities (the term "beneficial owner" as
used herein shall include but not be limited to any person with the
attributes or interests described in Rule 13d-3 (as now in effect or as
amended) promulgated under the Exchange Act); or
(b) (i) the shareholders of the Borrower approve one or more
mergers, consolidations or combinations of the Borrower with any other
corporations or entities which, if consummated prior to the Maturity
Date, would result in (A) the voting securities of the Borrower
outstanding on the date hereof (together with any voting securities
issued by the Borrower permitted under Section 6.2(c) herein)
representing less than 50% of the combined voting power of the voting
securities of the Borrower or such surviving entity immediately after
consummation of any such merger, consolidation or combination, or (B)
after giving effect to such merger, consolidation or combination, a
change in the person holding the Office of Chief Executive Officer of
the Borrower relative to the person holding such respective office
immediately prior to giving effect to such merger, consolidation or
combination, or (ii) the shareholders of the Borrower approve a plan of
liquidation of the Borrower or an agreement for the sale, disposition
or transfer by the Borrower of all or substantially all the assets of
the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor Federal statute.
"Commitment" shall mean, with respect to each Lender's
commitment to make Revolving Loans and to issue (or participate in the
issuance of) Standby Letters of Credit, the aggregate Dollar amount set
forth on Schedule I hereto opposite such Lender's name under the
heading "Commitment" or assigned to it in accordance with Section
9.8(c), as such amount may be reduced or otherwise adjusted from time
to time in accordance with the provisions of this Agreement.
"Contingent Obligations" means, with respect to any Person,
any obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent (a) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation or (ii)
to maintain the net worth or solvency or the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of such primary
obligation against loss in respect thereof. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount (based on the maximum reasonably
anticipated net liability in respect thereof as determined by the
Borrower in good faith) of the primary obligation or portion thereof in
respect of which such Contingent Obligation is made or, if not stated
or determinable, the maximum reasonably anticipated net liability in
respect thereof (assuming such person is required to perform
thereunder) as determined by the Borrower in good faith.
"Consolidated Cash Flow" shall mean, for any period of
determination, the Cash Flow of the Borrower and its Consolidated
Subsidiaries, taken as a whole.
"Consolidated Fixed Charges" shall mean, for any period of
determination, the sum of the Borrower's and its Consolidated
Subsidiaries' interest expense contractually due, lease and rental
expenses, dividends paid, declared or accumulated on any class of
capital stock and payments of principal due (during the period as to
which such computation relates) under any Indebtedness, as determined
in accordance with GAAP, but excluding all repayments of principal in
respect of the Indebtedness outstanding during the 12 month period
occurring prior to the Effective Date under each of the State Street
Bank Credit Facility and the BankBoston Credit Facility.
"Consolidated Subsidiary" means, with respect to any Person at
any time, any Subsidiary or other Person the accounts of which would be
consolidated with those of such first Person in its consolidated
financial statements as of such time.
"Credit Agreement Related Claim" means any claim (whether
civil, criminal or administrative and whether sounding in tort,
contract or otherwise) in any way arising out of, related to, or
connected with this Agreement or any other Credit Document or the
relationships established hereunder or thereunder.
"Credit Documents" means this Agreement, the Revolving Notes,
the Swing Line Note, the Borrower Security Agreement, each Subsidiary
Security Agreement, each Pledge Agreement executed and delivered by a
Pledgor pursuant to Section 6.1(w) hereof, the Subsidiary Guarantee and
the Administrative Fee Letter.
"Credit Party" shall mean the Borrower and each Subsidiary
thereof that is a party to any Credit Document.
"Default Rate" means the rate of interest applicable under
Section 3.3 of this Agreement from time to time.
"Dollars", "U.S.$" and the sign "$" mean such coin or currency
of the United States of America as at the time shall constitute legal
tender for the payment of public and private debts.
"Domestic Subsidiary" shall mean any Subsidiary that is
created under the laws of any State of the United States of America or
the District of Columbia.
"Drawing" has the meaning specified in Section 2.3(e) of this Agreement.
"EBITDA" shall mean, with respect to any Person for any period
of determination, all of such Person's and its Consolidated
Subsidiaries' earnings before interest, taxes, depreciation and
amortization, extraordinary gains, non-cash, non-recurring compensatory
charges incurred in connection with acquisitions, and non-cash,
non-recurring charges in respect of the write-down of assets of any
Person who has been acquired by the Borrower or any Subsidiary thereof
or the write-down of assets of the Borrower or any Subsidiary thereof
on account of and in connection with the acquisition by the Borrower or
any Subsidiary thereof (as permitted hereunder) of any Acquisition
Party, as determined in accordance with GAAP; provided, however, that,
for the purposes of calculating EBITDA and solely with respect to any
Affiliate of such Person, (i) EBITDA shall include the income of such
Affiliate only to the extent such Person receives such income from such
Affiliate, and (ii) EBITDA shall exclude the losses of such Affiliate
except to the extent such Affiliate shall have received from such
Person funds in respect of such losses.
"Effective Date" has the meaning specified in Section 4.1 of this
Agreement.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including without limitation any stockholders'
or voting trust agreements) for the issuance, sale, registration or
voting of, or securities convertible into, any additional shares of
capital stock of any class, or partnership or other ownership interests
of any type, in such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any Person, including a Subsidiary or
other Affiliate, that is a member of any group of organizations within
the meaning of Code Sections 414(b), (c), (m) or (o) of which Borrower
is a member.
"Event of Default" has the meaning specified in Section 7.1 of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor Federal statute.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th 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, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York; provided that if no such rate is so
published for any day which is a Business Day, then the Federal Funds
Rate for such day shall be the average rate quoted to the Agent for
such day on such transactions received by the Agent from three (3)
Federal funds brokers of recognized standing selected by it; and,
provided further, that if for any reason the Agent shall have
determined (which determination shall be conclusive and binding absent
manifest error) that it is unable to ascertain the Federal Funds Rate
for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms hereof, then
the ABR shall be determined without regard to clause (y) of the
definition of ABR until the circumstances giving rise to such inability
no longer exist.
"Fee Payment Date" means (i) in the case of the Unused Portion
Fee and the L/C Fee, the first Business Day following the end of any
Fiscal Quarter (or part thereof), and(ii) in the case of the
Administrative Fee, on the dates specified in the Administrative Fee
Letter.
"Fiscal Quarter" means the quarter, during any Fiscal Year,
ending March 31, June 30, September 30 and December 31.
"Fiscal Year" has the meaning specified in Section 6.1(a) of this
Agreement.
"Fixed Charge Coverage Ratio" means the ratio of Consolidated
Cash Flow to Consolidated Fixed Charges as contemplated by Section
6.1(g) hereof.
"Foreign Subsidiary" shall mean any Subsidiary that is not
created or organized under the laws of any State of the United States
of America or the District of Columbia.
"Form 8-K" means Form 8-K of the Exchange Act.
"Form 10-K" means Form 10-K of the Exchange Act.
"Form 10-Q" means Form 10-Q of the Exchange Act.
"Funded Debt" means, as of any date of determination, the sum of all
Indebtedness.
"Funding Date" shall mean the date on which any loan shall be
made by a Lender to the Borrower hereunder.
"GAAP" has the meaning specified in Section 1.2 of this Agreement.
"Governmental Body" means (i) the United States of America or
any State thereof or any department, agency, commission, board, bureau
or instrumentality of the United States of America or any State
thereof, and (ii) any quasi-governmental body, agency or authority
(including any central bank) exercising regulatory authority over the
Lender pursuant to applicable law in respect of the transactions
contemplated by this Agreement.
"Guarantors" means those Subsidiaries of the Borrower who have
executed the Subsidiary Guarantee on or prior to the Effective Date, or
who may thereafter become a party to the Subsidiary Guarantee in
accordance with the provisions hereof.
"Hazardous Substances" shall have the meaning specified in Section 5.11
hereof.
"Indebtedness" of any Person means, as of any date of
determination and without duplication, the sum of (i) all indebtedness,
obligations and liabilities for money borrowed by such Person, whether
or not evidenced by a note, bond, indenture or other agreement
(including in the case of the Borrower, without limitation, the
Revolving Notes and the Swing Line Note), (ii) all obligations of such
Person upon which interest charges are customarily paid, (iii) the face
amount of all letters of credit issued for the account of such Person,
(iv) all obligations of such Person as lessee under any Capital Lease,
(v) all amounts owing by such Person under purchase money mortgages or
other purchase money liens or conditional sales or other title
retention agreements, (vi) all indebtedness or liabilities secured by
purchase money mortgages, liens, security interests, conditional sales
or other title retention agreements upon property owned by such Person
(whether or not such Person has assumed or become liable for the
payment of such indebtedness or liabilities), (vii) all obligations of
such Person for the deferred purchase price of property or services
(other than current trade payables or liabilities incurred in the
ordinary and usual course of business), including any deferred or
contingent payments (including earnout payments) in connection with any
acquisition and any amounts payable under deferred compensation
agreements executed in connection with any acquisition, (viii) the net
obligations and liabilities of such Person in respect of any interest
rate swap, collar, floor or ceiling agreement or other hedging
agreement, and (ix) all Contingent Obligations of such Person in
respect of the Indebtedness of others.
"Indemnified Person" has the meaning specified in Section 9.10(b) of this
Agreement.
"Initial Fiscal Quarter" has the meaning specified in Section 6.1(e).
"Interest Payment Date" means (x) in the case of Revolving
Loans bearing interest at the ABR, the last Business Day of each Fiscal
Quarter (or part thereof) in which interest accrues on such Revolving
Loans, (y) in the case of any LIBOR Loan, the expiration of the LIBOR
Period in respect of such LIBOR Loan, and (z) in the case of any Swing
Line Loan, on the last Business Day [of each month during which such
Swing Line Loan shall be outstanding].
"Issuing Lender" shall mean the Agent.
"L/C Fee" has the meaning specified in Section 2.3(b) of this Agreement.
"Lender" or "Lenders" have the meanings specified in the preamble of this
Agreement.
"Lender Availability" shall mean, as of any date of
determination and with respect to each Lender, the amount determined by
deducting (x) the amount of such Lender's Pro Rata Share of the Total
Outstanding Amount from (y) the amount of such Lender's Pro Rata Share
of the Maximum Available Amount.
"LIBOR" means, with respect to any LIBOR Period, (x) the per
annum interest rate (rounded upward to the nearest 1/100th of 1%)
determined on the basis of the offered rates for Dollar deposits for a
term comparable to such LIBOR Period and in an amount substantially
equal to the outstanding amount of the Revolving Loans in respect of
which such determination is made which appear on the Telerate Screen
Page 3750 as of 11:00 a.m. (London time) on the day that is two LIBOR
Business Days prior to the first day of such LIBOR Period, divided by
(y) a number equal to 1.00 minus the LIBOR Reserve Rate.
"LIBOR Business Day" means any day on which commercial banks
are open for international business (including dealings in Dollar
deposits) in London or such other Euro-dollar interbank market as may
be selected by the Lender in its sole discretion.
"LIBOR Conversion" has the meaning specified in Section 3.8(a) of this
Agreement.
"LIBOR Conversion Notice" has the meaning specified in Section 3.8(a) of
this Agreement.
"LIBOR Loans" means the Revolving Loans which bear interest at
the Applicable LIBOR Rate.
"LIBOR Period" means the one month, two month, three month or
six month interest period selected by the Borrower pursuant to any
LIBOR Conversion Notice or Borrowing Notice.
"LIBOR Reserve Rate" means, for any day with respect to a
LIBOR Loan, the maximum rate (expressed as a decimal) at which a Lender
would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System, as amended from time to
time (or any successor or similar regulations relating to such reserve
requirements), against "Eurocurrency liabilities" (as that term is used
in Regulation D), if such liabilities were outstanding. The LIBOR
Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in the LIBOR Reserve Rate.
"Lien" of any Person shall mean any mortgage, deed of trust,
lien, pledge, adverse interest in property, charge, security interest
or other encumbrance in or on, or any interest or title of any vendor,
lessor, Lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease
with respect to, any property or asset owned or held by such Person, or
the signing or filing of any security agreement with respect to any of
the foregoing authorizing any other party as the secured party
thereunder to file any financing statement.
"Mandatory Borrowing" shall have the meaning specified in Section 2.4(e)
hereof.
"Material Domestic Subsidiary" shall mean, as of any date of
determination, any Domestic Subsidiary of any Person if (x) the book
value of all assets (both real and personal) of such Domestic
Subsidiary equals or exceeds $250,000 or (y) such Domestic Subsidiary
has annual revenues of $250,000 or more.
"Maturity Date" means November 30, 2001.
"Maximum Available Amount" shall mean, as of any date of
determination, the lesser of (x) the Revolving Loan Commitment and (y)
the Cash Flow Multiple.
"Multiemployer Plan" means any "multiemployer plan" as defined
in ERISA Section 4001(a)(3) to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding three plan years made or accrued an
obligation to make contributions.
"Obligations" shall mean all now existing or hereafter arising
indebtedness, obligations, liabilities and covenants of the Borrower to
the Lenders or the Agent, their respective Affiliates or permitted
successors and assigns or any other Indemnified Person, in each case
arising under or in connection with or evidenced by this Agreement or
any other Credit Document, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due.
"Optional Prepayment" means the optional prepayment of Swing
Line Loans pursuant to Section 2.4(f) hereof or of Revolving Loans
pursuant to Section 3.6(b) hereof.
"Permitted Investment" means each of (i) direct obligations of
the United States of America, and agencies thereof; (ii) obligations
fully guaranteed by the United States of America; (iii) certificates of
deposit issued by, or bankers' acceptance of, or time deposits with,
any bank, trust company or national banking association incorporated or
doing business under the laws of the United States of America or one of
the states thereof having combined capital and surplus and retained
earnings of at least $500,000,000; (iv) commercial paper of companies
having a rating assigned to such commercial paper by Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such
organization shall rate such commercial paper at any time, by any
nationally recognized rating organization in the United States of
America) of A-1 or P-1, respectively; (v) money-market funds or
money-market mutual funds which (a) seek to maintain a constant net
asset value, (b) maintain fund assets under management having an
aggregate market value of at least $500,000,000 and (c) invest
primarily in Permitted Investments of the type described in clauses
(i), (ii), (iii) or (iv) hereof; or (vi) any investment in any debt
security or equity security so long as the amount of all such debt or
equity investments shall not exceed, in the aggregate at any time,
$1,000,000, provided that the aggregate amount of all voting securities
(or debt securities convertible into voting securities) of any one
Person held or purchased pursuant to this clause (vi) shall not
constitute more than 20% of the outstanding shares of voting securities
of such Person.
"Permitted Uses" shall have the meaning specified in the first
Whereas clause hereof.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Pledge Agreement" means a Pledge Agreement, substantially in
the form of Exhibit B executed and delivered pursuant to Section 6.1(w)
hereof, as the same may be amended, modified or supplemented from time
to time.
"Pledgor" shall mean each Person who shall have executed and
delivered a Pledge Agreement in favor of the Agent pursuant to Section
6.1(w) hereof.
"Potential Change in Control" means one or more of the following events:
(a) the Borrower enters into an agreement, the
consummation of which would result in the occurrence of a
Change In Control; or
(b) the Board of Directors of the Borrower adopts a
resolution, the effect of which would result in the occurrence
of a Change in Control.
"Potential Event of Default" means an event, condition or
circumstance which, with the giving of notice or the lapse of time, or
both, would constitute an Event of Default.
"Prohibited Transaction" shall have the meaning ascribed to such term in
ERISA.
"Pro Rata Share" shall mean, as of any date of determination
and with respect to any Lender, a fraction (expressed as a percentage),
the numerator of which shall be the amount of such Lender's Commitment
and the denominator of which shall be the aggregate amount of
Commitments of all Lenders, as such Commitments may be reduced or
otherwise adjusted from time to time in accordance with the provisions
of this Agreement; provided, however, that if all of the Commitments
are terminated or reduced to zero hereunder, the Pro Rata Share shall
mean, as of any date of determination and with respect to any Lender, a
fraction (expressed as a percentage), the numerator of which shall be
the sum of the aggregate amount of such Lender's Revolving Loans then
outstanding plus the aggregate amount of such Lender's participation in
any outstanding Standby Letter of Credit and the denominator of which
shall be the sum of the aggregate amount of all Revolving Loans then
outstanding plus all Standby Letters of Credit then outstanding.
"Regulatory Change" means any applicable law, interpretation,
directive, request or guideline (whether or not having the force of
law), or any change therein or in the administration or enforcement
thereof, that becomes effective or is implemented or first required or
expected to be complied with after the date hereof, whether the same is
(i) the result of an enactment by a government or any agency or
political subdivision thereof, a determination of a court or regulatory
authority, or otherwise or (ii) enacted, adopted, issued or proposed
before or after the date hereof, including any such that imposes,
increases or modifies any tax, reserve requirement, insurance charge,
special deposit requirement, assessment or capital adequacy
requirement, but excluding any such that imposes, increases or modifies
any income or franchise tax imposed upon any Lender by any jurisdiction
(or any political subdivision thereof) in which any Lender or any
office is located.
"Reportable Event" means any event or condition described in
ERISA Section 4043(b), other than an event or condition with respect to
which the 30-day notice requirement has been waived.
"Required Lenders" shall mean, except as otherwise provided in
Section 8.9(i) hereof, as of any date of determination, such Lenders
whose Pro Rata Shares of the Revolving Loan Commitment, in the
aggregate, are greater than fifty percent (50%); provided, however,
that for so long as only two financial institutions constitute Lenders
hereunder (it being understood that, solely for the purposes of
determining the number of financial institutions constituting Lenders
under this proviso, each financial institution, together with its
Affiliates, shall constitute a single Lender), Required Lenders shall
mean, except as otherwise provided in Section 8.9(i) hereof, as of any
date of determination, such Lenders whose Pro Rata Shares of the
Revolving Loan Commitment, in the aggregate, constitute one hundred
percent (100%).
"Revolving Loan(s)" shall have the meaning specified in Section 2.1(a)
hereof.
"Revolving Loan Commitment" shall mean the commitment of the
Lenders to make Revolving Loans and issue (or participate in the
issuance of) Standby Letters of Credit in an aggregate amount of up to
$50,000,000, as such amount may be reduced or otherwise adjusted from
time to time in accordance with the provisions of this Agreement.
"Revolving Note" means any promissory note issued to a Lender
by the Borrower pursuant to this Agreement, substantially in the form
(appropriately completed) of Exhibit C to this Agreement, as the same
may be amended, modified or supplemented from time to time, and any
other promissory note issued in exchange or substitution thereof, and
"Revolving Notes" means, collectively, all such promissory notes so
issued.
"SEC" means the Securities and Exchange Commission or any similar Federal
agency.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor Federal statute.
"Stamp Taxes" has the meaning specified in Section 9.5 of this Agreement.
"Standby Letter of Credit" has the meaning specified in Section 2.3(a) of
this Agreement.
"State Street Bank" means State Street Bank and Trust Company.
"State Street Credit Facility" shall mean the $15,000,000
credit facility made available to ▇▇▇▇▇▇ Bailly Consulting, Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Services, Inc., as co-borrowers, under that certain
Credit Agreement, dated as of September 30, 1997, between State Street
Bank, ▇▇▇▇▇▇ Bailly Consulting, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Services, Inc.,
as the same has been amended, modified or supplemented from time to
time.
"Subsidiary" shall mean any corporation, limited liability
company, partnership, trust or other entity a majority of the capital
stock (or equivalent ownership or controlling interest) of which at the
time outstanding, having ordinary voting power for the election of
directors (or equivalent controlling interest or person), is owned,
directly or indirectly, by any other corporation, limited liability
company, partnership, trust or other entity, and "Subsidiaries" means,
collectively, all such entities.
"Subsidiary Guarantee" means the Subsidiary Guarantee,
substantially in the form of Exhibit D hereto, executed and delivered
by the Guarantors in favor of the Agent on or before the Effective Date
pursuant to Section 4.1(i)(C) hereof (or by an Guarantor after the
Effective Date as required by Sections 6.2(e) and 6.2(g) hereof) as the
same may be amended, modified or supplemented from time to time.
"Subsidiary Security Agreement" shall mean each Security
Agreement, substantially in the form of Exhibit E hereto, executed and
delivered by a Subsidiary of the Borrower in favor of the Agent on or
prior to the Effective Date pursuant to Section 4.1(i)(E) hereof or
after the Effective Date as provided by Section 6.1(w) hereof, as the
same may be amended, modified or supplemented from time to time.
"Swing Line Lender" shall have the meaning specified in
Section 2.4(a) hereof.
"Swing Line Loan" shall have the meaning specified in Section
2.4(a) hereof.
"Swing Line Note" means the promissory note issued by the
Borrower to NationsBank, N.A. pursuant to this Agreement in respect of
the Swing Line Loans, substantially in the form (appropriately
completed) of Exhibit F to this Agreement, as the same may be amended,
modified or supplemented from time to time, and any other promissory
note issued in exchange or substitution therefor.
"Swing Line Subfacility" shall have the meaning specified in
Section 2.4(a) hereof.
"Termination Event" means, with respect to any Benefit Plan,
(i) any Reportable Event with respect to such Benefit Plan, (ii) the
termination of such Benefit Plan, or the filing of a notice of intent
to terminate such Benefit Plan, or the treatment of any amendment to
such Benefit Plan as a termination under ERISA Section 4041(c), (iii)
the institution of proceedings to terminate such Benefit Plan under
ERISA Section 4042 or (iv) the appointment of a trustee to administer
such Benefit Plan under ERISA Section 4042.
"Total Outstanding Amount" has the meaning specified in Section 2.1(a) of
this Agreement.
"Triggering Event" means the occurrence of any of the
following events: (a) with respect to any Foreign Subsidiary of the
Borrower and as determined from time to time, if such Foreign
Subsidiary has annual revenues of $10,000,000 or more, (b) for any
quarterly or annual period of determination, if total revenues or
profits from all Foreign Subsidiaries of the Borrower comprise more
than 20% of the total revenues or profits of the Borrower and its
Consolidated Subsidiaries, or (c) upon an Event of Default. All
determinations made with respect to the definition of Triggering Event
shall be calculated in Dollars based on the applicable exchange rate
quoted in The Wall Street Journal on any date of determination.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code in effect in the relevant jurisdiction.
"Unused Portion Fee" has the meaning specified in Section 3.7(a) of this
Agreement.
"Year 2000 Compliant" has the meaning specified in Section 5.13 of this
Agreement.
"Year 2000 Problem" has the meaning specified in Section 5.13 of this
Agreement.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistently applied in the United States ("GAAP").
Section 1.03. Time Period Computations. In the computation of a period
of time specified in this Agreement from a specified date to a subsequent date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding".
ARTICLE II.
GENERAL PROVISIONS OF REVOLVING CREDIT FACILITY
Section 2.01. The Revolving Loans.
Revolving Loan Borrowings. Subject to the terms and conditions of this
Agreement, each Lender severally and not jointly agrees to make revolving loans
(each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, at any time and from time to time on and after the Effective Date
until one Business Day prior to the Maturity Date in an amount which shall not
exceed such Lender's Pro Rata Share of the Revolving Loan Commitment; provided,
however, that (i) the sum of the aggregate outstanding amount of all Revolving
Loans plus the aggregate outstanding amount of all Swing Line Loans plus the
aggregate amount then available to be drawn under all outstanding Standby
Letters of Credit (such sum, the "Total Outstanding Amount") shall at no time
exceed the Maximum Available Amount, and (ii) the aggregate outstanding amount
of all Revolving Loans made by each individual Lender pursuant to this Section
2.1 plus the aggregate amount then available to be drawn under all outstanding
Standby Letters of Credit made by or deemed made by such Lender pursuant to
Section 2.3 hereof shall at no time exceed such Lender's Pro Rata Share of the
Maximum Available Amount. Within the limits and subject to the terms and
conditions set forth in this Agreement, the Borrower may borrow pursuant to this
Section 2.1 and Section 2.2 hereof, may prepay pursuant to Section 3.6(b)
hereof, and reborrow under this Section 2.1 hereof.
Section 2.02. The Revolving Notes; Maturity. The Revolving Loans made
by each Lender pursuant hereto shall be evidenced by a separate Revolving Note.
Each Revolving Note shall be issued on or before the Effective Date and shall
bear interest, for the period from the initial Funding Date hereunder until such
Revolving Note shall be paid in full, on the unpaid principal amount thereof at
the rate specified in Section 3.1 of this Agreement. Each Lender is hereby
authorized to record in the books and records of such Lender (without making any
notation in such Lender's Revolving Note or any schedule thereto), among other
things, the amount and Funding Date of each Revolving Loan made by such Lender,
the amount and date of each payment or prepayment of any Revolving Loan and the
amount and date of any LIBOR Conversion or of any LIBOR Loan converted to an ABR
Loan, as the case may be. No failure to so record nor any error in so recording
shall affect the obligations of the Borrower to repay the actual outstanding
principal amount of the Revolving Loans, with interest thereon, as provided in
this Agreement. The aggregate principal amount of the Revolving Loans shall be
payable on the Maturity Date, unless sooner accelerated pursuant to the terms of
this Agreement.
Section 2.03. Revolving Loan Borrowing Procedures.
(a) Notice of Revolving Borrowing. Whenever the Borrower desires to borrow
Revolving Loans under Section 2.1 hereof, the Borrower shall deliver to the
Agent irrevocable written notice (each such notice, a "Borrowing Notice") no
later than 12:00 noon (Eastern time) on the Funding Date of a Revolving Loan;
provided, however, that if any Revolving Loan requested pursuant to such
Borrowing Notice is to bear interest based on LIBOR, such Borrowing Notice shall
be delivered no later than 12:00 noon (Eastern time) on the date (which must be
a Business Day) that is three (3) LIBOR Business Days prior to the Funding Date
of such Revolving Loan. The Borrowing Notice shall specify (i) that the Borrower
wishes to effect one or more Revolving Loans, (ii) the aggregate principal
amount of each Revolving Loan thereby requested (which shall not be less than
$1,000,000 and shall be in multiples of $250,000 with respect to each such
Revolving Loan), (iii) the requested Funding Date of each such Revolving Loan,
which date shall be a Business Day (whether or not any Revolving Loans are to
bear interest based on the ABR or LIBOR), (iv) whether any Revolving Loan
requested pursuant to such Borrowing Notice shall bear interest based on LIBOR,
in which case such Borrowing Notice shall specify the applicable LIBOR Period
being selected by the Borrower (it being understood and agreed that no change in
LIBOR with respect to any then outstanding LIBOR Loan may be effected during the
LIBOR Period relating thereto) and (v) the Cash Flow Multiple then in effect.
Each Borrowing Notice shall be accompanied by the officer's certificate
contemplated by Section 4.2(vi) hereof. In lieu of delivering the
above-described Borrowing Notice, and only with the consent of the Agent in its
sole discretion at such time, the Borrower may give the Agent telephonic notice
of any such proposed borrowing by the time period, as applicable, required under
this Section 2.2(a); provided that, in the event the Agent so consents, such
notice shall be confirmed in writing by delivery to the Agent promptly (but in
no event later than 12:00 noon (Eastern time) on the Funding Date of the
requested Revolving Loans) of a Borrowing Notice (it being understood that any
such telephonic notice shall be irrevocable and shall be conclusive and binding
as against the Borrower). Notwithstanding anything contained herein to the
contrary, if on any Interest Payment Date or Fee Payment Date the credit balance
in the Borrower Account is insufficient to permit the debit contemplated by the
second sentence of Section 3.4(a) of this Agreement, the Agent, without any
notice or other authorization being required, shall (and is hereby irrevocably
instructed by the Borrower to) effect Revolving Loans (which shall initially
bear interest at the ABR) in an amount sufficient to permit such debit to be
implemented or, if the amount of such debit is greater than the aggregate of the
Lender Availability of all Lenders, in the amount of the unused portion of such
Lender Availability.
(b) Making of Revolving Loans. Promptly after receipt of a Borrowing Notice
under clause (a) of this Section 2.2 (or telephonic notice if the Agent so
consents thereto), the Agent shall notify each Lender by telecopy or telex or
other customary form of teletransmission of the requested borrowing. Each Lender
shall make the amount of its Revolving Loan available to the Agent in Dollars
and in immediately available funds, not later than 3:00 P.M. (Eastern time) on
the Funding Date applicable to Revolving Loan(s) specified in the Borrowing
Notice. After the Agent's receipt of the proceeds of such Revolving Loans from
the Lenders, the Agent shall (unless it shall have learned that any of the
conditions precedent set forth in Section 4.2 hereof have not been satisfied)
make the proceeds of such Revolving Loans available to the Borrower on such
Funding Date relating thereto and shall disburse such funds in Dollars to the
Borrower in immediately available funds by crediting the Borrower Account.
(c) Failure to Fund by Lender. Unless the Agent shall have been notified by any
Lender prior to 2:00 P.M. (Eastern time) on any Funding Date in respect of
Revolving Loans requested under a Borrowing Notice that such Lender does not
intend to make available to the Agent such Lender's Revolving Loan on such
Funding Date, the Agent may assume that such Lender has made such amount
available to the Agent on such Funding Date and the Agent in its sole discretion
may, but shall not be obligated to, make available to the Borrower a
corresponding amount on such Funding Date. If such corresponding amount is not
in fact made available to the Agent by such Lender on or prior to 3:00 P.M.
(Eastern time) on a Funding Date, such Lender agrees to pay and the Borrower
agrees to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is paid or repaid to the
Agent, at (i) in the case of such Lender, the Federal Funds Rate, and (ii) in
the case of the Borrower, the ABR, and no such payment by the Borrower shall
prejudice any rights which the Company or the Agent may have against such Lender
on account of such Lender's failure to so fund its Revolving Loan. If such
Lender shall pay to the Agent such corresponding amount, such amount so paid
shall constitute such Lender's Revolving Loan, and if both such Lender and the
Borrower shall have paid and repaid, respectively, such corresponding amount,
the Agent shall promptly pay over to the Borrower such corresponding amount in
same day funds, but the Borrower shall remain obligated for all interest
thereon. Nothing contained in this Section 2.2(c) shall be deemed to relieve any
Lender of its obligation hereunder to make its Revolving Loan on any Funding
Date.
(d) Maximum Number of LIBOR Loans Outstanding at Anytime. No more than six (6)
LIBOR Loans shall be permitted to be outstanding under this Agreement at any
time. In the event that the Borrower shall request (i) a Revolving Loan on any
Funding Date to bear interest based on LIBOR pursuant to this Section 2.2, (ii)
any LIBOR Conversion pursuant to a LIBOR Conversion Notice under Section 3.8(a)
hereof or (iii) to continue any LIBOR Loan pursuant to a successive LIBOR
Conversion Notice under Section 3.8(c) hereof, the Agent and the Lenders shall
have no obligation to make such Revolving Loan based on LIBOR or effect such
LIBOR Conversion or continue any LIBOR Loan if, after giving effect to any such
transaction, there shall be outstanding under this Agreement more than six (6)
LIBOR Loans, and the Agent and the Lenders shall be irrevocably authorized
without notice to the Borrower to make such Revolving Loan as an ABR Loan or
continue such ABR Loan as such or convert such expiring LIBOR Loan to an ABR
Loan.
Section 2.04. Standby Letters of Credit.
(a) Generally. Subject to and in accordance with the terms and conditions set
forth herein, the Borrower may request the Issuing Lender, from time to time
during the period commencing on the Effective Date and ending 10 Business Days
prior to the Maturity Date, to issue, and subject to the terms hereof the
Issuing Lender shall issue, for the account of the Borrower and on behalf of
itself or any Subsidiary thereof, one or more standby letters of credit (each, a
"Standby Letter of Credit") pursuant to the Issuing Lender's customary letter of
credit application. The aggregate outstanding amount at any time and from time
to time of all Standby Letters of Credit shall not exceed $5,000,000. The
Issuing Lender shall have no obligation to issue any Standby Letter of Credit
if, after giving effect to the issuance thereof, the Total Outstanding Amount
shall then exceed the Maximum Available Amount (it being understood that the
Issuing Lender shall, upon request of the Borrower, issue a Standby Letter of
Credit in an amount that would, after giving effect to the issuance thereof, not
cause the Maximum Available Amount to be exceeded).
(b) Standby Letter of Credit Fees; Maturity. The Borrower shall, among other
things, pay to the Issuing Lender for the benefit of the Lenders, pro rata, a
quarterly fee (the "L/C Fee"), payable in arrears on the Fee Payment Date. The
L/C Fee shall be computed by multiplying the Applicable L/C Margin then in
effect by the daily average of the aggregate available amount to be drawn under
all Standby Letters of Credit outstanding during the Fiscal Quarter immediately
preceding the Fee Payment Date (and shall be calculated on the basis of a 360
day year and the actual number of days elapsed). All Standby Letters of Credit
issued by the Issuing Lender as contemplated by this Section 2.3 shall expire no
later than the Maturity Date. Notwithstanding that the Issuing Lender shall have
no obligation to issue any Standby Letter of Credit the expiration date of which
shall extend beyond the Maturity Date, if the expiration date of any Standby
Letter of Credit shall in fact extend beyond the Maturity Date, then on the last
Business Day immediately preceding the Maturity Date, there shall be deemed to
have been made Revolving Loans in the aggregate amount then available to be
drawn under all Standby Letters of Credit the expiration date of which shall
occur after the Maturity Date, the proceeds of which the Issuing Lender shall
deposit in a collateral account at the Issuing Lender or an Affiliate thereof in
order to collateralize such outstanding Standby Letters of Credit, which
collateral account shall bear interest for the account of the Borrower based
upon investment of the funds as agreed between the Issuing Lender and the
Borrower.
(c) Standby Letter of Credit Request Procedure. Whenever the Borrower desires
that a Standby Letter of Credit be issued on its behalf or on behalf of any of
its Subsidiaries, the Borrower shall give the Issuing Lender (with copies to be
sent by the Issuing Lender to the Agent and each other Lender) at least five (5)
Business Days' prior written notice therefor. The execution and delivery of each
request for a Standby Letter of Credit shall be deemed to be a representation
and warranty by the Borrower that such Standby Letter of Credit may be issued in
accordance with, and will not violate the requirements of, this Section 2.3.
Unless the Issuing Lender has received notice from any Lender before it issues
the respective Standby Letter of Credit that one or more of the conditions
specified in Section 4.2 are not then satisfied, or that the issuance of such
Standby Letter of Credit would violate this Section 2.3, then the Issuing Lender
may issue the requested Standby Letter of Credit for the account of the Borrower
in accordance with the terms of this Agreement and, with respect to any matters
not specifically covered by this Agreement, in accordance with the Issuing
Lender's usual and customary practices as in effect from time to time.
(d) Letter of Credit Participations.
Immediately upon the issuance by the Issuing Lender of any Standby Letter of
Credit, the Issuing Lender shall be deemed to have sold and transferred to each
Lender (other than the Issuing Lender), and each such Lender shall be deemed
irrevocably and unconditionally to have purchased and received from the Issuing
Lender, without recourse or warranty, an undivided interest and participation,
in proportion to such Lender's Pro Rata Share, in such Standby Letter of Credit,
each drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any collateral therefor. Upon any change in
a Lender's Pro Rata Share of the Revolving Loan Commitment, it is hereby agreed
that with respect to all outstanding Standby Letters of Credit, there shall be
an automatic adjustment to the participations pursuant to this Section 2.3(d) to
reflect the new Pro Rata Share of the Revolving Loan Commitment of the assigning
and assignee Lenders.
In determining whether to pay under any Standby Letter of Credit, the Issuing
Lender shall have no obligation relative to the Lenders other than to confirm
that any documents required to be delivered under such Standby Letter of Credit
appear to have been delivered and that they appear to comply on their face with
the requirements of such Standby Letter of Credit. Any action taken or omitted
to be taken by the Issuing Lender under or in connection with any Standby Letter
of Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Issuing Lender any resulting liability to
any Lender.
Upon the request of any Lender, the Issuing Lender shall furnish to such Lender
copies of any Standby Letter of Credit to which the Issuing Lender is party and
such other documentation relating to such Standby Letter of Credit as may
reasonably be requested by such Lender.
As between the Borrower on the one hand and the Issuing Lender and the Lenders
on the other hand, the Borrower assumes all risks of the acts and omissions of,
or misuse of, the Standby Letters of Credit by the respective beneficiaries of
such Standby Letters of Credit. Without limiting the generality of the
foregoing, neither the Issuing Lender nor any other Lender shall be responsible
(except in the case of its gross negligence or willful misconduct) for the
following:
(A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any documents submitted by any
party in connection with the application for and issuance of
or any drawing under such Standby Letters of Credit, even if
it should in fact prove to be in any respects invalid,
insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any such Standby Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any such Standby
Letter of Credit to comply fully with conditions required in
order to draw upon such Standby Letter of Credit, other than
material conditions or instructions that expressly appear in
such Standby Letter of Credit;
(D) errors, omissions, interruptions or delays in the
transmission or delivery of any messages by mail, cable,
telegraph, telecopier, telex or otherwise, whether or not they
are encoded;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under any such Standby Letter of Credit or the proceeds
thereof;
(G) the misapplication by the beneficiary of any such
Standby Letter of Credit of the proceeds of any drawing of any
such Standby Letter of Credit; or
(H) any consequences arising from causes beyond the
control of the Issuing Lender, including without limitation
any acts of governments.
The obligations of the Lenders to make payments to the Agent for the account of
the Issuing Lender with respect to Standby Letters of Credit shall be
irrevocable and not subject to any qualification or exception whatsoever 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:
(A) any lack of validity or enforceability of this Agreement or any of the
other Credit Documents;
(B) the existence of any claim, setoff, defense or
other right which the Borrower or any of its Subsidiaries may
have at any time against a beneficiary named in a Standby
Letter of Credit, any transferee of any Standby Letter of
Credit (or any Person for whom any such transferee may be
acting), the Agent, the Issuing Lender, any Lender, or any
other Person, whether in connection with this Agreement, any
Standby Letter of Credit, the transactions contemplated herein
or any unrelated transactions;
(C) any draft, certificate or any other document
presented under the Standby Letter of Credit shall prove to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein shall prove to be untrue or inaccurate
in any respect;
(D) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Credit Documents;
(E) the occurrence of any Event of Default or Potential Event of Default;
or
(F) the termination of this Agreement or any
Commitment.
(e) Standby Letter of Credit Drawings Constitute Revolving
Loans. The Issuing Lender shall promptly notify the Agent, and the Agent shall
promptly notify each Lender, in each case by telecopy or telex or other
customary form of teletransmission, of any drawing under any Standby Letter of
Credit (each drawing, a "Drawing"). Each Drawing shall immediately be deemed to
be and for all purposes of this Agreement shall constitute a Revolving Loan
hereunder in the amount of such drawing (which Revolving Loan shall, for the
avoidance of doubt, bear interest initially at the ABR). Each Lender shall
promptly and unconditionally pay to the Agent for the account of the Issuing
Lender an amount equal to such Lender's Pro Rata Share of such Drawing in same
day funds. Such payment shall be made to the Agent at the Agent Lending Office.
If the Agent delivers such notice to such Lender prior to 2:00 P.M. (Eastern
time) on any Business Day, such Lender shall make its required payment on the
same Business Day. If and to the extent such Lender shall not have made
available to the Agent for the account of the Issuing Lender such Lender's Pro
Rata Share of such Drawing, such Lender agrees to pay to the Agent for the
account of the Issuing Lender, promptly upon demand, such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Agent for the account of the Issuing Lender at the Federal Funds Rate
plus 100 basis points. The failure of any Lender to make available to the Agent
for the account of the Issuing Lender its Pro Rata Share of any Drawing shall
not relieve any other Lender of its obligation hereunder to make available to
the Agent for the account of the Issuing Lender its Pro Rata Share of any
Drawing on the date so required; provided, however, that no Lender shall be
responsible for the failure of any other Lender to make available to the Agent
for the account of the Issuing Lender such other Lender's Pro Rata Share of such
Drawing.
Section 2.05. Swing Line Loan Subfacility.
(a) Swing Line Subfacility. Subject to the terms and
conditions hereof, NationsBank, N.A., in its individual capacity (as such, the
"Swing Line Lender"), shall, in its sole and absolute discretion from and after
the Effective Date until one Business Day prior to the Maturity Date, make swing
line loans (each, a "Swing Line Loan" and, collectively, the "Swing Line Loans")
to the Borrower; provided, however, that (i) the aggregate principal amount of
all Swing Line Loans shall at no time exceed $5,000,000.00 (such amount, the
"Swing Line Subfacility"), and (ii) the sum of the aggregate outstanding amount
of all Revolving Loans (whether bearing interest at the ABR or Applicable LIBOR
Rate) plus the aggregate outstanding amount of all Swing Line Loans plus the
aggregate amount then available to be drawn under all outstanding Standby
Letters of Credit shall at no time exceed the Maximum Available Amount.
(b) The Swing Line Note; Maturity. The Swing Line Loans made
by the Swing Line Lender pursuant to this Section 2.4 shall be evidenced by a
separate Swing Line Note. The Swing Line Note shall be issued on or before the
Effective Date and shall bear interest for the period from the date of the
initial funding of any Swing Line Loan until paid in full on the unpaid
principal amount thereof. The Swing Line Lender is hereby authorized to record
in its books and records (without making any notation on the Swing Line Note or
any schedule thereto) the amount and date of funding of each Swing Line Loan
made by it, and the amount and date of each payment or prepayment of any Swing
Line Loan. No failure to so record nor any error in so recording shall affect
the obligations of the Borrower to repay the actual outstanding principal amount
of the Swing Line Loans, with interest thereon, as provided in this Agreement.
The aggregate principal amount of the Swing Line Loans shall be payable on the
Maturity Date, unless sooner accelerated pursuant to the terms of this
Agreement.
(c) Swing Line Loan Borrowing Procedure. The Swing Line Lender
shall make Swing Line Loans to the Borrower upon the terms and subject to the
conditions contained in the autoborrow services agreement entered into by the
Borrower and the Swing Line Lender (as such agreement may be amended, modified
or supplemented from time to time, the "Autoborrow Services Agreement"), and
otherwise on the date (which shall be a Business Day), at the time and in the
amount as provided in the Autoborrow Services Agreement. The Autoborrow Services
Agreement shall specify, among other things, the base interest rate applicable
to any Swing Line Loan (such rate, the "Base Swing Line Rate"), the minimum
amount of each Swing Line Loan and the minimum and maximum period during which
any Swing Line Loan may remain outstanding. The Swing Line Lender shall have no
obligation to make available to the Borrower any Swing Line Loan until such time
as the Borrower and the Swing Line Lender shall have executed and delivered the
Autoborrow Services Agreement.
(d) Interest on Swing Line Loans. Subject to the provisions of
clause (e) of this Section 2.4, in the event that the Swing Line Lender shall
make any Swing Line Loan pursuant to this Section 2.4 the aggregate principal
amount of Swing Line Loans outstanding from time to time shall bear interest at
a rate per annum equal to the Applicable Swing Line Rate (based on a 360 day
year and the actual number of days elapsed for the period during which such
Swing Line Loan shall remain outstanding). No Swing Line Loan may be converted
into a LIBOR Loan.
(e) Repayment of Swing Line Loans. Each Swing Line Loan made
by the Swing Line Lender hereunder shall be due and payable upon the expiration
of the period for which such Swing Line Loan shall be made in accordance with
the terms of the Autoborrow Services Agreement. The Swing Line Lender may, at
any time and in its sole and absolute discretion, by written notice to the
Borrower and the Agent (which shall promptly deliver a copy thereof to the other
Lenders), demand repayment of its Swing Line Loans then outstanding by way of
the making of a Revolving Loan borrowing (a "Mandatory Borrowing"), in which
case the Borrower shall be deemed to have requested a Revolving Loan borrowing
in the amount of the then outstanding Swing Line Loans which shall bear interest
initially at the ABR and shall be applied to refund the then outstanding Swing
Line Loans; provided, however, that, in the following circumstances, any such
demand shall also be deemed to have been given one Business Day prior to each of
(i) the occurrence of the Maturity Date, (ii) the occurrence of any Event of
Default described in clause (g) or (h) of Section 7.1 hereof, (iii) upon
acceleration of the Obligations hereunder, whether on account of an Event of
Default described in clause (g) or (h) of Section 7.1 or any other Event of
Default, and (iv) the exercise of remedies in accordance with the provisions of
Section 7.1 hereof. Each Lender hereby irrevocably agrees to make such Revolving
Loans promptly upon any such request or deemed request on account of a Mandatory
Borrowing, in the amount (but in proportion to each Lender's Pro Rata Share) and
in the manner specified in the preceding sentence and on the same such date
notwithstanding that (A) the amount of the Mandatory Borrowing may not comply
with the minimum amount for borrowings of Revolving Loans otherwise required
hereunder, (B) whether any conditions specified in Section 4.2 are then
satisfied, (C) whether an Event of Default or Potential Event of Default then
exists, (D) failure of any such request or deemed request for Revolving Loans to
be made by the time otherwise required in Section 2.2 hereof, (E) the date of
such Mandatory Borrowing, or (F) any reduction in the Revolving Loan Commitment
or termination of the Commitments relating thereto immediately prior to such
Mandatory Borrowing or contemporaneously therewith. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding in bankruptcy with respect to the Borrower), then each Lender hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Swing Line
Lender such participations in the then outstanding Swing Line Loans as shall be
necessary to cause each such Lender to share in such Swing Line Loans ratably
based upon its respective Pro Rata Share of the Revolving Loan Commitment
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 7.1); provided that (1)
all interest payable on the Swing Line Loans shall be for the account of the
Swing Line Lender until the date as of which the respective participation of
each other Lender is purchased, and (2) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Swing Line Lender interest on the principal
amount of such participation purchased for each day from and including the day
upon which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the rate equal to, if
paid within 2 Business Days of the date of the Mandatory Borrowing, the Federal
Funds Rate, and thereafter at a rate equal to the Applicable Swing Line Rate.
(f) Optional Prepayment of Swing Line Loans. Subject to the
provisions of this clause (f), the Borrower may, at its sole option, prepay the
principal amount of the Swing Line Loans in whole or in part (and in an amount
not less than the amount provided in the Autoborrow Services Agreement) at any
time and from time to time, without premium or penalty. In respect of each
Optional Prepayment of a Swing Line Loan proposed to be made by the Borrower,
the right of the Borrower to make such Optional Prepayment is subject to the
Agent's receipt from the Borrower, no later than 12:00 P.M. on the Business Day
specified therein as the date on which such Optional Prepayment is to be made,
of a written notice (which shall be irrevocable and a copy thereof shall be
promptly delivered by the Agent to the Swing Line Lender) specifying (i) that
the Borrower desires to prepay such Swing Line Loan, (ii) the principal amount
of such Optional Prepayment, and (iii) the date (which shall be a Business Day)
on which such Optional Prepayment will be made. Any Optional Prepayment of a
Swing Line Loan, which has not been converted to a Revolving Loan, made by the
Borrower as permitted hereunder shall be paid to the Agent for the account of
the Swing Line Lender no later than 12:00 P.M. (Eastern Time) on the applicable
prepayment date.
ARTICLE III.
INTEREST, FEES AND REPAYMENT
Section 3.01. Interest on the Revolving Loans
(a) ABR. Except as provided pursuant to clause (b) of this Section 3.1, the
aggregate principal amount of the Revolving Loans outstanding from time to time
shall bear interest at a rate per annum equal to the ABR until the entire
principal amount of the Revolving Loans shall have been repaid. Any change in
the rate of interest on the Revolving Loans resulting from a change in the ABR
shall be effective as of the opening of business on the day on which such change
is effective.
(b) LIBOR Rate. In the event the Borrower shall effect a LIBOR Conversion in
accordance with the provisions of Section 3.8 of this Agreement or obtain a
Revolving Loan that shall bear interest initially at the Applicable LIBOR Rate
as provided in Section 2.2(a) hereof, the aggregate principal amount of each
Revolving Loan that is the subject of such LIBOR Conversion or Borrowing Notice,
as the case may be, shall bear interest at a rate per annum equal to the
Applicable LIBOR Rate in respect of such Revolving Loan.
(c) Regulatory Changes. If, after the date of this Agreement, any
Regulatory Change
shall subject any Lender to any tax, duty or other charge with respect to its
obligation to make or maintain any Revolving Loan or Swing Line Loan or any
Standby Letter of Credit or its Commitment, or shall change the basis of
taxation of payments to such Lender of the principal of or interest on the
Revolving Loans or Swing Line Loans or in respect of any other amounts due under
this Agreement in respect of its obligation to make any Revolving Loan or Swing
Line Loan or any Standby Letter of Credit or maintain its Commitment or maintain
any Standby Letter of Credit (except for changes in the rate of tax on the
overall net income of such Lender); or shall impose, modify or deem applicable
any reserve, assessment, special deposit, capital adequacy, capital maintenance
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, such Lender or shall impose on such Lender any other
condition affecting (x) the obligation of the Lender to make or maintain the
Revolving Loans or Swing Line Loans or its Commitment or any Standby Letter of
Credit, or (y) the Revolving Notes or the Swing Line Note; and the result of any
of the foregoing is to increase the cost to such Lender of making or maintaining
any Revolving Loan or Swing Line Loan or any Standby Letter of Credit or
maintaining its Commitment or to reduce the amount of any sum received or
receivable by such Lender under, or the rate of return attributable to, this
Agreement or under the Revolving Notes or the Swing Line Note or any Standby
Letter of Credit, then such Lender shall give written notice to the Borrower if
such Regulatory Change shall impose costs in excess of those costs, or reduce
the amount of any such sum or rate of return below the amount or rate,
applicable on the date of this Agreement, and the Borrower shall pay to such
Lender for the account of such Lender, not later than 30 days following receipt
by the Borrower of such Lender's notice, such additional amount or amounts as
will compensate such Lender for such increase or reduction as reflected in a
certificate of such Lender attached to such notice setting forth the basis for
the amount of said increase or reduction, as the case may be. The Lender's
certificate attached to such notice shall be conclusive and binding on the
Borrower in the absence of manifest error.
Section 3.02. Interest after Due Date. In the event the Borrower fails
to make any payment of the principal amount of or interest on any of the
Revolving Loans or Swing Line Loans or of the Unused Portion Fee, the L/C Fee or
the Administrative Fee or any other amount owing hereunder, in each case when
due (whether by demand, acceleration or otherwise), the Borrower, shall pay to
the Agent for the account of the Lenders interest on such unpaid amount, payable
from time to time on demand, from the date such amount shall have become due to
the date of payment thereof, accruing on a daily basis, at a per annum rate (the
"Default Rate") equal to the sum of (x) the ABR plus (y) two percent (2%).
Section 3.03. Payment and Computations.
(a) Payments. All payments required or permitted to be made to the Agent, to the
Agent for the account of the Lenders, or to any Lender under this Agreement or
under any Revolving Note or the Swing Line Note shall be made in Dollars (i) if
to the Agent, at the Lending Office of the Agent in immediately available funds
and (ii) if to any Lender, to it in immediately available funds at an account
specified by such Lender in writing to the Borrower. The Borrower hereby
irrevocably instructs and authorizes the Agent to effect each payment of
interest on the Revolving Loans and the Swing Line Loans due on each Interest
Payment Date, and of each payment of the Unused Portion Fee, the L/C Fee and the
Administrative Fee due on the Fee Payment Date, by debiting the Borrower Account
on such Interest Payment Date or Fee Payment Date, as the case may be, with the
aggregate amount thereof, in each case, after giving effect to the crediting to
the Borrower Account of the proceeds of the Revolving Loan, if any, made on such
Interest Payment Date or Fee Payment Date, as the case may be, in accordance
with Section 2.2(a) of this Agreement. The Agent shall provide to the Borrower
an invoice showing the amount of such debit and the manner in which it was
calculated.
(b) Computations of Interest. Interest on the unpaid portion of the Revolving
Loans and the Swing Line Loans, and interest accruing at the Default Rate on any
amount owing hereunder, shall each be calculated for the actual number of days
(including the first day but excluding the last day) elapsed and shall be
computed on the basis of a year of 360 days.
(c) Interest on Loans. Interest on the Revolving Loans and the Swing Line Loans
shall be payable in arrears on each Interest Payment Date.
(d) Application of Payments; Apportionment.
(i) Apportionment of Payments and Prepayments. Unless
a Lender shall be in default of its obligations to advance any
Revolving Loan or reimburse the Agent as provided herein, all
payments and prepayments of principal and interest in respect
of outstanding Revolving Loans and all payments of fees (other
than any fees payable pursuant to the Administrative Fee
Letter) and all other payments in respect of any other
Obligations (other than with respect to the Swing Line Loans)
shall be allocated among (and paid over as soon as reasonably
practicable after receipt thereof to) such of the Lenders as
are entitled thereto in proportion to their respective Pro
Rata Share. All payments and prepayments of principal and
interest and other amounts in respect of the Swing Line Loans
that have not been converted to Revolving Loans shall be
allocated to the Swing Line Lender, and all fees payable
pursuant to the Administrative Fee Letter shall be allocated
only to the Agent.
(ii) Upon the occurrence and during the continuance
of an Event of Default, the Agent shall, unless otherwise
specified by the Required Lenders as provided in the last
paragraph of this clause (ii), apply all payments (including
the proceeds of any collateral obtained upon the exercise by
the Agent of any remedy specified in any Credit Document) in
respect of any Obligations:
(A) first, to pay Obligations to the Agent
in respect of reimbursement of any costs and expenses
(including reasonable attorney's fees and
disbursements) in connection with the exercise of any
remedies by the Agent under any Credit Document;
(B) second, to pay interest on and then
principal of any portion of the Revolving Loans which
the Agent may have advanced on behalf of any Lender
for which the Agent has not then been reimbursed by
such Lender or the Borrower;
(C) third, to pay Obligations in respect of
any fees, expense reimbursement or indemnities due to
the Agent other than as provided in subclause (A)
above;
(D) fourth, to pay Obligations in respect of
any fees, expense reimbursement, indemnities,
increased costs or breakage then due to the Lenders,
pro rata;
(E) fifth, to the ratable payment of overdue
interest or late charges, if any, then due the
Lenders;
(F) sixth, to the ratable payment of
interest due in respect of the Revolving Loans and
the Swing Line Loans;
(G) seventh, to the ratable payment or
prepayment of principal due in respect of the
Revolving Loans and the Swing Line Loans; and
(H) eighth, to the ratable payment of all other Obligations;
provided, however, that no Lender that shall be in default of its obligations to
fund Revolving Loans or reimburse the Agent as provided herein shall be entitled
to its ratable share of payments in respect of any Obligations prior to the
payment to all non-defaulting Lenders of all amounts due such Lenders as
provided herein.
The order of priority set forth in this Section 3.4(d)(ii) is
set forth solely to determine the rights and priorities of the Agent and the
Lenders as among themselves. The order of priority set forth in clauses (D)
through (H) of this Section 3.4(d)(ii) may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person. The order of priority set forth
in clauses (A) through (C) of this Section 3.4(d)(ii) may be changed only with
the prior written consent of the Agent.
Section 3.04. Payment at Maturity. Any outstanding principal amount of
the Revolving Notes and the Swing Line Note theretofore not repaid, together
with any accrued and unpaid Unused Portion Fee, Administrative Fee or L/C Fee,
any accrued and unpaid interest thereon, together with any other amounts due and
payable in accordance with the provisions hereof (including pursuant to Section
9.10 hereof), shall be due and payable in full on the Maturity Date (unless
sooner accelerated pursuant to the terms hereof), and this Agreement shall not
terminate until all Obligations shall have been paid in full.
Section 3.05. Prepayments; Certain Early Repayments.
(a) Mandatory Prepayment of Revolving Loans, Swing Line Loans and Standby
Letters of Credit. If at any time the Total Outstanding Amount shall be greater
than the Maximum Available Amount, the Borrower shall, without notice from the
Lender, prepay that portion of the Revolving Loans, Swing Line Loans and/or the
Standby Letters of Credit, as the case may be, in an amount equal to such
excess.
(b) Optional Prepayments of Revolving Loans. Subject to the terms and conditions
of clause (c) below and Section 3.9 hereof, the Borrower may, at its sole option
prepay the principal amount of the Revolving Loans (whether bearing interest at
the ABR or Applicable LIBOR Rate) in whole or in part (in an amount of
$1,000,000 or more and in multiples of $250,000) at any time and from time to
time, without premium or penalty.
(c) Optional Prepayment Procedure. In respect of each Optional Prepayment of
Revolving Loans (whether bearing interest at the ABR or Applicable LIBOR Rate)
proposed to be made by the Borrower, the right of the Borrower to make such
Optional Prepayment is subject to the Agent's receipt from the Borrower, no
later than 10:00 A.M. (Eastern Time) on the Business Day specified therein as
the date on which such Optional Prepayment is to be made (unless such Optional
Prepayment shall relate to the prepayment of any LIBOR Loan, in which case such
notice shall be given no later than 10:00 A.M. (Eastern time) at least three (3)
Business Days prior to the date of prepayment), of a written notice (which shall
be irrevocable) specifying (i) that the Borrower desires to prepay the Revolving
Loans, (ii) the principal amount of such Optional Prepayment and the extent
which any portion thereof relates the prepayment of any LIBOR Loan, and (iii)
the date (which shall be a Business Day or, if such Optional Prepayment relates
to a LIBOR Loan, a LIBOR Business Day) on which such Optional Prepayment will be
made. Any Optional Prepayment of Revolving Loans made by the Borrower as
permitted hereunder shall be paid to the Agent for the account of the Lenders no
later than 12:00 P.M. (Eastern Time) on the applicable prepayment date (except
that any prepayment of a LIBOR Loan shall be paid no later than 10:00 A.M.
(Eastern Time) on the applicable prepayment date).
Section 3.06. Unused Portion Fee and Administrative Fee.
(a) Unused Portion Fee. For each Fiscal Quarter (or part thereof) during the
period from the Effective Date until the Maturity Date, the Borrower shall pay
to the Agent, for the account of the Lenders pro rata based upon each Lender's
Pro Rata Share of the Revolving Loan Commitment, an unused portion fee (the
"Unused Portion Fee") determined by subtracting the Total Outstanding Amount
(computed on the basis of the daily average for such Fiscal Quarter) from the
Revolving Loan Commitment Amount. The Unused Portion Fee shall be computed at a
rate per annum equal to, in the event the Funded Debt to EBITDA ratio calculated
pursuant to Section 6.1(e) hereof is (i) less than 0.50 to 1.00, then 0.19%,
(ii) greater than or equal to 0.50 but less than 1.50 to 1.00, then 0.22%, (iii)
greater than or equal to 1.50 to 1.00 but less than 2.50 to 1.00, then 0.25%,
and (iv) greater than or equal to 2.50 to 1.00, then 0.25%. The Unused Portion
Fee shall be due and payable in arrears on the Fee Payment Date to which such
Unused Portion Fee relates and on the Maturity Date, and shall be calculated on
the basis of a 360 day year and the actual days elapsed. The Unused Portion Fee
for any Fiscal Quarter shall be determined based on the financial statements
delivered by the Borrower during the immediately preceding Fiscal Quarter;
provided, however, that if such financial statements are not delivered when due,
then the highest Funded Debt to EBITDA ratio shall apply.
(b) Administrative Fee. During the term of this Agreement, the Borrower shall
pay to the Agent, as compensation for the services of the Agent hereunder, a fee
(the "Administrative Fee") in an amount specified in, and subject to the terms
and conditions of, that certain letter agreement, dated the Effective Date,
between the Borrower and the Agent (as the same may from time to time be
amended, modified or supplemented, the "Administrative Fee Letter"). The
Administrative Fee shall be due and payable on each Fee Payment Date, as
provided in the Administrative Fee Letter.
Section 3.07. LIBOR Conversion.
(a) Conversion. So long as no Event of Default or Potential Event of Default
shall have occurred and be continuing, the Borrower shall have the right to
convert all or part of the outstanding ABR Loans to loans bearing interest at
the then Applicable LIBOR Rate (such conversion, a "LIBOR Conversion");
provided, however, that the LIBOR Period to which such LIBOR Conversion shall
relate will not extend beyond the Maturity Date. In order to effect a LIBOR
Conversion, the Borrower shall give the Agent irrevocable written notice (such
notice, a "LIBOR Conversion Notice") prior to 10:00 A.M. (Eastern time) on the
date (which must be a Business Day) that is at least three (3) LIBOR Business
Days prior to the first day of the LIBOR Period to which such LIBOR Conversion
shall apply, stating that (i) the Borrower wishes to effect a LIBOR Conversion,
(ii) the aggregate principal amount of outstanding ABR Loans which the Borrower
wishes to bear interest at the Applicable LIBOR Rate (it being understood and
agreed that no LIBOR Conversion shall be permitted in an amount less than
$1,000,000.00 and shall be in multiples of $250,000.00), (iii) the applicable
LIBOR Period being elected by the Borrower (it being understood that no change
in LIBOR with respect to any then outstanding LIBOR Loan may be effected during
the LIBOR Period relating thereto) and (iv) the Business Day on which the LIBOR
Period is to be effective.
(b) Notice of LIBOR to Borrower. In the event the Borrower has requested a LIBOR
Conversion, the Agent shall give written notice to the Borrower and the Lenders
of LIBOR as promptly as reasonably possible after such rate is determined. The
Agent's determination of LIBOR shall be conclusive in the absence of manifest
error.
(c) Successive Notice of LIBOR Conversion. Subject to the provisions of clause
(a) of this Section 3.8, the Borrower may, by executing a LIBOR Conversion
Notice at least three LIBOR Business Days prior to the first day of the LIBOR
Period to which such LIBOR Conversion Notice shall apply, execute successive
LIBOR Conversions with respect to any then outstanding ABR Loan together with
any then outstanding LIBOR Loans the LIBOR Period in respect of which is
scheduled to expire on or before the start of the LIBOR Period specified in such
LIBOR Conversion Notice. If, with respect to any LIBOR Loans, the Agent shall
not have received a LIBOR Conversion Notice for the next immediately succeeding
LIBOR Period which complies with the provisions of clause (a) of this Section
3.8, such LIBOR Loans shall, immediately upon the expiration of the then current
LIBOR Period and without any notice to the Borrower, bear interest at the ABR in
accordance with the provisions of Section 3.1(a) of this Agreement.
Section 3.08. Breakage, etc. In the event of the prepayment of any
LIBOR Loan (whether by way of acceleration or otherwise or due to an Optional
Prepayment of any LIBOR Loan pursuant to Section 3.6(b) hereof), the Borrower
shall pay to each Lender whose LIBOR Loan has been so prepaid any loss or
expense which such Lender may incur or sustain directly as a result of such
prepayment, including, without limitation, an amount equal to (i) an amount of
interest which would have accrued on the amount so prepaid for the period
beginning on the date of such prepayment and ending on the last day of the
applicable LIBOR Period (such period, the "Breakage Period"), at the Applicable
LIBOR Rate minus (ii) the amount of interest (as reasonably determined by each
affected Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for the Breakage Period with leading banks in the
London interbank market. All amounts owing to a Lender pursuant to this Section
3.9 shall be paid by the Borrower promptly upon written request therefor.
Section 3.09. Inability to Determine Interest Rate for LIBOR Loans. In
the event that the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that (a) by reason of circumstances
affecting the London interbank market generally, adequate and reasonable means
do not exist for ascertaining LIBOR for any LIBOR Period with respect to (i) any
proposed Revolving Loan that the Borrower has requested be made as a LIBOR Loan,
(ii) any LIBOR Loans that will result from the requested conversion of all or
part of any ABR Loans into LIBOR Loans, or (iii) the continuation of any LIBOR
Loan as such for an additional LIBOR Period, (b) LIBOR determined or to be
determined for any LIBOR Period will not adequately and fairly reflect the cost
to the Lenders of making or maintaining their affected LIBOR Loans during such
LIBOR Period by reason of circumstances affecting the London interbank market
generally or (c) dollar deposits in the relevant amount and for the relevant
period with respect to any such LIBOR Loan are not available to the Agent in the
London interbank market, then the Agent shall, prior to the requested Funding
Date or the conversion date or the last day of the then applicable LIBOR Period,
as the case may be, notify the Borrower (by telephone or otherwise, confirmed in
writing), with a copy to the Lenders, of such determination. If the Agent shall
have given such notice, then (x) any requested LIBOR Loans shall be made as ABR
Loans, (y) any ABR Loans that were to have been converted to LIBOR Loans shall
be continued as ABR Loans, and (z) any outstanding LIBOR Loans shall be
converted, on the last day of the then current LIBOR Period applicable thereto,
into ABR Loans. Until such notice has been withdrawn by the Agent, no further
LIBOR Loans shall be made and no ABR Loans shall be converted to LIBOR Loans.
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effective Date. This Agreement,
and the Revolving Loan Commitment of the Lenders hereunder, shall become
effective at a closing at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, only on the Business Day (the "Effective
Date") on which all of the following conditions precedent shall have been
fulfilled to the satisfaction of the Lenders; provided, however, that in the
event the Effective Date shall have not occurred on or prior to December 31,
1998, the Lenders shall have no further obligations hereunder:
(i) The Agent, on behalf of the Lenders, shall have received
from the Borrower the following instruments, agreements, certificates and
payments, as the case may be, on or prior to the Effective Date:
(A) Revolving Notes. A Revolving Note, dated on or prior to
the Effective Date, payable to the order of each Lender in the amount
of such Lender's Pro Rata Share of the Revolving Loan Commitment and
duly executed by the Borrower;
(B) Borrower Security Agreement. The Borrower Security
Agreement, dated on or prior to the Effective Date, duly executed by
the Borrower in favor of the Agent;
(C) Subsidiary Guarantee. The Subsidiary Guarantee, dated on
or prior to the Effective Date, duly executed in favor of the Agent by
each of ▇▇▇▇▇▇ Bailly Services, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc.,
HB Capital, Inc., Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc., TB&A Group, Inc.,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Associates, Private Label Energy Services, Inc. and
Fieldston Publications, Inc.;
(D) Swing Line Note. A Swing Line Note, dated on or prior to
the Effective Date, payable to the order of NationsBank, N.A., in the
amount of $5,000,000.00 and duly executed by the Borrower;
(E) Subsidiary Security Agreements. A separate Subsidiary
Security Agreement, dated on or prior to the Effective Date, duly
executed in favor of the Agent by each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Services, Inc.,
▇▇▇▇▇▇ Bailly Consulting, Inc., HB Capital, Inc., Putnam, Hayes &
▇▇▇▇▇▇▇▇, Inc., TB&A Group, Inc., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Associates,
Private Label Energy Services, Inc. and Fieldston Publications, Inc.;
(F) Financing Statements. All uniform commercial code
financing statements shall have been filed, and all other actions
(including, without limitation, the filing of notices of assignment
with the United States government, as required by the Lenders) shall
have been taken, as shall be necessary or advisable to effect the
perfection of the Agent's security interest in the collateral pledged
or assigned under the Borrower Security Agreement and each Subsidiary
Security Agreement, as applicable;
(G) Legal Opinions. The Agent shall have received (i) an
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., special counsel to the Credit
Parties, dated the Effective Date and addressed to the Agent and the
Lenders, covering such matters incident to the transactions
contemplated by the Credit Documents as the Lenders shall reasonably
request and in form and substance satisfactory to the Lenders and their
counsel, and (ii) an opinion of ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, Esq., General
Counsel of the Borrower, dated the Effective Date, addressed to the
Agent and the Lenders, covering such matters incident to the
transactions contemplated by the Credit Documents as the Lenders shall
reasonably request and in form and substance satisfactory to the
Lenders and their counsel. Each such opinion will permit the reliance
thereon by any financial institution that becomes a party to the Credit
Documents following the execution thereof by way of assignment;
(H) Resolutions. A certified copy of the resolutions of the
Board of Directors of each Credit Party authorizing the execution and
delivery of the Credit Documents to which it is a party;
(I) Charter Documents. A copy of the charter documents and
by-laws of each Credit Party, together with all amendments thereto,
certified by the Secretary of such Credit Party as being true, complete
and correct and in effect as of the Effective Date;
(J) Incumbency Certificate. An incumbency certificate of the
Secretary, an Assistant Secretary or an Assistant Treasurer of each
Credit Party certifying the names and true signatures of each officer
of such Credit Party authorized to execute the Credit Documents to
which such Credit Party is a party;
(K) Compliance Certificate. A certificate of an Authorized
Officer of the Borrower, dated the Effective Date, certifying that the
matters contained in clauses (iii), (iv) and (v) of Section 4.2 hereof
are true and correct;
(L) Insurance. A certificate of an Authorized Officer of the
Borrower, dated the Effective Date, certifying, in form and substance
reasonably satisfactory to the Lenders, the Borrower's compliance with
Section 6.1(m) hereof, having attached to such certificate a summary in
reasonable detail of the Borrower's and its Subsidiaries' insurance
coverage. The Borrower shall deliver an insurance report, in form and
substance reasonably acceptable to the Lenders, of an independent
insurance broker as to due compliance as of the Effective Date with
Section 6.1(m) hereof; and
(M) Lien Search. The results of a recent search, upon the
records maintained with the appropriate Secretary of State and county
or city recorder offices of all jurisdictions deemed advisable by the
Lenders, regarding personal property, judgment and tax liens, if any,
on file with such offices and naming the Borrower or any Subsidiary as
a debtor, which results shall be satisfactory to the Lenders.
(ii) Financial Disclosure. The Borrower shall have disclosed
to the Lenders promptly from time to time any material developments or changes
in the Borrower and its Subsidiaries', taken as a whole, business, assets,
results of operations, condition (financial or otherwise) or prospects,
including without limitation amendments to their charter documents or the
Borrower's Form 10-K or 10-Q and the exhibits thereto, and any material
amendments, changes or terminations of any material contracts or the award of or
loss of any material bid or proposal. Any such material developments, changes or
amendments shall not have affected adversely the assumptions contained in the
credit analysis of the Borrower performed by the Lenders prior to the execution
of this Agreement or resulted in a material adverse change since September 30,
1998 in the business, assets, results of operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole;
(iii) Financial Statements. The Borrower shall have delivered
to the Lenders (A) the Borrower's Form 10-K for the Fiscal Year ended December
31, 1997 and Form 10-Q for the Fiscal Quarters ended March 31, June 30, 1998 and
September 30, 1998, and (B) such other unaudited consolidated financial
statements of the Borrower and its Subsidiaries as any Lender shall reasonably
request, together with, in each case, an officer's certificate, dated the
Effective Date, from each of the Borrower's Chief Financial Officer and
Treasurer, stating that, to their personal knowledge after having performed such
due diligence as would customarily be performed by a corporate officer in their
position but no additional due diligence, the Borrower's Form 10-K and Form
10-Qs and unaudited consolidated financial statements, if any, attached thereto
as of the Effective Date do not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) Legal Matters. All legal matters incident to this
Agreement shall be satisfactory to counsel for the Lenders, and the Borrower
shall have reimbursed the Lenders for their fees and expenses and the fees and
expenses of the Lenders' counsel in connection with the preparation or review,
as the case may be, of the Credit Documents and all matters incident thereto (it
being understood that such statement may not reflect the final statement of fees
and expenses incurred by the Lenders' counsel in connection with such
preparation or review);
(v) Schedules. All schedules delivered hereunder by the Borrower shall be
in form and substance satisfactory to the Lenders;
(vii) Due Diligence. The Lenders shall have completed their
due diligence review of the Borrower and its Subsidiaries, including their
business, assets, results of operations, condition (financial or otherwise),
prospects, liabilities (both actual and contingent, including environmental
liabilities), management and affairs, and the results thereof shall have been
satisfactory to the Lenders in their sole discretion;
(viii) State Street Bank Credit Facility. The Lenders and
State Street Bank shall have entered into an arrangement, in form and substance
satisfactory to the Lenders, providing for the payment in full of all amounts,
if any, owing under the State Street Bank Credit Facility as of the Effective
Date with the proceeds of the Revolving Loans made to the Borrower on the
Effective Date. State Street Bank shall have (A) agreed to permit the filing of
the Uniform Commercial Code financing statements contemplated by clause (iii) of
this Section 4.1 prior to the termination of the credit facility commitment
under the State Street Bank Credit Facility and (B) delivered to the Agent on
the Effective Date a Uniform Commercial Code termination statement,
appropriately completed, in respect of each Uniform Commercial Code financing
statement filed by State Street Bank that covers property of the Borrower or any
Subsidiary thereof and that secures the indebtedness arising under the State
Street Bank Credit Facility. State Street Bank shall have agreed that, upon
payment in full of all amounts, if any, owing under the State Street Bank Credit
Facility as of the Effective Date, the Agent shall be permitted to file all such
Uniform Commercial Code termination statements on behalf of State Street Bank;
(ix) BankBoston Credit Facility. The Lenders shall have
received from BankBoston, N.A. evidence that all amounts owing under the
BankBoston Credit Facility have been repaid and that the facility provided
thereunder has been terminated. In addition, BankBoston, N.A. shall have
delivered to the Agent on the Effective Date a Uniform Commercial Code
termination statement, appropriately completed, in respect of each Uniform
Commercial Code financing statement filed by BankBoston, N.A. that covers
property of Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc. or the Borrower or any other
Subsidiary thereof and that secures the indebtedness arising under the
BankBoston Credit Facility;
(x) NationsBank, N.A. shall have received from the Borrower,
by wire transfer of immediately available funds to an account designated by
NationsBank, N.A., the syndication fee payable by the Borrower pursuant to the
Administrative Fee Letter;
(xi) Miscellaneous. The Lenders shall have received such other
documents, instruments, certificates, opinions, agreements and information as
the Lenders or their counsel shall reasonably request in their discretion in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, current consolidated and consolidating
financial statements of the Borrower and its Subsidiaries, a report describing
the aggregate amount and current age status of accounts receivable and payable
of the Borrower and its Subsidiaries, a report describing the current status of
goods or services on backlog with the Borrower or any Subsidiary thereof and a
report describing the status of pending or threatened litigation).
Section 2.01. Further Conditions Precedent to Revolving Loans and Standby
Letters of Credit. The obligation of the Agent, on behalf of the Lenders, to
make any Revolving Loan, the obligation of the Swing Line Lender to make any
Swing Line Loan, and the obligation of the Issuing Lender to issue any Standby
Letter of Credit shall be subject to the fulfillment to the satisfaction of the
Lenders, in the case of Revolving Loans and Standby Letters of Credit, and the
Swing Line Lender, in the case of Swing Line Loans, of the further conditions
precedent that, on the Funding Date for such Revolving Loan or Swing Line Loan
or the issuance date for such Standby Letter of Credit, as the case may be:
(i) Notice. In the case of any Revolving Loan or Standby
Letter of Credit, the Agent shall have received a Borrowing Notice
(except as otherwise provided in the last sentence of Section 2.2(a) of
this Agreement) in accordance with Section 2.2(a) or the Issuing Lender
shall have received a request for a Standby Letter of Credit in
accordance with Section 2.3(c), as the case may be, in each case
executed by an Authorized Officer of the Borrower (or other officer of
the Borrower designated by such Authorized Officer as having authority
to execute such notice);
(ii) Payment of Obligations. The prospect of payment of all
obligations and liabilities outstanding or to become outstanding under
this Agreement is not impaired due to acts or events materially bearing
upon the financial condition of the Borrower, as determined by the
Required Lenders in their sole discretion;
(iii) No Material Adverse Change. Since the date of the most
recent financial statements or projections provided to the Lenders,
there shall have been no material adverse change in the Borrower's and
the Guarantors' (taken as a whole) financial condition or in the
Borrower's and the Guarantors' (taken as a whole) assets or prospects,
in each case as determined by the Required Lenders in their sole
discretion;
(iv) Representations and Warranties. The representations and
warranties of each Credit Party in the Credit Documents are true and
correct as of such Funding Date (or, in the case of Standby Letters of
Credit, the date of issuance thereof) as though made on and as of such
Funding Date (or, in the case of Standby Letters of Credit, the date of
issuance thereof), except to the extent such representations and
warranties relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date (and, if any such representation and warranty shall not be
true and correct, the Borrower shall describe in writing to the Agent
the nature of such misrepresentation and warranty);
(v) No Event of Default. No event has occurred and is
continuing, or would result from such Revolving Loan or Swing Line Loan
after giving effect to the application of the proceeds therefrom or
from the issuance of such Standby Letter of Credit if the beneficiary
thereof were to fully draw upon such Standby Letter of Credit on the
date of issuance, which constitutes an Event of Default or would
constitute a Potential Event of Default;
(vi) Maximum Available Amount. After giving effect to the
making of such Revolving Loan or Swing Line Loan on the Funding Date
thereof or the issuance of such Standby Letter of Credit on the
issuance date thereof, the Total Outstanding Amount shall not exceed
the Maximum Available Amount; and
(vii) Officer's Certificate. In the case of any Revolving Loan
or Standby Letter of Credit, the Agent shall have received a
certificate, addressed to the Lenders, of an Authorized Officer of the
Borrower, dated the date of the Borrowing Notice, certifying that the
matters contained in clauses (iii), (iv), (v) and (vi) of this Section
4.2 are true and correct.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into
this Agreement and make the Revolving Loans and Swing Line Loans contemplated by
the terms hereof, the Borrower represents and warrants with respect to itself
and its Subsidiaries, as the context shall require, as of the date hereof and as
of the Effective Date that:
Section 5.1 Existence, Power and Authority. The Borrower and each
Subsidiary thereof is a corporation or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with full corporate or company power and
authority to carry on its business as currently conducted and to own or hold
under lease its property; the Borrower and each Subsidiary thereof is duly
qualified to do business as a foreign corporation or other entity in good
standing in each other jurisdiction in which the conduct of its business or the
maintenance of its property requires it to be so qualified and where the failure
to be so qualified would have a material adverse effect on the financial
condition, business or operation of the Borrower or such Subsidiary; and, the
Borrower and the other Credit Parties have full power and authority (corporate
or otherwise) to execute and deliver the Credit Documents to which they are a
party and to carry out the transactions contemplated thereby.
Section 5.02. Authorization; Enforceable Obligations. Each Credit
Document to which the Borrower and the other Credit Parties are a party has been
duly authorized, executed and delivered (or will, on the Effective Date, be duly
authorized, executed and delivered) by the Borrower and such other Credit
Parties and constitutes the legal, valid and binding obligation of the Borrower
and such other Credit Parties, enforceable against the Borrower and such other
Credit Parties in accordance with its terms (except as such enforceability may
be limited by general principles of the law of equity or by any applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws and laws
affecting creditors' rights generally).
Section 5.03. No Legal Bar. The execution, delivery and performance by
the Borrower and the other Credit Parties of the Credit Documents to which they
are a party (i) do not or will not violate the certificate of incorporation
(including any preferred stock designations or provisions incorporated therein
or attached thereto), by-laws or other charter or formation document of the
Borrower or such other Credit Parties, (ii) do not or will not violate or
conflict with any law, governmental rule or regulation or any judgment, writ,
order, injunction, award or decree of any court, arbitrator, administrative
agency or other governmental authority applicable to the Borrower or such other
Credit Parties, or any indenture, mortgage, contract, agreement or other
undertaking or instrument to which the Borrower or such other Credit Parties is
a party or by which their respective property may be bound and (iii) do not and
will not result in the creation or imposition of any lien, mortgage, security
interest or other encumbrance on any of its property pursuant to the provisions
of any such indenture, mortgage, contract, agreement or other undertaking or
instrument other than pursuant to the Credit Documents.
Section 5.04. Consents. The execution, delivery and performance by the
Borrower and the other Credit Parties of the Credit Documents to which they are
a party do not require any consent, which has not been obtained, of any other
Person (including, without limitation, stockholders of the Borrower or such
other Credit Parties) or any consent, license, permit, authorization or other
approval of, any giving of notice to, exemption by, any registration,
declaration or filing with, or any taking of any other action in respect of, any
court, arbitrator, administrative agency or other governmental authority.
Section 5.05. Litigation. Except as set forth on Schedule 5.5 hereto,
there is no action, suit, investigation or proceeding by or before any court,
arbitrator, administrative agency or other governmental authority pending or, to
the knowledge of the Borrower or the Subsidiaries, threatened (i) which involves
any of the transactions contemplated by this Agreement or any other Credit
Document or (ii) against or affecting the Borrower or any Subsidiary thereof
which, if adversely determined against the Borrower or such Subsidiary, would
result in a judgment of $400,000 or more or, if such action, suit, investigation
or proceeding does not seek money damages, could in the reasonable judgment of
the Borrower materially adversely affect the financial condition, business or
operation of the Borrower or such Subsidiary.
Section 5.06. No Default. Except as set forth on Schedule 5.6 hereto,
neither the Borrower nor any Subsidiary thereof is in default under any order,
writ, injunction, award or decree of any court, arbitrator, administrative
agency or other governmental authority binding upon it or its property, or any
indenture, mortgage, or other undertaking or instrument of indebtedness or any
material contract, agreement or other arrangement, to which it is a party or by
which its property may be bound, and nothing has occurred which would materially
adversely affect the ability of any of them to carry on their respective
business or perform their respective obligations under any such order, writ,
injunction, award or decree or any such indenture, mortgage, or other
undertaking or instrument of indebtedness or any material contract, agreement or
other arrangement.
Section 5.07 Financial Condition. The financial statements of the
Borrower (including the Borrower's Form 10-K and Form 10-Q) and its
Subsidiaries, copies of which have been furnished to the Lenders, were prepared
in None of the proceeds of any Revolving Loan have been or will be used to
purchase or carry, or reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulations G, T, U
and X of the Board of Governors of the Federal Reserve system) or to extend
credit to others for the purchasing or carrying of any margin stock. Neither the
Borrower nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying any margin stock.
Section 5.08. Borrower Not an Investment Company. TC "Section 5.9
Borrower Not an Investment Company." \f C \l "2" Neither the Borrower nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
Section 5.09 Taxes. TC "Section 5.10 Taxes." \f C \l "2" The Borrower
and its Subsidiaries have filed or caused to be filed all tax returns which are
required to be filed by them and have paid or caused to be paid all taxes which
have been shown to be due and payable by such returns or (except to the extent
being contested in good faith and for the payment of which adequate reserves
have been provided) tax assessments received by the Borrower or any Subsidiary
thereof to the extent that such taxes have become due and payable.
Section 5.10. Environmental Matters. TC "Section 5.11 Environmental
Matters." \f C \l "2" The Borrower and its Subsidiaries conduct their respective
operations in compliance with all applicable laws and regulations concerning the
discharge of substances into the environment and other environmental control
matters, except to the extent that non-compliance would not have a material
adverse effect on the business, results of operations or condition (financial or
otherwise) of the Borrower and the Guarantors (taken as a whole). Neither the
Borrower nor any Subsidiary thereof has any liability, contingent or otherwise,
under any law, ordinance or regulation relating to the storage, transport,
disposal or release of "oil", "petroleum products", "hazardous substance",
"hazardous waste", "hazardous material", "hazardous chemical substance",
"refuse" or any other term of similar import (as such terms are defined in any
such law, ordinance or regulation) (collectively, "Hazardous Substances"),
except to the extent that any such liability would not have a material adverse
effect on the business, results of operations or condition (financial or
otherwise) of the Borrower and the Guarantors (taken as a whole).
Section 5.11. Subsidiaries. TC "Section 5.12 Subsidiaries." \f C \l "2"
Set forth on Schedule 5.12 hereof is a complete and correct list of all
Subsidiaries of the Borrower as of the date hereof together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each Person and percentage of ownership of such
Subsidiary represented by such ownership interests. Except as disclosed on
Schedule 5.12 hereof, (x) each of the Borrower and its Subsidiaries owns, free
and clear of Liens (other than (A) any Liens created pursuant to the Credit
Documents and (B) Liens for taxes and assessments not yet due), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it on Schedule 5.12 hereof, (y) all of the issued and
outstanding shares of capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable, and (z) there are
no outstanding Equity Rights with respect to such Person except for such Equity
Rights as are set forth on Schedule 5.12 hereof. As of the date hereof, (i) no
Foreign Subsidiary of the Borrower has annual revenues of $10,000,000.00 or
more, and (ii) the total revenues or profits of all Foreign Subsidiaries of the
Borrower for any quarterly or annual period ended prior to the date hereof have
not comprised more than 20% of the total revenues or profits of the Borrower and
its Consolidated Subsidiaries. As of the Effective Date, no Domestic Subsidiary
of the Borrower constitutes a Material Domestic Subsidiary other than those
Subsidiaries of the Borrower listed on Schedule 5.12 and specifically identified
as Material Domestic Subsidiaries.
Section 5.12. Year 2000 Compliance. TC "Section 5.13 Year 2000
Compliance." \f C \l "2" The Borrower has (i) initiated a review and assessment
of all areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers and vendors) that could be adversely
affected by the risk that computer applications used by the Borrower or any of
its Subsidiaries (or its suppliers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999 (the "Year 2000 Problem"), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those of
its suppliers and vendors) that are material to its or any of its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (such
compliance, "Year 2000 Compliant"), except to the extent that a failure to do so
could not reasonably be expected to have a material adverse effect on the
Borrower and the Guarantors, taken as a whole.
Section 5.13. Ownership of Property; Liens. TC "Section 5.14 Ownership
of Property; Liens." \f C \l "2" Neither the Borrower nor any of its
Subsidiaries owns any real property, except as set forth on Schedule 5.14
hereof. The Borrower and each of its Subsidiaries has valid leasehold interests
in all its respective material real property purported to be leased by it, and
has good title to all its respective material other property purported to be
owned by it, and none of such property is subject to any Lien, except as
permitted by Section 6.2(a) hereof, and all of such property taken as a whole is
sufficient in all material respects for the Borrower and its Subsidiaries to
conduct their respective business as it has been and is presently being
conducted by them.
Section 5.14 Public Utility Holding Company Act. TC "Section 5.15
Public Utility Holding Company Act." \f C \l "2" Neither the Borrower nor any
Subsidiary thereof is a "holding company", or an affiliate of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
ARTICLE VI.
COVENANTS
Section 6.01. Affirmative Covenants. TC "Section 6.1 Affirmative Covenants." \f
C \l "2" The Borrower covenants and agrees for itself and its Subsidiaries (in
which case the Borrower shall cause such Subsidiaries to take or refrain from
taking the actions described below) that, so long as this Agreement shall remain
in effect or any Obligation shall remain unpaid:
(a) Audited Annual Financials. The Borrower shall deliver to the Agent and each
Lender, as soon as available but within 120 days of the end of each fiscal year
of the Borrower ending December 31 (each such year, a "Fiscal Year"), a full and
complete set of the annual audited consolidated financial statements (including
statements of financial condition, income, cash flows and changes in
shareholders' equity), together with all notes thereto, of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP and certified by an
independent accounting firm of national recognition reasonably acceptable to the
Required Lenders (which certificate shall be accompanied by an unqualified
opinion of such accounting firm of such statements). The audited financial
statement required to be delivered under this clause (a) shall be accompanied by
a certificate of any Authorized Officer of the Borrower to the effect that the
Borrower and the other Credit Parties are in compliance with all covenants
contained in this Agreement (including the financial ratios contained in this
Section 6.1) and the other Credit Documents and that no Event of Default or
Potential Event of Default has occurred and is continuing hereunder.
(b) Quarterly Financial Statements. The Borrower shall deliver to the Agent and
each Lender, as soon as available but within 45 days following the end of each
of the Borrower's Fiscal Quarters, internally prepared consolidated and
consolidating financial statements of the Borrower and its Consolidated
Subsidiaries (including a balance sheet (d)(ii) is set forth solely to determine
the rights and priorities of the Agent and the Lenders as among themselves. The
order the Required Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person. The order acceptable to the
Agent, relating to the Borrower and its Consolidated Subsidiaries as the Agent
shall reasonably request, and (iii) a statement computing the ratio of Funded
Debt to EBITDA pursuant to Section 6.1(e) hereof, demonstrating that the
Borrower and its Consolidated Subsidiaries shall have not suffered a net loss
pursuant to Section 6.1(f) hereof and computing the Fixed Charge Coverage Ratio
pursuant to Section 6.1(g) hereof, in each case as of the end of such Fiscal
Quarter. The financial statements and reports required to be delivered under
this clause (b) shall be accompanied by a certificate of an Authorized Officer
of the Borrower to the effect that the information contained therein is true and
accurate as of the date of such certificate, that the Borrower and the other
Credit Parties are in compliance with all covenants contained in this Agreement
(including the financial ratios contained in this Section 6.1) and the other
Credit Documents and that no Event of Default or Potential Event of Default has
occurred and is continuing hereunder.
(c) Exchange Act and Securities Act Filings. The Borrower shall deliver to each
Lender and the Agent, within 5 days following the filing with the SEC, copies of
all filings by it or any of its Subsidiaries under the Exchange Act (including
reports on Forms 10-Q, 10-K and 8-K) and registration statements filed with the
SEC under either the Securities Act or the Exchange Act. The Borrower shall
deliver to each Lender and the Agent copies of all of the Borrower's annual
reports and proxy statements and, at the request of such Lender, any other
shareholder communication.
(d) Tax Forms. From time to time, the Borrower shall cause each of its Foreign
Subsidiaries to cooperate with each Lender and shall execute and deliver to such
Lender in a timely manner such forms (including Internal Revenue Service Forms)
and certificates as such Lender shall reasonably request, in each case for the
purpose of confirming that such Lender is capable, under the provisions of any
applicable tax treaty concluded with the United States of America or any other
applicable law, of receiving payments of interest hereunder without deduction or
withholding of any tax. In the event that any such tax shall be required to be
withheld or deducted, the Borrower shall pay to such Lender an amount that would
fully indemnify such Lender for such withheld or deducted amount.
(e) Funded Debt to EBITDA Ratio. The Borrower and its Consolidated Subsidiaries,
taken as a whole, shall maintain, for (and at all times during) each Fiscal
Quarter beginning with the Fiscal Quarter ended September 30, 1998 (the "Initial
Fiscal Quarter"), a ratio of Funded Debt to EBITDA of not greater than 3.00 to
1.00. The ratio contemplated by this clause (e) shall be computed on the basis
of a rolling four quarter period and shall include the results of operations for
the Fiscal Quarter for which such ratio shall be determined plus the immediately
preceding three Fiscal Quarters; provided, however, that to the extent that any
Acquisition Party acquired in accordance with Section 6.2(e) hereof shall not
constitute a Subsidiary for a period falling within such rolling four quarters
at the time of the determination of this ratio, then EBITDA for the purposes of
this ratio shall include, for such rolling four quarter period as it relates to
such Acquisition Party, (i) the pro forma EBITDA of such Acquisition Party for
that portion of the rolling four quarter period during which such Acquisition
Party was not a Subsidiary of the Borrower, and (ii) the actual EBITDA of such
Acquisition Party for that portion of the rolling four quarter period during
which such Acquisition Party constitutes a Subsidiary of the Borrower. For the
purposes of illustration of the proviso to the preceding sentence, if an
Acquisition Party is acquired on March 31, 2000 and the ratio contemplated by
this clause (e) shall be determined for the period ending June 30, 2000, then
such Acquisition Party's pro forma EBITDA as it existed prior to the acquisition
for the quarters ending September 30, 1999, December 31, 1999 and March 31,
2000, together with such Acquisition Party's actual EBITDA as a Subsidiary of
the Borrower for the quarter ending June 30, 2000, shall be taken into account
for the purposes of calculating this ratio.
(f) No Net Loss. The Borrower and its Consolidated Subsidiaries, taken as a
whole, shall not suffer a net loss (before (i) extraordinary gains and (ii)
non-cash, non-recurring compensatory charges incurred in connection with
acquisitions) for any Fiscal Quarter.
(g) Fixed Charge Coverage Ratio. The Borrower and its Consolidated Subsidiaries,
taken as a whole, shall at all times maintain, for (and at all times during)
each Fiscal Quarter beginning with the Initial Fiscal Quarter, a ratio of
Consolidated Cash Flow to Consolidated Fixed Charges of not less than 2.00 to
1.00. The ratio contemplated by this clause (g) shall be computed on the basis
of a rolling four quarter period and shall include the results of operations for
Fiscal Quarter for which such ratio shall be determined plus the immediately
preceding three Fiscal Quarters; provided, however, that to the extent that any
Acquisition Party acquired in accordance with Section 6.2(e) hereof shall not
constitute a Subsidiary for a period falling within such rolling four quarters
at the time of the determination of this ratio, then Consolidated Cash Flow for
the purposes of this ratio shall include, for such rolling four quarter period
as it relates to such Acquisition Party, (i) the pro forma Cash Flow of such
Acquisition Party for that portion of the rolling four quarter period during
which such Acquisition Party was not a Subsidiary of the Borrower, and (ii) the
actual Cash Flow of such Acquisition Party for that portion of the rolling four
quarter period during which such Acquisition Party constitutes a Subsidiary of
the Borrower. For the purposes of illustration of the proviso to the preceding
sentence, if an Acquisition Party is acquired on March 31, 2000 and the ratio
contemplated by this clause (g) shall be determined for the period ending June
30, 2000, then such Acquisition Party's pro forma Cash Flow as it existed prior
to the acquisition for the quarters ending September 30, 1999, December 31, 1999
and March 31, 2000, together with such Acquisition Party's actual Cash Flow as a
Subsidiary of the Borrower for the quarter ending June 30, 2000, shall be taken
into account for the purposes of calculating this ratio.
(h) Proceeds. The Borrower shall use the proceeds of the Revolving Loans, the
Swing Line Loans and the Standby Letters of Credit for the Permitted Uses and
for no other purpose.
(i) Payment of Debts and Taxes. The Borrower and its Subsidiaries shall pay all
debts, liabilities, taxes, assessments and other governmental charges when due
in the ordinary course; provided, however, that no such debt, liability, tax,
assessment or other governmental charge need be paid if such is being contested
in good faith by appropriate legal proceedings promptly initiated and diligently
conducted and if such reserves or other appropriate provision, if any, as shall
be required by GAAP shall have been made therefor.
(j) Conduct of Business. The Borrower and its Subsidiaries shall continue to
engage in business of the same general type as now conducted by the Borrower or
such Subsidiary. The Borrower and its Subsidiaries will conduct and manage their
respective business and affairs in the ordinary course, and shall take all steps
necessary and reasonable for the purpose of preserving the value of their
respective business and assets.
(k) Preservation of Corporate Existence. Except as otherwise permitted pursuant
to Section 6.2(e) hereof, the Borrower and its Subsidiaries shall at all times
preserve and keep in full force and effect their respective corporate existence
and their respective rights, privileges, licenses and franchises which are
necessary in the normal conduct of their business.
(l) Books and Records. The Borrower and its Subsidiaries shall at all times keep
and maintain complete and accurate books, accounts and records of its operations
and affairs in accordance with customary and sound business practices, and shall
permit each Lender and the Agent and their respective officers, employees,
agents and representatives to, from time to time upon reasonable notice and
during normal business hours, have access to its place of business, examine such
books, accounts and records and make copies thereof (at such Lender's and the
Agent's expense unless an Event of Default has occurred and is continuing) and
discuss of Default" shall have occurred and be continuing, the Lenders and the
Agent and their respective representatives and advisors shall be permitted to
conduct more than one such examination and audit during any annual period, as
requested by the Lenders, and the costs and expenses of such additional
examinations and audits shall be for the account of the Borrower.
(m) Insurance. The Borrower and its Subsidiaries shall carry or cause to be
carried in full force and effect, with financially sound and reputable insurance
companies and in amounts reasonably satisfactory to the Bank, policies of
insurance on all their property and general liability insurance in such amounts
and covering such risks as is consistent with sound business practice for
companies similarly situated and in the same or similar businesses. Any
insurance may be subject to deductibility or similar clauses which, in effect,
result in self-insurance of certain losses, provided that such self-insurance
under the insurance referred to above is in accord with the general practices of
companies similarly situated and adequate insurance reserves are maintained in
connection with such self-insurance. Any policies of insurance carried in
accordance with this Section 6.1(m) and any policies taken out in substitution
or replacement for any such policies shall (i) in the case of insurance against
loss or damage to property of the Borrower or its Subsidiaries, name the Agent
as loss payee (the "Loss Payee"), (ii) in the case of public liability
insurance, name the Agent as additional insured (the "Additional Insured"),
(iii) provide that in the case of any policies that contain any condition,
warranty or declaration (other than the failure to pay premiums) which, if
breached or violated prior to a loss, would void the insurance or allow the
underwriters to avoid liability under the policy, the insurance under such
policies shall not be invalidated, in respect to the respective interests of the
Loss Payee and the Additional Insured in such insurance, by any action or
inaction of the Borrower or its Subsidiaries, and shall insure the Loss Payee's
and the Additional Insured's interests, regardless of any breach or violation of
any warranty, declaration or condition contained in such policies by the
Borrower or any of its Subsidiaries, (iv) provide that, if such insurance is
cancelled for any reason whatsoever, or any substantial change is made in the
policy which affects the coverage certified to the Agent, or if such insurance
is allowed to lapse for nonpayment of premium, such cancellation, change or
lapse shall not be effective as to the Loss Payee and the Additional Insured for
30 days after receipt by the Agent of written notice from such insurer of such
cancellation, change or lapse, (v) provide that neither the Loss Payee nor the
Additional Insured shall have any obligation or liability for premiums,
commissions, assessments or calls in connection with such insurance, (vi)
provide that the insurers waive (A) any rights to set-off, counterclaims or any
other deduction, whether by attachment or otherwise, which they may have against
the Loss Payee or the Additional Insured, and (B) any rights of subrogation
against the Loss Payee or any Additional Insured, (vii) be primary without right
of contribution from any other insurance which may be carried by the Loss Payee
or any Additional Insured, and (viii) in the case of public liability policies,
provide that all provisions of such insurance, except the limits of liability
(which shall be borne solely by the Borrower) shall operate in the same manner
as if there were a separate policy covering each named insured. The Borrower
will furnish to the Agent upon request full information as to all insurance
carried by the Borrower or any Subsidiary.
(n) Compliance with Laws. The Borrower and its Subsidiaries shall comply with
all applicable laws, rules, regulations and orders of any governmental or
regulatory body or authority, a breach of which could have a material adverse
effect on the financial condition or business of the Borrower and its
Subsidiaries taken as a whole.
(o) Lending Relationship with the Agent. The Borrower shall maintain its
principal banking relationship with the Agent and shall maintain with the Agent
the Borrower Account.
(p) Borrower Ownership of Subsidiaries. The Borrower will, at all times, either
directly or indirectly own all of the outstanding shares of each class of
capital stock (or other equity interests) of each Subsidiary thereof; provided,
however, that (i) as of the date hereof in the case of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Services
(India) Ltd., the Borrower may own, directly or indirectly, not less than 74% of
such capital stock (or other equity interests) thereof and (ii) in the case of
any Foreign Subsidiary of the Borrower, not more than 5% of the capital stock
(or other equity interests) of such Foreign Subsidiary may be owned by directors
of such Foreign Subsidiary. So long as any Obligation remains outstanding, the
Borrower shall continue to consolidate the accounts of each its Foreign and
Domestic Subsidiaries on the consolidated financial statements of the Borrower.
(q) Notice of Default. The Borrower shall, promptly after becoming aware
thereof, deliver to each Lender and the Agent notice of any Event of Default and
Potential Event of Default, and such notice shall contain an express reference
to this Agreement and that such notice is a "notice of an Event of Default" or
"notice of Potential Event of Default," as the case may be.
(r) Notice of Environmental Claims. The Borrower shall deliver to each Lender
and the Agent a copy of any notice or other communication (i) alleging any
violation by the Borrower or its Subsidiaries of any laws or regulations
concerning the discharge of substances into the environment and other
environmental control matters or (ii) under which the Borrower or its
Subsidiaries shall admit to any such violation. Each copy of any such notice
shall be delivered to the Lenders and the Agent promptly following the receipt
or issuance thereof by the Borrower or such Subsidiary.
(s) Seniority. Under applicable laws in force from time to time, the claims and
rights of the Lenders and the Agent against each Credit Party under the Credit
Documents will not be subordinate to, and will rank senior in right of payment
to, the claims and rights of each other creditor of each Credit Party.
(t) Year 2000 Compliance. The Borrower will promptly notify the Agent in the
event the Borrower discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant on a
timely basis, except to the extent that such failure could not reasonably be
expected to have a material adverse effect upon the Borrower or such Subsidiary
taken as a whole.
(u) Maximum Available Amount. The Total Outstanding Amount shall not at any
time exceed the Maximum Available Amount.
(v) Pledge of Stock of Foreign Subsidiaries. (i) Upon the occurrence of any
Triggering Event pursuant to clause (a) thereof or (ii) at the written request
of the Agent to the Borrower upon the occurrence of any Triggering Event
pursuant to clause (b) or (c) thereof, the Borrower shall pledge or cause its
Subsidiary to pledge, as the case may be, within five (5) Business Days of the
occurrence of such Triggering Event or the Agent's request, as the case may be,
sixty-five percent (65%) of the outstanding shares of capital stock (or other
equity interests) of each Foreign Subsidiary as to which such Triggering Event
relates pursuant to one or more Pledge Agreements in favor of the Agent and for
the ratable benefit of the Lenders, which Pledge Agreements shall be accompanied
by such resolutions, incumbency certificates, stock powers and legal opinions as
are reasonably requested by the Agent and its counsel; provided, however, (A)
that if a Triggering Event pursuant to clause (b) thereof shall have occurred,
the Borrower shall, at the written request of the Agent, pledge or cause to be
pledged to the Agent sixty-five percent (65%) of the outstanding shares of
capital stock (or other equity interests) of such Foreign Subsidiaries which,
after giving effect to the pledge thereof, will result in Agent having a pledge
of such shares in respect of Foreign Subsidiaries of the Borrower selected by
the Agent whose revenues or profits comprise at least eighty percent (80%) of
the revenues or profits of all Foreign Subsidiaries of the Borrower, and (B)
that if a Triggering Event pursuant to clause (c) thereof shall have occurred,
the Borrower shall, at the written request of the Agent, pledge or cause to be
pledged to the Agent sixty-five percent (65%) of the outstanding shares of
capital stock (or other equity interests) of all Foreign Subsidiaries of the
Borrower.
(w) Execution of Subsidiary Security Agreements After the Effective Date. With
respect to each Domestic Subsidiary of the Borrower not a party to a Subsidiary
Security Agreement, at the written request of the Agent at any time following
the occurrence and continuance of an Event of Default or such Domestic
Subsidiary constituting a Material Domestic Subsidiary, the Borrower shall from
time to time cause each Domestic Subsidiary identified in the Agent's request to
execute and deliver in favor of the Agent, for the ratable benefit of the
Lenders, a Subsidiary Security Agreement not later than five (5) Business Days
following such request, which Subsidiary Security Agreement shall be accompanied
by such resolutions, incumbency certificates, financing statements (and other
documents or instruments as shall be reasonably required to perfect the security
interest created thereby) and legal opinions as are reasonably requested by the
Agent and its counsel.
Section 6.02. Negative Covenants. TC "Section 6.2Negative Covenants." \f C \l
"2" The Borrower covenants and agrees for itself and its Subsidiaries (in which
case the Borrower shall cause such Subsidiaries to take or refrain from taking
the actions described below), that, so long as this Agreement shall remain in
effect or any Obligation shall remain unpaid:
(x) Liens. The Borrower and its Subsidiaries shall not, directly or indirectly,
create, incur, assume, grant, pledge or permit to exist any Lien on the property
or assets of the Borrower and its Subsidiaries, taken as a whole, whether now
owned or hereafter acquired, or any income or profits therefrom, other than:
(i) any Lien (other than a Lien arising out of a purchase
money security interest) which, together with all such other similar
Liens, are no greater than $250,000;
(ii) any Lien which shall constitute a purchase money security
interest (excluding, for the purpose of this clause (ii), any purchase
money security interest Lien assumed in connection with the acquisition
of any Acquisition Party) which, together with all such other similar
Liens, are no greater than $1,000,000;
(iii) any Lien which shall constitute a purchase money
security interest and that is assumed in connection with the
acquisition of any Acquisition Party which, together with all such
other Liens, are no greater than $4,000,000.00 less the amount of all
unsecured indebtedness assumed, and all unsecured promissory notes (or
similar instruments) issued, by the Borrower or any Subsidiary thereof
in connection with the acquisition of any Acquisition Party permitted
hereunder; and
(iv) the Liens granted by or created under the Credit
Documents.
(b) Indebtedness. Neither the Borrower nor its Subsidiaries shall, directly or
indirectly, create, incur or assume, or otherwise become or remain directly or
indirectly liable with respect to, any indebtedness (including any
Indebtedness), other than:
(i) the Indebtedness incurred by the Borrower hereunder and
evidenced by the Revolving Notes, and the Swing Line Note and the
Indebtedness of the Guarantors under the Subsidiary Guarantee;
(ii) trade debt, operating leases, accounts payable and other
similar indebtedness incurred in the ordinary course of the Borrower's
or its Subsidiaries' business;
(iii) the Indebtedness evidenced by the Standby Letters of
Credit, if any, issued by the Issuing Lender in accordance with Section
2.3 hereof;
(iv) indebtedness of the type described in clause (ii) of
Section 6.2(a) which does not exceed (in the aggregate and as to the
Borrower and its Subsidiaries, taken as a whole) the amount set forth
in clause (ii) of Section 6.2(a);
(v) any guarantee, suretyship agreement or other similar
arrangement entered into by the Borrower or any Guarantor effecting the
assumption or guarantee of a debt or obligation of or the endorsement
of any promissory note or other instrument or obligation of, any
Guarantor or the Borrower, in each case provided the underlying
obligation so guaranteed is entered into in the ordinary course of the
Borrower's or such Guarantor's business and is necessary and beneficial
in connection with the operation thereof;
(vi) the indebtedness described on Schedule 6.2(b) hereof;
(vii) indebtedness of the type described in clause (iii) of
Section 6.2(a) hereof which does not exceed (in the aggregate and as to
the Borrower and its Subsidiaries, taken as a whole) $4,000,000.00 less
the amount of all unsecured indebtedness assumed, and all unsecured
promissory notes (or similar instruments) issued, by the Borrower or
any Subsidiary thereof in connection with the acquisition of any
Acquisition Party permitted hereunder; and
(viii) unsecured indebtedness assumed, and all unsecured
promissory notes (or similar instruments) issued, by the Borrower or
any Subsidiary thereof in connection with the acquisition of any
Acquisition Party permitted hereunder provided all such unsecured
indebtedness and unsecured promissory notes (or similar instruments) do
not exceed $4,000,000 less all purchase money security indebtedness
assumed by the Borrower or any Subsidiary thereof in connection with
the acquisition of any Acquisition Party permitted hereunder.
(c) Capital Stock. Without the prior written consent of the Required Lenders,
neither the Borrower nor any Subsidiary thereof shall, directly or indirectly,
repurchase, redeem or retire any of their capital stock, create new classes of
capital stock, issue any capital stock or Equity Rights in respect thereof,
declare or pay any dividends (whether in cash or property) on their capital
stock, except that the Borrower may:
(i) repurchase from time to time the capital stock of the
Borrower provided such repurchases do not, throughout the term of this
Agreement, exceed in the aggregate $5,000,000 and, provided further,
that after giving effect to any such repurchase, the Borrower shall be
in compliance with all provisions of this Agreement (including, without
limitation, all financial ratios contained in Section 6.1 hereof based
on the financial statements most recently provided by the Borrower to
the Lenders);
(ii) any Subsidiary of the Borrower may declare and pay
dividends or make other distributions on its capital stock provided the
proceeds thereof are received by the Borrower or any Guarantor;
(iii) issue securities authorized under stock incentive plans
described in the Borrower's Form 10-K or Proxy Statement; and
(iv) issue shares of common stock of the Borrower at fair
market value (or an average fair market value as determined by
reference to not more than a 30-day period prior to the date of
issuance of such common stock) pursuant to any registration statement
filed under the Securities Act or an exemption therefrom, except as
otherwise contemplated by clause (iii) above.
(d) Loan. Neither the Borrower nor any Subsidiary thereof shall, directly or
indirectly, make any loans or advances to any corporate officers or directors,
or any employees, or any insiders or affiliates (as defined in the Exchange Act)
or to any Subsidiary of the Borrower not a party to the Subsidiary Guarantee or
to any other Person, other than:
(i) travel, relocation and other salary advances made in the
ordinary course of the Borrower's or its Subsidiaries' business;
(ii) loans of the proceeds of the Revolving Loans and the
Swing Line Loans to any Domestic Subsidiary of the Borrower that is not
a party to the Subsidiary Guarantee for the purpose of financing the
acquisition of any Acquisition Party as contemplated by, and in
accordance with the limitations contained in, Section 6.2(e) hereof
(provided such Subsidiary shall have become a party to the Subsidiary
Guarantee in accordance with Section 6.2(g) hereof);
(iii) loans to any officer of the Borrower; provided that the
aggregate amount of all loans made pursuant to this clause and
outstanding from time to time shall not exceed $1,000,000.00;
(iv) loans to any Foreign Subsidiary of the Borrower if such
loans, together with all such other Foreign Subsidiary loans by the
Borrower and all other advances made by the Borrower to any Foreign
Subsidiary pursuant to Section 6.2(g) hereof, do not at any time exceed
$8,000,000.00; and
(v) loans or advances to any domestic joint venture company in
which the Borrower or any Subsidiary thereof owns at least one-third of
the equity interests therein provided the aggregate amount of all such
loans does not exceed $5,000,000.00.
(e) No Merger or Acquisition. Without the prior written consent of the Required
Lenders, neither the Borrower nor any Subsidiary thereof shall acquire, whether
by stock or asset purchase, merger, consolidation or other business combination,
any corporation, partnership, joint venture or other business organization (any
such entity, an "Acquisition Party"); provided, however, that the Borrower or
any direct or indirect Consolidated Subsidiary thereof may acquire, either by
way of stock or asset acquisition, merger, consolidation or otherwise, one or
more Acquisition Parties involved in a line of business similar to the line of
business of the Borrower if:
(i) the cash component of the Acquisition Consideration (which
shall consist of all cash, cash equivalents, promissory notes (or other
similar instruments) issued and the assumption of debt, as provided
therein) paid for all Acquisition Parties (including foreign
Acquisition Parties permitted pursuant to clause (vi) below) (A) during
the 12-month period commencing from the Effective Date shall not
exceed, in the aggregate, $40,000,000.00, and (B) during the period
commencing from the Effective Date and ending on the date on which all
of the Obligations hereunder shall have been paid in full shall not
exceed, in the aggregate, $50,000,000.00;
(ii) the cash component of the Acquisition Consideration
(which shall consist of all cash, cash equivalents, promissory notes
(or other similar instruments) issued and the assumption of debt, as
provided therein) paid for any individual Acquisition Party (whether in
one transaction or a series of related transactions) shall not exceed
$10,000,000.00;
(iii) the corporate headquarters of such Acquisition Party
shall be located in the continental United States of America unless
such Acquisition Party is a foreign Person and the acquisition thereof
is permitted by the terms of this Agreement;
(iv) such Acquisition Party's EBITDA shall, for the 12-month
period immediately preceding the acquisition of such Acquisition Party,
be greater than $0.00;
(v) the Borrower and its Subsidiaries shall, after giving
effect to the acquisition of any such Acquisition Party as provided
herein, be in compliance with all of the terms of this Agreement
including the financial covenants described in Sections 6.1(e), 6.1(f)
and 6.1(g) hereof, as determined on a pro-forma basis;
(vi) such acquisition, merger, consolidation (or otherwise) is
not hostile or pursued by way of tender offer, proxy contest or other
contested manner (unless the Required Lenders shall have waived in
writing compliance with this clause (vi));
(vii) during the term of this Agreement, Acquisition Parties
that are not organized under the laws of a state of the United States
of America or the District of Columbia may not be so acquired except to
the extent that the cash component of Acquisition Consideration (which
shall consist of all cash, cash equivalents, promissory notes (or other
similar instruments) issued and the assumption of debt, as provided
therein) paid for all such Acquisition Parties does not exceed
$8,000,000.00 (it being understood and agreed that such $8,000,000.00
shall at any time of determination be reduced by the amount of any loan
or advance made by the Borrower to any Foreign Subsidiary as permitted
by the provisions of Sections 6.2(d)(iv) and 6.2(g) hereof,
respectively);
(viii) such Acquisition Party shall have become a party to the
Subsidiary Guarantee pursuant to an instrument in writing satisfactory
to the Agent (unless such Acquisition Party shall, after giving effect
to the acquisition thereof, (A) constitute a Foreign Subsidiary, in
which case the entity acquiring the capital stock or other equity
interests of such Acquisition Party shall pledge to the Agent for the
benefit of the Lenders, pursuant to a pledge agreement satisfactory to
the Agent, not more than 65% of the issued and outstanding shares of
capital stock or other equity interests of such Acquisition Party to
the extent required by Section 6.1(v) hereof or (B) not constitute a
Material Domestic Subsidiary); and
(ix) five (5) Business Days prior to consummation thereof, the
Borrower shall have delivered to the Agent (which shall promptly
deliver a copy to the Lenders) a certificate, executed by an Authorized
Officer of the Borrower, demonstrating in sufficient detail compliance
with the financial covenants contained in this Section 6.2(e) and,
further, certifying that, after giving effect to the consummation of
such acquisition, merger, consolidation (or otherwise), the
representations and warranties of the Borrower contained herein will be
true and correct and that the Borrower, as of the date of such
consummation, will be in compliance with all other terms and conditions
contained herein.
Notwithstanding anything to the contrary contained in this Section 6.2(e), any
Subsidiary of the Borrower may merge with and into or consolidate with the
Borrower or any other Subsidiary of the Borrower, or the Borrower may cause the
dissolution or liquidation of any of its Subsidiaries; provided, that, after
giving effect to such merger, consolidation, dissolution or liquidation, (w) in
the case of any merger or consolidation with the Borrower, the Borrower shall be
the surviving entity, (x) in the case of any merger or consolidation of any
Subsidiary of the Borrower with any other such Subsidiary, the surviving entity
resulting therefrom shall have succeeded, by operation of law, contract or
otherwise, to all of the rights, properties, both real and personal, privileges
and franchises of the disappearing Subsidiary, (y) in the event such merged or
consolidated Subsidiary shall be a party to any Credit Document, the surviving
Subsidiary resulting from such merger or consolidation shall, by operation or
law, contract or otherwise and, at the request of any Lender, pursuant to an
agreement in writing, be bound by the agreements, covenants and other provisions
contained in each such Credit Document. to which the disappearing Subsidiary was
a party, and (z) in the event of the dissolution or liquidation of a Subsidiary,
the rights, properties, both real and personal, privileges and franchises
thereof shall be distributed or otherwise conveyed and transferred to the
Borrower or another Domestic Subsidiary thereof (unless the dissolved or
liquidating Subsidiary is a Foreign Subsidiary, in which case such rights,
properties, both real and personal, privileges and franchises may be distributed
or otherwise conveyed and transferred to another Foreign Subsidiary of the
Borrower).
(f) Fiscal Year. The Borrower and its Subsidiaries shall not, without the prior
written consent of the Required Lenders, make any material change in accounting
policies or reporting practices, including a change in their Fiscal Year.
(g) Advances to Subsidiaries and Affiliates. The Borrower shall not, without the
prior written consent of the Required Lenders, make any advances (either
directly or indirectly), whether such advances are made from the proceeds of the
Revolving Loans or Swing Line Loans or Standby Letters of Credit or otherwise,
to any of its Subsidiaries or Affiliates not a party to the Subsidiary Guarantee
unless such Subsidiary or Affiliate shall have entered into an agreement or
instrument (in form and substance acceptable to the Required Lenders) pursuant
to which such Subsidiary or Affiliate shall have agreed to be bound by all of
the terms, conditions, covenants and agreements contained in the Subsidiary
Guarantee and such Subsidiary or Affiliate shall have delivered such documents,
certificates and opinions as any Lender may reasonably request to implement such
agreement or instrument; provided, however, that the Borrower may make advances
to any Foreign Subsidiary without such Foreign Subsidiary being a party to the
Subsidiary Guarantee so long as the aggregate amount of all such advances to
such Foreign Subsidiaries, together with all loans made to such Foreign
Subsidiaries, do not exceed at any time $8,000,000.00; and, provided, further,
that the Borrower may make loans or advances to any joint venture in which the
Borrower or any Subsidiary thereof owns at least one-third of the equity
interests to the extent permitted by Section 6.2(d)(v) hereof. (h) Creation of
Subsidiaries. Neither the Borrower nor any Subsidiary thereof shall create or
cause to be formed any Subsidiary without the consent of the Required Lenders
unless such Subsidiary is a Consolidated Subsidiary of the Borrower and agrees
to be bound by the terms and conditions of the Subsidiary Guarantee pursuant to
an agreement of the type and to the extent described in clause (g) of this
Section 6.2 or such Subsidiary does not constitute a Material Domestic
Subsidiary; provided, however, that no Foreign Subsidiary so created or formed
shall be required to be a party to the Subsidiary Guarantee except to the extent
required by Sections 6.2(e)(viii) and 6.2(g) hereof.
(i) Disposition of Assets. Neither the Borrower nor any Subsidiary thereof
shall, without the prior written consent of the Required Lenders, sell, transfer
or otherwise dispose of (including by way of a sale and leaseback transaction)
any of its assets (whether real or personal) other than (i) in the ordinary and
usual course of its business for fair value in arm's-length transactions and, so
long as no Event of Default or Potential Event of Default has occurred and is
continuing, dispositions in a commercially reasonable manner of equipment which
has become redundant, worn out or obsolete or which should be replaced so as to
improve productivity, so long as the proceeds of any such disposition are (A)
used to acquire replacement equipment which has comparable or better utility and
equivalent or better value or (B) applied to repay the Obligations, and (ii) as
otherwise permitted by any other Credit Document.
(j) Permitted Investments. Neither the Borrower nor any Subsidiary thereof
shall, without the prior written consent of the Required Lenders, make any
investment in any security (whether consisting of debt or equity or a
partnership, limited liability company or other interest) or like instrument
except for Permitted Investments (it being understood and agreed that this
clause (j) shall not prohibit the acquisition of the securities of any
Acquisition Party to the extent permitted by the provisions of Section 6.2(e)
hereof).
ARTICLE VII.
EVENTS OF DEFAULT
Section 7.01. Events of Default. TC "Section 7.1 Events of Default." \f C \l "2"
If one or more of the following events or conditions (each, an "Event of
Default") shall occur and be continuing, that is to say:
(a) the Borrower defaults in the payment of principal of any Revolving Note when
due, or any Guarantor defaults in the observance or performance of any agreement
contained in Section 2 of the Subsidiary Guarantee; or
(b) the Borrower defaults in the payment of interest on any Revolving Loan or
Swing Line Loan, or of the Unused Portion Fee, the L/C Fee, the Administrative
Fee or of any other fee, expense or other amount payable hereunder after the
same becomes due and payable for more than two (2) Business Days after notice
thereof has been given by the Agent to the Borrower (which notice may be
telephonic); or
(c) the Borrower or any Subsidiary thereof defaults in any payment of principal
of or interest on, or fees and expenses relating to any other obligation for
borrowed money beyond any period of grace provided with respect thereto or in
the performance of any other agreement, term or condition contained in any
instrument or agreement evidencing, securing, guaranteeing or otherwise relating
to any such obligation and shall not have cured such default within any period
of grace provided by such agreement and such obligation, either individually or
in the aggregate, is for an amount in excess of $100,000.00; or
(d) any written representation or warranty made by any Credit Party in or
pursuant to this Agreement or any other Credit Document or in any other
documents, certificates, financial statements or reports furnished by any Credit
Party in connection with the transactions contemplated hereby shall prove to
have been false or misleading in any material respect as of the time made or
furnished; or
(e) the Borrower shall default in the performance or observance of any covenant,
condition or agreement contained in clause (c), (d), (i), (j), (k), (l), (m),
(r), (s) or (t) of Section 6.1 and such default shall remain unremedied for more
than ten (10) Business Days, or (ii) the Borrower shall default in the
performance or observance of any other covenant, condition or agreement
contained in Section 6.1 or any covenant, condition or agreement contained in
Section 6.2; or
(f) the Borrower shall default in the performance or observance of any other
covenant, condition or provision hereof or in any other Credit Document or any
other Credit Party shall default in the performance or observance of any
covenant, condition or provision in any other Credit Document (other than the
Subsidiary Guarantee) or any Guarantor shall default in the performance or
observance of any covenant, condition or provision in the Subsidiary Guarantee
(other than Section 2 thereof, as to which clause (a) of this Section 7.1
relates), as the case may be, and such default shall not be remedied within
thirty (30) days after written notice thereof is received by the Borrower or any
other Credit Party, as the case may be, from any Lender or the Agent; or
(g) a proceeding (other than a proceeding commenced by the Borrower or any
Subsidiary thereof, as the case may be) shall have been instituted in a court
having jurisdiction in the premises seeking a decree or order for relief in
respect of the Borrower or such Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Borrower or such Subsidiary
or for any substantial part of its total assets, or for the winding-up or
liquidation of its affairs and such proceedings shall remain undismissed or
unstayed and in effect for a period of thirty (30) consecutive days or such
court shall enter a decree or order granting the relief sought in such
proceeding; or
(h) the Borrower or any Subsidiary thereof, as the case may be, shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for relief in
an involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or such Subsidiary or
for any substantial part of its total assets, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action in furtherance of any of the
foregoing; or
(i) a judgment or order shall be entered against the Borrower or any Subsidiary
thereof, by any court, and (i) in the case of a judgment or order for the
payment of money that has not been vacated, stayed or appealed (and bonded, if
required) within the time required by the terms of such judgment or order,
either (A) such judgment or order shall continue undischarged for a period of
fifteen (15) days in which the aggregate amount of all such judgments and orders
exceeds $100,000 or (B) enforcement proceedings shall have been commenced upon
such judgment or order, and (ii) in the case of any judgment or order for other
than the payment of money, such judgment or order could, in the reasonable
judgment of any Lender, together with all other such judgments or orders, have a
materially adverse effect on the Borrower and its Subsidiaries taken as a whole;
or
(j) the occurrence of a material adverse change in the financial condition,
properties, assets or results of operations of the Borrower and its Consolidated
Subsidiaries, taken as a whole; or
(k) any Termination Event shall occur with respect to any Benefit Plan, (ii) any
Accumulated Funding Deficiency, whether or not waived, shall exist with respect
to any Benefit Plan, (iii) any Person shall engage in any Prohibited Transaction
involving any Benefit Plan, (iv) the Borrower or any ERISA Affiliate shall be in
"default" (as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to a Multiemployer Plan as a result of the Borrower's or any ERISA
Affiliate's complete or partial withdrawal (as described in ERISA Section 4203
or 4205) from such Multiemployer Plan, (v) the Borrower or any ERISA Affiliate
shall fail to pay when due an amount that is payable by it to the Pension
Benefit Guaranty Corporation or to a Benefit Plan under Title IV of ERISA, or
(vi) a proceeding shall be instituted by a fiduciary of any Benefit Plan against
the Borrower or any ERISA Affiliate to enforce ERISA Section 515 and such
proceeding shall not have been dismissed within 30 days thereafter, except that
no event or condition referred to in clauses (i) through (vi) shall constitute
an Event of Default if it, together with all other such events or conditions at
the time existing, has not had, and in the reasonable determination of the
Required Lenders will not have, a materially adverse effect on the Borrower and
its Subsidiaries, taken as whole; or
(l) if (i) the Borrower or any Subsidiary thereof shall be suspended or debarred
from contracting with the United States Government and such suspension or
debarment shall not have been lifted within fifteen (15) Business Days after the
imposition thereof, or (ii) the United States Government shall have terminated
any contract to which the Borrower or any Subsidiary thereof is a party and such
termination would have a material adverse effect upon the financial condition or
prospects of the Borrower and its Consolidated Subsidiaries, taken as a whole;
(m) the occurrence of a Change in Control or a Potential Change in Control;
(n) the Borrower Security Agreement, any Subsidiary Security Agreement or any
Pledge Agreement shall cease for any reason to be in full force and effect,
shall cease to be effective to grant a perfected security interest in the
collateral pledged thereunder with the priority stated to be created thereby or
shall be declared null and void by any Governmental Body, or the validity or
enforceability thereof shall be contested by any party thereto (other than the
Agent or any Lender) or any Credit Party shall deny that it has any further
liability or obligation thereunder; or
(o) the Subsidiary Guaranty shall cease for any reason to be in full force and
effect or shall be declared null and void by any Governmental Body, or the
validity or enforceability thereof shall be contested by any Guarantor, or any
Guarantor shall deny that it has any further liability or obligation under the
Subsidiary Guaranty; or
(p) any creditor of any Credit Party shall obtain possession of any of the
collateral pledged by any Credit Party in favor of the Agent by any means,
including, without limitation, levy, distraint, replevin or self-help, or any
such creditor shall establish or obtain any right in such which is equal to or
senior to the security interests of the Agent in such collateral; or
(q) the Agent or any Lender shall allege in writing that one or more Events of
Default have occurred and the Borrower shall have failed, after 15 [Business
Days] notice thereof from the Agent or such Lender, to provide reasonably
satisfactory evidence to the Agent and the Lenders that such Events of Default
have not in fact occurred;
then, and upon any such event, the Agent, with the consent of the Required
Lenders, may (1) upon notice to the Borrower, declare the entire outstanding
principal amount, if any, of the Revolving Notes, the Swing Line Note, any and
all accrued and unpaid interest thereon, the aggregate amount outstanding under
all Standby Letters of Credit, any and all accrued and unpaid Unused Portion Fee
and L/C Fee, and any and all other amounts payable by the Borrower to the
Lenders or the Agent under this Agreement or the Revolving Notes or the Swing
Line Note to be forthwith due and payable, whereupon the entire outstanding
principal amount, if any, of the Revolving Notes or the Swing Line Note,
together with any and all accrued and unpaid interest thereon, the aggregate
amount outstanding under all Standby Letters of Credit, any and all accrued and
unpaid Unused Portion Fee and L/C Fee, and any and all other such amounts, shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of the entry of an order for
relief with respect to the Borrower or any of its Subsidiaries under the
Bankruptcy Code, any principal amount of the Revolving Notes and the Swing Line
Note then outstanding, together with any and all accrued and unpaid interest
thereon, the aggregate amount outstanding under all Standby Letters of Credit,
any and all accrued and unpaid Unused Portion Fee and L/C Fee, and any and all
such other amounts shall thereupon automatically become and be due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by the Borrower; (2) terminate or reduce the Revolving
Loan Commitment and the Swing Line Subfacility; and (3) exercise any rights and
remedies available to it under any Credit Document or under applicable laws,
including without limitation any rights and remedies of a secured party under
the Uniform Commercial Code in effect in the Commonwealth of Virginia and under
any other applicable laws.
ARTICLE VIII.
THE AGENT
Section 8.01. Appointment of Agent. TC "Section 8.1 Appointment of Agent."
\f C \l "2"
(a) Appointment Generally. Each of the Lenders hereby designates and appoints
NationsBank, N.A. as the Agent of such Lender under this Agreement and the other
Credit Documents, and each of the Lenders hereby irrevocably authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and the other Credit Documents and to exercise such powers as are set forth
herein and therein, together with such other powers as are incidental thereto.
The Agent agrees to act as such on the express conditions contained in this
Article VIII.
(b) Agent Acts for Lenders. The provisions of this Article VIII are solely for
the benefit of the Agent and the Lenders, and the Borrower shall have no right
(including as third party beneficiary) to rely on or enforce any of the
provisions hereof. In performing its functions and other duties under this
Agreement and the other Credit Documents, the Agent shall act solely as agent
for the Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Borrower or
any of its Affiliates.
Section 8.02. Nature of Duties; Non-Reliance on Agent and other Lenders. TC
"Section 8.2 Nature of Duties; Non-Reliance on Agent and other ▇▇▇▇▇▇▇." \▇
▇ \▇ "▇"
(▇) The Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement or in the other Credit Documents. The
duties of the Agent shall be mechanical and administrative in nature. The Agent
shall not have, by reason of this Agreement or any other Credit Document, a
fiduciary relationship in respect of any Lender and is not a trustee for the
Lenders. Nothing in this Agreement or any of the other Credit Documents,
expressed or implied, is intended to or shall be construed to impose upon the
Agent any obligations in respect of this Agreement or any of the other Credit
Documents except as expressly set forth herein and therein. If the Agent seeks
the consent or approval of the Lenders to the taking or refraining from taking
of any action hereunder, the Agent shall send notice thereof to each Lender. The
Agent shall promptly notify each Lender at any time the Required Lenders or all
of the Lenders, as the case may be, have instructed the Agent to act or refrain
from acting pursuant hereto. The Agent may execute any of its duties hereunder
or under any other Credit Document by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
(b) Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Agent or any
Affiliate thereof hereinafter taken, including any review of the affairs of the
Borrower or any Subsidiary thereof, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Revolving Loans and issue or participate in the issuance of Standby
Letters of Credit hereunder and enter into this Agreement and the other Credit
Documents to which it is a party. Each Lender covenants that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement or any other Credit Document to which it
is a party, and to make such investigations as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial and
other conditions, prospects or creditworthiness of the Borrower and its
Subsidiaries which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 8.03. Rights, Exculpation, Etc. TC "Section 8.3 Rights, Exculpation,
Etc." \f C \l "2" Neither the Agent nor any of its Affiliates nor any of their
respective officers, directors, employees, agents, attorneys or consultants
shall be liable to any Lender for any action taken or omitted by it or such
Person hereunder or under any of the other Credit Documents, or in connection
herewith or therewith, except that (i) the Agent shall be obligated on the terms
set forth herein for performance of its express obligations hereunder, and (ii)
neither the Agent nor any such other Person shall have any liability hereunder
or under any other Credit Document except to the extent arising out of its own
gross negligence or willful misconduct (as determined by the final judgment of a
court of competent jurisdiction). The Agent shall not be liable for any
apportionment or distribution of payments made by it in good faith pursuant to
the terms of this Agreement and if any such apportionment or distribution is
subsequently determined to have been made in error the sole recourse of any
Lender to whom payment was due, but not made, shall be to recover from other
Lenders any payment in excess of the amount to which they are determined to have
been entitled. The Agent shall not be responsible to any Lender for any
recitals, statements, representations or warranties made by the Borrower or any
Subsidiary thereof in this Agreement or in any other Credit Document or in any
other document, certificate, report or financial statement delivered by the
Borrower or any Subsidiary thereof in connection herewith or therewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Credit
Documents, or any of the transactions contemplated thereby, or for the financial
condition of the Borrower or any of its Subsidiaries. The Agent shall not be
required to make any inquiry concerning conditions of this Agreement or any of
the Credit Documents or the financial condition of the Borrower or its
Subsidiaries or the existence or possible existence of any Potential Event of
Default or Event of Default. The Agent may at any time request instructions from
the Lenders with respect to any actions or approvals which by the terms of this
Agreement or of any of the other Credit Documents the Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
the Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not incur any liability whatsoever to any Person
for refraining from any action or withholding any approval under any of the
Credit Documents until it shall have received such instructions from the
Required Lenders or, to the extent specifically provided herein, all the Lenders
or unless it shall first be indemnified by the Lenders against any and all
liability and expense which may be incurred by it by reason of refraining to
take any action or withholding any approval. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting under this Agreement or any of the
other Credit Documents in accordance with the instructions of the Required
Lenders or, to the extent specifically provided herein, all the Lenders, and
such instructions shall be binding upon all Lenders (including their successors
and assigns).
Section 8.04. Reliance; Notice of Default. TC "Section 8.4 Reliance; Notice
of ▇▇▇▇▇▇▇." \▇ ▇ \▇ "▇"
(▇) The Agent shall be entitled to rely upon any written notice, statement,
certificate, order, letter, cablegram, telegram, telecopy, telex or teletype
message, statement or other document or any telephone message believed by it in
good faith to be genuine and correct and to have been signed or made by the
proper Person, and with respect to all matters pertaining to this Agreement or
any of the other Credit Documents and its duties hereunder or thereunder, upon
advice of legal counsel (including counsel for any Credit Party), independent
public accountants and other experts selected by it with reasonable care. The
Agent may deem and treat each Lender as the owner of its interests hereunder for
all purposes unless and until the Agent shall have received a duly executed
instrument of assignment as contemplated by Section 9.8(c) hereof and the other
conditions to assignment, to the extent applicable, shall have been satisfied.
(b) The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Event of Default or Potential Event of Default unless the Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default or Potential Event of Default and stating that
such notice is a "notice of Event of Default" of "notice of Potential Event of
Default", as the case may be. The Agent shall take such action with respect to
such Event of Default or Potential Event of Default as shall be reasonably
directed by the Required Lenders.
Section 8.05. Indemnification. TC "Section 8.5 Indemnification." \f C \l "2" To
the extent that the Agent is not reimbursed and indemnified by the Borrower or
the Borrower fails upon demand by the Agent to perform its obligations to
reimburse or indemnify the Agent, the Lenders will severally reimburse and
indemnify the Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any of the other Credit Documents or any action taken or omitted by
the Agent under this Agreement or any of the other Credit Documents, in
proportion to each Lender's Pro Rata Share; provided, that no Lender shall be
liable for (i) any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct (as determined by the
final judgment of a court of competent jurisdiction) or (ii) the legal fees and
expenses incurred by the Agent in connection with the execution and delivery of
this Agreement and the other Credit Documents (to the extent not reimbursed by
the Borrower). The obligations of the Lenders under this Section 8.5 shall
survive the payment in full of the Revolving Loans and the termination of this
Agreement.
Section 8.06. The Agent Individually. TC "Section 8.6 The Agent Individually."
\f C \l "2" With respect to its Pro Rata Share hereunder and the Revolving
Loans, Standby Letters of Credit and any Swing Line Loan made by it, the Agent
shall have and may exercise the same rights and powers hereunder and is subject
to the same obligations and liabilities as and to the extent set forth herein
for any other Lender. The term "Lenders" or "Required Lenders" or any similar
terms shall, unless the context clearly otherwise indicates, include the Agent
in its individual capacity as a Lender. The Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrower and its Subsidiaries as if it were not
acting as Agent pursuant hereto.
Section 8.07. Successor Agent; Resignation of Agent. TC "Section 8.7
Successor Agent; Resignation of Agent." \f C \l "2"
(a) The Agent may resign from the performance of its functions and duties
hereunder at any time by giving at least thirty (30) days' prior written notice
to the Lenders and the Borrower. In the event that the Agent gives notice of its
desire to resign from the performance of its functions and duties as Agent, any
such resignation shall take effect only upon the acceptance by a successor Agent
of appointment pursuant to clause (b) or (c) below.
(b) The Required Lenders shall jointly appoint a successor Agent, which shall be
a Lender hereunder.
(c) If a successor Agent shall not have been so appointed within said twenty
(20) day period, the retiring Agent shall then appoint a successor Agent who
shall serve as Agent until such time, if any, as the Lenders appoint a successor
Agent as provided above, it being understood and agreed that any successor Agent
so appointed by the retiring Agent pursuant to this clause (c) need not be,
notwithstanding the provisions of clause (b) above, a Lender hereunder so long
as such successor Agent is a commercial bank organized under the laws of the
United States of America or of any State thereof or of the District of Columbia
and has a combined capital and surplus of at least $400,000,000.00.
Upon the appointment of a successor Agent, the term "Agent" shall, for all
purposes of this Agreement and the other Credit Documents, thereafter include
such successor Agent, the retiring Agent shall be discharged from its duties and
obligations as Agent, as appropriate, under this Agreement and the other Credit
Documents and the successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, except
that the retiring Agent shall reserve all rights as to obligations accrued or
due to it, in its capacity as such, at the time of such succession and all
rights (whenever arising) under Section 9.10 hereof.
Section 8.08. Certain Matters Requiring the Consent of all Lenders. TC "Section
8.8 Certain Matters Requiring the Consent of all Lenders." \f C \l "2" Subject
to the provisions of Section 8.9(ii) hereof, the consent of all the Lenders
shall be required for taking any of the following required or permitted actions
hereunder:
(i) any decrease or increase in any interest rate or margin
applicable to any Revolving Loan or Swing Line Loan or in any fee
payable hereunder, or change in the method of computing the interest
rate or margin applicable to any Revolving Loan or Swing Line Loan or
in any fee payable hereunder;
(ii) any change in the Maturity Date;
(iii) any increase in the Revolving Loan Commitment;
(iv) any change in the definition of Required Lenders;
(v) any assignment or delegation of the Borrower's Obligations and rights
hereunder;
(vi) any postponement of the date of payment of any principal,
interest or fees (other than any fee, if any, payable solely to the
Agent, which may be postponed or waived at the sole discretion of the
Agent) due hereunder;
(vii) the release of any collateral pledged by any Credit
Party under the Borrower Security Agreement, any Subsidiary Security
Agreement or any Pledge Agreement;
(viii) the release of any Guarantor from its obligations under the
Subsidiary Guarantee; and
(ix) any amendment, modification or waiver of this Section
8.8.
For the avoidance of doubt, all other actions, consents, waivers and amendments
permitted or required hereunder by the Lenders shall be by the Required Lenders
(unless such action, consent, waiver or amendment shall relate only to an
individual Lender, in which case such action may be taken by such Lender
individually).
Section 8.09. Defaulting Lenders Vote Not Counted. TC "Section 8.9 Defaulting
Lenders Vote Not Counted." \f C \l "2" Whenever the "Required Lenders" or "all
the Lenders" shall be required or permitted to take any action pursuant to the
provisions of any Credit Document, for so long as a Lender shall be in default
of its obligation to advance its Pro Rata Share of any Revolving Loan or, if
applicable, any Swing Line Loan or advance any other funds to the Agent or any
other Lender as required hereunder:
(i) until the earlier of the cure of such default and the
termination of the Revolving Loan Commitment, the term Required Lenders
for purposes of this Agreement shall mean Lenders (excluding all
Lenders whose default shall have not been cured) whose Pro Rata Shares
represent more than fifty percent (50%) of the aggregate Pro Rata
Shares of such Lenders; and
(ii) until the earlier of the cure of such default and the
termination of the Revolving Loan Commitment, the term "all the
Lenders" for purposes of this Agreement shall mean Lenders (excluding
all Lenders whose default shall have not been cured) whose Pro Rata
Shares represent one hundred percent (100%) of the aggregate Pro Rata
Shares of such Lenders.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Amendments and Waivers; Cumulative Remedies. TC "Section 9.1
Amendments and Waivers; Cumulative Remedies." \f C \l "2" No delay or failure of
any Lender or the Agent or the holder of any the Revolving Notes or the Swing
Line Note in exercising any right, power or privilege hereunder or under any
other Credit Document shall affect such right, power or privilege; nor shall any
single or partial exercise thereof or any abandonment or discontinuance of steps
to enforce such a right, power or privilege preclude any further exercise
thereof or of any other right, power or privilege. The rights and remedies of
any Lender or the Agent or any other holder of the Revolving Notes or the Swing
Line Note are cumulative and not exclusive of any rights or remedies which any
of them would otherwise have. Neither this Agreement or any other Credit
Document, nor any term, condition, representation, warranty, covenant or
agreement hereof or thereof, may be changed, waived, discharged or terminated
orally but only by an instrument in writing executed by the party against whom
such change, waiver, discharge or termination is sought. Any waiver, permit,
consent or approval of any kind or character (whether involving a breach,
default, provision, condition or term hereof or otherwise) on the part of any
Lender or the Agent or any other holder of any Revolving Note, the Swing Line
Note, or of the Borrower under this Agreement, or under any other Credit
Document shall be effective only in the specific instance and for the purpose
for which given and only to the extent set forth specifically in writing. No
notice or demand given hereunder shall entitle the recipient thereof to any
other or further notice or demand in similar or other circumstances.
Section 9.02. Survival of Representations and Warranties. TC "Section 9.2
Survival of Representations and Warranties." \f C \l "2" All representations,
warranties, covenants and agreements of the Borrower and the other Credit
Parties contained herein or made in writing in connection herewith shall survive
the execution and delivery of this Agreement and the other Credit Documents, the
making of Revolving Loans or Swing Line Loans hereunder and the issuance of the
Revolving Notes and the Swing Line Note.
Section 9.03. Supervening Illegality TC "Section 9.3 Supervening Illegality" \f
C \l "2" . If, after the date hereof, as the result of (i) the adoption of any
law, rule or regulation by any Governmental Body, (ii) any change in the
existing laws, rules and regulations of any Governmental Body, (iii) the
issuance of any order or decree by any Governmental Body, (iv) any change in the
interpretation or administration of any applicable law, rule, regulation, order
or decree by any Governmental Body (including any central bank or similar
agency) charged with the interpretations or administration thereof, or (v)
compliance by any Lender with any request or directive (whether or not having
the force of law) of any Governmental Body, it shall be unlawful or impossible
for such Lender to maintain or make any LIBOR Loan, then the obligation of such
Lender to maintain or make any LIBOR Loan or convert any ABR Loan to a LIBOR
Loan shall forthwith be cancelled and such Lender shall automatically convert
any outstanding LIBOR Loan to an ABR Loan. The Borrower shall pay to such
Lender, promptly upon demand, any additional amounts necessary to compensate
such Lender for any costs incurred by such Lender in making any conversion in
accordance with this Section 9.3 including, but not limited to, any interest or
fees payable by such Lender to lenders of funds obtained by it in order to make
or maintain the LIBOR Loans hereunder, and such Lender's notice to the Borrower
of such costs shall be conclusive and binding absent manifest error.
Section 9.04. No Reduction in Payments. TC "Section 9.4 No Reduction in
Payments." \f C \l "2" All payments due to the Lenders hereunder, and all other
terms, conditions, covenants and agreements to be observed and performed by the
Borrower hereunder, shall be made, observed or performed by the Borrower without
any reduction or deduction whatsoever, including any reduction or deduction for
any set-off, recoupment, counterclaim (whether sounding in tort, contract or
otherwise) or tax.
Section 9.05. Stamp Taxes. TC "Section 9.5 Stamp Taxes." \f C \l "2" The
Borrower, on behalf of itself and the other Credit Parties, agrees to pay, and
to save each Lender harmless from all liability for, any State or Federal stamp,
transfer, documentary or similar taxes, assessments or charges (herein "Stamp
Taxes"), and any penalties or interest with respect thereto, which may be
assessed, levied, collected or imposed by or upon such Lender, or otherwise
become payable by such Lender, in connection with the execution and delivery of
this Agreement or the other Credit Documents.
Section 9.06. Notices TC "Section 9.6 Notices" \f C \l "2" . Any notice,
statement, request or demand required or permitted hereunder to be in writing
may be given by telecopy, telex, cable or other customary means of electronic
communication or by registered or certified mail (return receipt requested) or
express courier, postage prepaid. All notices, statements, requests and demands
given to or made upon any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given or made(i) in the case of
telephonic notice (to the extent expressly permitted hereunder), when made, (ii)
in the case of notice delivered by overnight express courier, one Business Day
after the Business Day such notice was delivered to such courier, (iii) in the
case of notice delivered by first class mail, three Business Days after being
deposited in the mail, postage prepaid, return receipt requested, (iv) in the
case of notice by hand, when delivered, or (v) in the case of notice by any
customary means of telecommunication, when sent provided confirmation of receipt
or answer back has been received, in each case if addressed:
to the Borrower, to it at:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
to the Agent, to it at:
NationsBank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
and if to any Lender, to it at its
address specified opposite its name
on the signature pages hereto.
or such other address for notice as any party hereto may designate for itself in
a notice to the other party, except in cases where it is expressly provided
herein that such notice, statement, request or demand shall not be effective
until received by the party to whom it is addressed.
Section 9.07. Governing Law. TC "Section 9.7 Governing Law." \f C \l "2" THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS UNDER
THE LAWS OF THE COMMONWEALTH OF VIRGINIA AND, FOR ALL PURPOSES, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
VIRGINIA WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES.
Section 9.08. Successors and Assigns; Participations; Assignments. TC
"Section 9.8 Successors and Assigns; Participations; Assignments." \f C \l
"2"
(a) Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective permitted successors and
assigns of the parties hereto, provided that the Borrower may not assign or
transfer any of its interest hereunder without the prior written consent of all
the Lenders and the Agent.
(b) Participations. Any Lender may sell participation in all or any part of the
Revolving Loans made by it or its Commitment or any other interest herein or in
its Revolving Note or in any other document delivered or instrument delivered in
connection herewith to another bank or other entity. In the case of such
participation by a Lender, (i) the participant shall not have any rights under
this Agreement or the applicable Revolving Note or any other document or
instrument delivered in connection herewith (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto),
(ii) all amounts payable by the Borrower shall be determined as if such Lender
had not sold such participation and (iii) the Borrower shall continue to deal
directly with such Lender with respect to the transactions contemplated hereby.
(c) Assignments. Each Lender may assign any of its rights or interests under the
Credit Documents to one or more financial institutions, provided that:
(i) each such assignment shall be in an amount not less than
$10,000,000.00 (or such lesser amount if, after giving effect to such
assignment and all other assignments by such Lender occurring
substantially simultaneously therewith, such assigning Lender shall
hold no Commitment or any Revolving Loan or Swing Line Loan);
(ii) each such assignment by a Lender of its Commitment or
Revolving Loans or Swing Line Loans shall be made in such manner so
that the same portion of such Lender's Commitment, Revolving Loans,
Revolving Note, Swing Line Loans and Swing Line Note and obligations in
respect of any Standby Letter of Credit is assigned to the respective
assignee Lender;
(iii) the assigning Lender shall pay to the Agent a one-time fee in the
amount of $3,500.00; and
(iv) the Agent and, so long as no Event of Default shall have
occurred and be continuing, the Borrower shall have consented to such
assignment, which consent shall not be unreasonably withheld or
delayed.
Upon execution and delivery by the assignee to the Borrower and the Agent of an
instrument in writing pursuant to which such assignee agrees to be a "Lender"
hereunder (if not already a Lender) having the Commitment and Revolving Loans
and Swing Line Loans specified in such assignment, and upon the consent of the
Agent and, if applicable, the Borrower as provided above, the assignee shall
have, to the extent of such assignment, the rights, benefits and obligations of
a Lender hereunder holding the Commitment, Revolving Loans and Swing Line Loans
(or portions thereof) and Standby Letters of Credit or deemed participations
therein, as applicable, assigned to it pursuant to such assignment (in addition
to the Commitment, Revolving Loans and Swing Line Loans (or portions thereof)
and Standby Letters of Credit or deemed participations therein, as applicable,
theretofore held by such assignee), and the assigning Lender shall, to the
extent of such assignment, be relieved from its Commitment (or portion thereof)
and other obligations hereunder so assigned.
Section 9.09. Affirmative Rate of Interest Permitted by Law. TC "Section 9.9
Affirmative Rate of Interest Permitted by Law." \f C \l "2" Nothing in this
Agreement or in any Revolving Note or Swing Line Note shall require the Borrower
to pay interest to the Agent for the account of the Lenders at a rate exceeding
the maximum rate permitted by applicable law to be charged or received by the
Lenders, it being understood that this Section 9.9 is not intended to make the
criminal laws of any jurisdiction applicable in circumstances in which they
would not otherwise apply. If the rate of interest specified herein or in any
Revolving Note would otherwise exceed the maximum rate so permitted to be
charged or received with respect to any amounts outstanding hereunder or under
such Revolving Note, or Swing Line Note, the rate of interest required to be
paid to the Agent for the account of the Lenders shall be automatically reduced
to such maximum rate.
Section 9.10. Costs and Expenses; Indemnification. TC "Section 9.10 Costs and
Expenses; ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇." \▇ ▇ \▇ "▇" ▇▇▇▇▇▇▇ regard to whether the Effective
Date shall have come into existence or whether any Revolving Loan or Swing Line
Loan or Standby Letter of Credit shall have been made or issued hereunder, the
Borrower shall pay to each Lender and the Agent, as the case may be, and
reimburse each Lender and the Agent for, as the case may be, and save each
Lender and the Agent, as the case may be, harmless from, and indemnify each
Lender and the Agent, as the case may be, against, losses from:
(i) in the case of the Agent, (x) all out-of-pocket cost and
expenses of the Agent in connection with the preparation, execution,
delivery, waiver, modification, amendment, filing and recording of this
Agreement and any other Credit Document (to the extent applicable) and
any other document or instrument delivered in connection with the
transactions contemplated hereby, including, without limitation, the
reasonable fees and expenses of counsel for the Agent with respect
thereto, and (y) all out-of-pocket costs and expenses, if any
(including without limitation, reasonable counsel and advisor fees and
expenses), of such Agent in such capacity in connection with the
enforcement (whether through negotiations, legal proceedings or
otherwise) of or exercise of remedies under this Agreement and any
other Credit Document and any other document or instrument delivered in
connection with the transactions contemplated hereby, including, for
the avoidance of doubt and without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under this
clause (i); and
(ii) in the case of any Lender, all out-of-pocket costs and
expenses, if any (including without limitation, reasonable counsel fees
and expenses), of such Lender in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of or
exercise of remedies under this Agreement and any other Credit Document
and any other document or instrument delivered in connection with the
transactions contemplated hereby, including, for the avoidance of doubt
and without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this clause (ii).
(a) The Borrower shall indemnify and hold harmless each Lender, the Agent and
their respective affiliates, officers, directors, employees, agents and advisors
(each, an "Indemnified Person") from and against, and pay and reimburse each
Indemnified Person for, any and all claims, damages, fines, penalties, losses,
liabilities, costs and expenses (including, without limitation, reasonable fees
and disbursements of counsel) which may be incurred by or asserted or awarded
against any Indemnified Person (i) arising out of or in connection with or by
reason of any investigation, litigation or proceeding (of whatever nature), or
the preparation of a defense of any investigation, litigation or proceeding,
relating to this Agreement, any other Credit Document, any other document or
instrument delivered in connection with the transactions contemplated hereby,
the proceeds of the Revolving Loans or Swing Line Loans any other transaction
contemplated hereby or thereby, and (ii) with respect to any environmental
matters, any environmental compliance expenses and remediation expenses, to the
extent required under any environmental law (whether statutory or common law) in
connection with the presence or suspected presence of any Hazardous Substance in
or into the air, soil, groundwater, surface water or improvements at, on, about,
under, or within any of the Borrower's or its current or former Subsidiaries'
present, past or future properties, or any portion thereof, or elsewhere in
connection with the transportation of Hazardous Substances to or from such
properties, and in the case of clause (i) or (ii) whether or not an Indemnified
Person is a party hereto or thereto and whether or not the Effective Date shall
have come into existence or any Revolving Loan or any Standby Letter of Credit
has been made or issued under this Agreement; provided, however, that the
Borrower shall have no obligation to indemnify or hold harmless any Indemnified
Person under this Section 9.10(b) to the extent arising out of such Indemnified
Person's gross negligence or willful misconduct.
(b) All amounts payable by the Borrower under this Section 9.10 shall be
immediately due upon written request by a Lender or the Agent, as the case may
be, for the payment thereof. The obligations of the Borrower under this Section
9.10 shall survive the repayment of the Revolving Notes and the Swing Line Note
and reimbursement for any Drawing under any Standby Letter of Credit.
Section 9.11. Set-Off; Suspension of Payment and Performance. TC "Section 9.11
Set-Off; Suspension of Payment and Performance." \f C \l "2" Each Lender and the
Agent is hereby authorized by the Borrower, at any time and from time to time,
without notice (a) to set off against, and to appropriate and apply to the
payment of, the liabilities of the Borrower then due under this Agreement and
any other Credit Document any and all liabilities owing by any Lender or the
Agent or any of their Affiliates to the Borrower (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of liabilities
that are deposits (including, without limitation, any funds from time to time on
deposit in the Borrower Account or other account maintained with any Lender or
the Agent, whether general or special, time or demand and however evidenced and
whether maintained at a branch or office located within or without the United
States), and (b) during any Event of Default, to suspend the payment and
performance of such liabilities owing by such Person or its Affiliates and, in
the case of liabilities that are deposits, to return as unpaid for insufficient
funds any and all checks and other items drawn against such deposits.
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. TC "Section 9.12
Judicial Proceedings; Waiver of Jury Trial." \f C \l "2" Any judicial proceeding
brought against the Borrower with respect to any Credit Agreement Related Claim
may be brought in any court of competent jurisdiction in the Commonwealth of
Virginia, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
judgment rendered thereby in connection with any Credit Agreement Related Claim
and (b) irrevocably waives any objection it may now or hereafter have as to the
venue of any such proceeding brought in such a court or that such a court is an
inconvenient forum. The Borrower hereby waives personal service of process and
consents that service of process upon it may be made by certified or registered
mail, return receipt requested, at its address specified or determined in
accordance with the provisions of Section 9.6 of this Agreement, and service so
made shall be deemed completed on the earlier of (x) the receipt thereof and (y)
if sent by registered or certified mail (return receipt requested), the fifth
(5th) Business Day after such service is deposited in the mail. Nothing herein
shall affect the right of any Lender, the Agent or any other Indemnified Person
to serve process in any other manner permitted by law or shall limit the right
of any Lender, the Agent or any other Indemnified Person to bring proceedings
against the Borrower in the courts of any other jurisdiction. Any judicial
proceeding by the Borrower against any Lender or the Agent involving any Credit
Agreement Related Claim shall be brought only in a court located in the
Commonwealth of Virginia. THE BORROWER AND THE LENDERS AND THE AGENT HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES
INVOLVING ANY CREDIT AGREEMENT RELATED CLAIM.
Section 9.13. Integration. TC "Section 9.13 Integration." \f C \l "2" This
Agreement and the other Credit Documents and, when executed, the Autoborrow
Services Agreement constitute the entire agreement of the Agent, the Lenders,
the Borrower and the other Credit Parties with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to the subject matter hereof or
thereof not expressly set forth or referred to herein or in the other Credit
Documents.
Section 9.14. Further Acts and Assurances. TC "Section 9.14 Further Acts and
Assurances." \f C \l "2" The Borrower shall, and shall cause the Credit Parties
to promptly and duly execute and deliver to a Lender or the Agent, as the case
may be, and to such other persons as such Lender or the Agent shall reasonably
designate, such further instruments and shall take such further action as may be
required by law or as such Lender or the Agent may from time to time request in
order more effectively to carry out and accomplish the intent and purpose of
this Agreement and the other Credit Documents and to establish and protect the
rights and remedies created or intended to be created in favor of the Agent or
any Lender hereunder or under any other Credit Document.
Section 9.15. No Fiduciary Relationship. TC "Section 9.15 No Fiduciary
Relationship." \f C \l "2" The Borrower acknowledges that no provision of this
Agreement or in any of the other Credit Documents, and no course of dealing
between any Lender or the Agent and the Borrower, or any other Credit Party,
shall be deemed to create any fiduciary duty by the Agent or any Lender to the
Borrower or any other Credit Party.
Section 9.16. Severability. TC "Section 9.16 Severability." \f C \l "2" The
provisions of this Agreement are severable, and if any clause or provision of
this Agreement shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such clause or provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability of such clause or provision in
any other jurisdiction or the remaining provisions hereof in any jurisdiction.
Section 9.17. Counterparts. TC "Section 9.17 Counterparts." \f C \l "2" This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each complete set of which, when so executed
and delivered by all parties, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 9.18. Headings, Bold Type and Table of Contents. TC "Section 9.18
Headings, Bold Type and Table of Contents." \f C \l "2" The section headings,
subsection headings, and bold type used herein and the Table of Contents hereto
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Agreement as of the day and year
first above written.
BORROWER
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:_/s/ ▇▇▇▇▇ ▇. Dozier_______________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
AGENT
Address: NATIONSBANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:_____________________________
Fifth Floor Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Senior Vice President
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
LENDERS
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. Gaittens__________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit A to Revolving Credit Agreement
Form of Borrower Security Agreement has
been intentionally omitted. See Security Agreement executed by ▇▇▇▇▇▇
▇▇▇▇▇▇, Inc. in the form of the Borrower Security Agreement attached to
the Revolving Credit Agreement as Exhibit A
Exhibit B to
Revolving Credit Agreement
INTENTIONALLY DELETED
Exhibit C to
Revolving Credit Agreement
Form of Revolving Note has been
intentionally omitted. See Revolving Note
executed by ▇▇▇▇▇▇ Bailly, Inc. in the form
of the Revolving
Exhibit D to
Revolving Credit Agreement
Form of Subsidiary Guarantee has
been intentionally omitted. See Subsidiary Guarantee
by those Domestic Subsidiaries of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
constituting, as of November 20, 1998,
Material Domestic Subsidiaries in the
form of the Subsidiary Guarantee attached
to the Revolving Credit Agreement as Exhibit D
Schedule I to
The Revolving Credit Agreement
Name of Lender Commitment (in Dollars)
NationsBank, N.A. $50,000,000.00
Schedule 5.5
Litigation
1. ▇▇▇▇▇▇ Bailly's indirect subsidiary, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, is a
defendant in a lawsuit brought in the United States District Court for the
Northern District of Illinois, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ v. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, No. 95-C4175, by one of its former executives seeking payment
of a bonus and salary allegedly due him and payment of principal and
interest on a subordinated note of TB&A held by him, prejudgment interest
and costs and fees.
2. Apogee Research, Inc. ("Apogee"), one of ▇▇▇▇▇▇ Bailly's wholly owned
subsidiaries, has received a subpoena from the Office of the Inspector
General of the Environmental Protection Agency (the "EPA") requesting
records from April 1993 through October 1995 pertaining to a contract
between Apogee and the EPA. The work under this contract has been
completed. The subpoena was served in connection with an EPA investigation
relating to the submission of potential false statements and false claims
under the contract.
3. A former employee of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. has filed a claim with the
Arlington County Human Rights Commission against the Company alleging
discrimination in relation to her termination.
4. HB Capital, Inc., a wholly owned subsidiary of the Company, is seeking the
payment of approximately $133,000 in fees and a success fee from
Engineering Power Systems Group, Inc. ("EPS") in connection with the
financing of a barge mounted power system in Case ▇▇. ▇▇▇▇ ▇▇.▇. ▇▇. ▇▇▇▇,
Supreme Court of Newfoundland, Trial Division. EPS has filed a
counterclaim against HB Capital, Inc. in this case. No specific dollar
amount of damages is claimed in the counterclaim.
Schedule 5.6
Defaults
None.
Schedule 5.12
Subsidiaries
Book Value
of Total Shares of Cap Incorporation
Name Assets of Stock O/S Ownership
Material
Domestic
Type Subsidiaries
of as of
Subsidiary 9/30/98
1. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Texas, Inc. Domestic -0- Texas 100 100% (4)
2. ▇▇▇▇▇▇ Bailly Consulting France, S.A. Foreign $1,314,547 France 10,000 100% (1)*
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Indonesia, Inc. Foreign $1,346,828 Delaware 100 100% (1)
4. PT ▇▇▇▇▇▇ Bailly Indonesia Foreign -0- Indonesia 150,000 100% (2)
5. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Ltd. Foreign 522,883 Ireland 1,000,000 100% (1)
6. TB&A Group, Inc. Material Domestic $7,005,623 Delaware 1,000 100% (3)
7. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates Material Domestic $9,203.368 California 10,648 100% (7)
8. Apogee Research, Inc. Domestic -0- Maryland 1,000 100% (3)
9. Apogee Research International Ltd. Foreign $704,285 Canada 100 100% (6)
10. ▇▇▇▇▇, ▇▇▇▇▇▇ et Associes, S.A.R.L. Foreign $2,386,985 France 2,500 100% (3)
11. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. Foreign $518,163 Argentina 12,000 100% (1&8)
12. Estudio Q Ingenieros Asociados S.R.L. Foreign -▇- ▇▇▇▇▇▇▇▇▇ 12,000 100% (3)
13. Estudio Q S.A. Foreign $430,788 Argentina 12,000 100% (3)
14. ▇▇▇▇▇▇ Bailly Services, Inc. Material Domestic $20,962,178 Delaware 100 100% (3)
15. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc. Material Domestic $6,939,134 Delaware 100 100% (3)
16. HB Capital, Inc. Material Domestic $387,450 Delaware 100 100% (3)
17. HB Capital Securities, Inc. Material Domestic -0- Delaware 1,000 100% (9)
18. Private Label Energy Services, Inc. Material Domestic $1,000,000 Delaware 100 100% (9)
19. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Services (India) Ltd. Foreign -0- India 125,000 74% (1)
20. ▇▇▇▇▇▇ Bailly Armenia Foreign $34,359 Delaware 0 100% (1)
21. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Pakistan (Private) Ltd. Foreign -0- Pakistan 40,000 25% (1)+
22. Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc. Material Domestic $29,238,015 Massachusetts 1,000 100% (3)
23. Putnam, Hayes & ▇▇▇▇▇▇▇▇ - Asia Pacific Ltd Foreign $3,951,522 New Zealand 20,000 100% (5)
24. Putnam, Hayes & ▇▇▇▇▇▇▇▇ - Asia Pacific Foreign $1,804,506 Australia 150,000 100% (5)
Pty Ltd
25. ▇▇▇▇▇▇ Bailly International S.A. Foreign -▇- ▇▇▇▇▇▇▇ 2,000 50% (1)++
26. ZAO ▇▇▇▇▇▇ ▇▇▇▇▇▇ Foreign -0- Russia 0 100% (1)
27. Core Management Systems Ltd Foreign -0- New Zealand 100 100% (10)
28. Fieldston Publications, Inc. Domestic $189,656 Maryland 100 100% (3)
--------------------------------------------------
Shares owned by six (6) individuals
+ Seventy-five percent (75%) of shares owned by three (3) individuals ++ Fifty
percent (50%) of shares owned by RCG International, Inc .
(1) ▇▇▇▇▇▇ Bailly Services, Inc.
(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Indonesia, Inc.
(3) ▇▇▇▇▇▇ Bailly, Inc.
(4) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc.
(5) Putnam, Hayes & ▇▇▇▇▇▇▇▇, Inc.
(6) Apogee Research, Inc.
(7) TB&A Group, Inc.
(8) Estudio Q Ingenieros Asociados S.R.L.
(9) HB Capital, Inc
(10) Putnam, Hayes & ▇▇▇▇▇▇▇▇ - Asia Pacific Ltd
Schedule 5.14
Real Property
None.
Schedule 6.2(b)
Certain Indebtedness
1. A Standby letter of credit issued in the amount of $12,121.00 by State
Street Bank and Trust Company in favor of Superintencia De Electricita,
Government of Bolivia.
SCHEDULES
Schedule I -- Commitments TC "Schedule I -- ▇▇▇▇▇▇▇▇▇▇▇" \▇ ▇ \▇ "▇"
▇▇▇▇▇▇▇▇ 5.5 -- Litigation TC "Schedule 5.5 -- ▇▇▇▇▇▇▇▇▇▇" \▇ ▇ \▇ "▇"
▇▇▇▇▇▇▇▇ 5.6 -- Defaults TC "Schedule 5.6 -- Defaults" \f C \l "1"
Schedule 5.12 -- Subsidiaries TC "Schedule 5.12 -- ▇▇▇▇▇▇▇▇▇▇▇▇" \▇ ▇ \▇
"▇"
▇▇▇▇▇▇▇▇ 5.14 -- Real Property TC "Schedule 5.14 -- Real ▇▇▇▇▇▇▇▇" \▇ ▇ \▇
"▇"
▇▇▇▇▇▇▇▇ 6.2(b) -- Certain Indebtedness TC "Schedule 6.2(b) -- Certain
Indebtedness" \f C \l "1"