Exhibit 9
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$38,500,000
CREDIT AGREEMENT
Dated as of December 23, 1996
among
JWC ACQUISITION I, INC.
as the Borrower
and
THE LENDERS NAMED HEREIN
and
NATIONSBANK, N.A.
as the Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I Definitions
SECTION 1.01. Defined Terms
SECTION 1.02. Terms Generally
ARTICLE II The Credits
SECTION 2.01. Commitments
SECTION 2.02. Loans
SECTION 2.03. Borrowing Procedure
SECTION 2.04. Evidence of Debt; Repayment of Loans
SECTION 2.05. Fees
SECTION 2.06. Interest on Loans
SECTION 2.07. Default Interest
SECTION 2.08. Alternate Rate of Interest
SECTION 2.10. Conversion and Continuation of Borrowings
SECTION 2.11. Prepayment
SECTION 2.12. Reserve Requirements; Change in Circumstances
SECTION 2.13. Change in Legality
SECTION 2.14. Indemnity
SECTION 2.15. Pro Rata Treatment
SECTION 2.16. Sharing of Setoffs
SECTION 2.17. Payments
SECTION 2.18. Taxes
SECTION 2.19. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers
SECTION 3.02. Authorization
SECTION 3.03. Enforceability
SECTION 3.04. Governmental Approvals
SECTION 3.05. Financial Statements
SECTION 3.06. No Material Adverse Change
SECTION 3.07. Title to Properties; Possession Under Leases
SECTION 3.08. The Subsidiaries
SECTION 3.09. Litigation; Compliance with Laws
SECTION 3.10. Agreements
SECTION 3.11. Federal Reserve Regulations
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act
SECTION 3.13. Use of Proceeds
SECTION 3.14. Tax Returns
SECTION 3.15. No Material Misstatements
SECTION 3.16. Employee Benefit Plans
SECTION 3.17. Solvency
SECTION 3.18. Insurance
SECTION 3.19. Labor Matters
SECTION 3.20. Environmental Matters
SECTION 3.21. Survival of Representations and Warranties,
etc.
SECTION 3.22. Incorporation of Merger Agreement
Representations
ARTICLE IV Conditions of Lending
SECTION 4.01. All Credit Events
SECTION 4.02. First Credit Event
ARTICLE V Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties
SECTION 5.02. Insurance
SECTION 5.03. Obligations and Taxes
SECTION 5.04. Financial Statements, Reports, etc.
SECTION 5.05. Litigation and Other Notices
SECTION 5.06. Employee Benefits
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections
SECTION 5.08. Use of Proceeds
SECTION 5.09. Compliance with Environmental Laws
SECTION 5.10. Compliance with Material Contracts
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness
SECTION 6.02. Liens
SECTION 6.03. Sale and Lease Back Transactions
SECTION 6.04. Investments, Acquisitions, Loans and Advances
SECTION 6.05. Mergers, Consolidations and Sales of Assets
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries to Pay Dividends
SECTION 6.07. Transactions with Affiliates
SECTION 6.08. Limitation on Restrictive Agreements
SECTION 6.09. Amendments to Organizational Documents
ARTICLE VII Events of Default
ARTICLE VIII The Administrative Agent
ARTICLE IX Miscellaneous
SECTION 9.01. Notices
SECTION 9.02. Survival of Agreement
SECTION 9.03. Binding Effect
SECTION 9.04. Successors and Assigns
SECTION 9.05. Expenses; Indemnity
SECTION 9.06. Right of Setoff
SECTION 9.07. Applicable Law
SECTION 9.08. Waivers; Amendment
SECTION 9.09. Interest Rate Limitation
SECTION 9.10. Entire Agreement
SECTION 9.11. Waiver Of Jury Trial
SECTION 9.12. Severability
SECTION 9.13. Counterparts
SECTION 9.14. Headings
SECTION 9.15. Jurisdiction; Consent to Service of Process
SECTION 9.16. Confidentiality
Exhibits and Schedules
Exhibits
Exhibit A - Form of Administrative Questionnaire
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Borrowing Request
Exhibit D - Form of Compliance Certificate
Schedules
Schedule 2.01 - Lenders and Commitments
Schedule 3.08 - Subsidiaries
Schedule 3.09 - Litigation
Schedule 3.10 - Restrictive Material Agreements
Schedule 3.18 - Insurance
Schedule 6.01 - Subsidiary Indebtedness
Schedule 6.02 - Liens
Schedule 6.04 - Investments
The bracketed text should only be included when the Compliance
Certificate is delivered with the interim financial statements.
JWC ACQUISITION I, INC.
$38,500,000
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement"), dated as of December 23,
1996, among JWC ACQUISITION I, INC., a Delaware corporation (the "Borrower"),
the Lenders (such term and each other capitalized term used but not defined
herein having the meaning given it in Article I hereof), and NATIONSBANK,
N.A., a national banking association, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
The Borrower has requested the Lenders to extend
secured credit at any time and from time to time prior to
the Maturity Date, in the form of (a) Revolving Loans in an
aggregate principal amount at any time outstanding not to
exceed $5,880,000 and (b) Term Loans in an aggregate
principal amount not to exceed $32,620,000. The proceeds of
the Revolving Loans shall be used by the Borrower solely to
(i) finance the Management Stock Purchase and Open Market
Purchases, and (ii) pay interest, fees and expenses incurred
with respect to this Agreement and the transactions
contemplated hereby. The proceeds of the Term Loans shall
be used by the Borrower to (i) finance, in part, the
Additional Stock Purchase and (ii) pay fees and expenses
incurred in connection with the Additional Stock Purchase,
such fees and expenses not to exceed $1,000,000.
The Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions set
forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base
Rate in accordance with the provisions of Article II hereof.
"Additional Stock Purchase" shall mean the purchase by the Borrower
pursuant to the Securities Purchase Agreement of (i) 5,783,515 shares of
Target Stock from Target Shareholder at a price per share of Target Stock of
$14.00 and (ii) the Warrants.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, a simple per annum interest rate equal to
the lesser of (a) the Highest Lawful Rate and (b) the sum of (i) the quotient
of (x) the LIBO Rate divided by (y) one minus the LIBOR Reserve Percentage,
stated as a decimal, plus (ii) the Applicable Percentage. The Adjusted LIBO
Rate shall apply to Interest Periods of one or two months, in each case, if
determined available by the Administrative Agent. The Adjusted LIBO Rate
shall be subject to availability with respect to the Lenders and to Section
2.13 hereof. Once determined, the Adjusted LIBO Rate shall remain unchanged
during the applicable Interest Period, except for changes to reflect
adjustments in the LIBOR Reserve Percentage.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the lesser
of (a) the Highest Lawful Rate and (b) the sum of (i) the Applicable
Percentage, plus (ii) the greater of (A) the Prime Rate in effect on such
day, and (B) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1 %. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (B) of
the preceding sentence, until the circumstances giving rise to such inability
no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively. The term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its office in Charlotte, North Carolina;
each change in the Prime Rate shall be effective on the date such change is
publicly announced as being effective. The term "Federal Funds Effective
Rate" shall mean, for any day, 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, New York or, if such
rate is not so published for any day that is a Business Day, the average of
the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Applicable Law" shall mean in respect of any Person, all provisions
of Laws of tribunals applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan, the applicable percentage set forth below under
the caption "Eurodollar Margin" or "ABR Margin," as the case may be, then in
effect for purposes hereof:
Eurodollar ABR
Margin Margin
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Prior to the occurrence
of An Event of Default 3.50% 1.50%
Following the occurrence
of an Event of Default 5.50% 3.50%
"Asset Disposition" shall mean, with respect to any Person: (i) the
sale, lease, conveyance, disposition or other transfer by such Person of any
of its assets (including by way of a sale-leaseback transaction and including
the sale or other transfer of any of the Capital Stock of any Subsidiary of
such Person) or (ii) the issuance, sale, conveyance, disposition or other
transfer by such Person of any Capital Stock of such Person or ownership,
membership or other equity interests in such Person; provided, however, that
notwithstanding the foregoing, the term "Asset Disposition" shall not include
the sale, lease, conveyance, disposition or other transfer of any assets in
the ordinary course of business.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B hereto or such other form as shall be
approved by the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowing" shall mean Loans of a single Type made by the Lenders in
accordance with the terms hereof on a single date and as to which a single
Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 hereof and substantially in the
form of Exhibit C hereto.
"Business Day" shall mean any day other than a Saturday, Sunday or
day on which banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean, as to any Person, the equity interests in
such Person, including, without limitation, the shares of each class of
capital stock of any Person that is a corporation and each class of
partnership interests (including, without limitation, general, limited and
preference units) in any Person that is a partnership.
A "Change in Control" shall be deemed to have occurred if any Person
or group (within the meaning of Rule 13d-5 of the Securities Exchange Act of
1934 as in effect on the date hereof) shall (a) own directly or indirectly,
beneficially or of record, shares of Capital Stock of the Target, the
Borrower or Holding representing a majority of the aggregate ordinary voting
power, or (b) control a majority of the seats on the Board of Directors of
the Borrower or Holding, or (c) have effective voting control of the Target,
the Borrower or Holding, unless such Person or group is JWC or the other
stockholders of Holding as of the Closing Date.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean first priority and perfected Liens in (a)
100% of the Capital Stock and the Warrants of the Target acquired by the
Borrower in any Stock Purchase, (b) all of the Borrower's other assets,
including all of the Borrower's right, title and interest in and under the
Merger Agreement and (c) all other present and future real and personal
property of the Borrower and its Subsidiaries (other than the Target and its
Subsidiaries).
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Loans hereunder as set forth on Schedule 2.01 hereto,
or in the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 hereof or pursuant to Section 2.19 hereof and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04 hereof.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(b) hereof.
"Compliance Certificate" shall mean a compliance certificate,
substantially in the form of Exhibit D hereto, and certifying that there
exists no Default or Event of Default at the time of delivery thereof.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have the meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01 hereto.
"Debtor Relief Laws" shall mean applicable bankruptcy,
reorganization, moratorium, or similar Laws, or principles of equity
affecting the enforcement of creditors' rights generally.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, consent decree, cost
recovery action or other cause of action by, or on behalf of, any Governmental
Authority or any Person for damages, injunctive or equitable relief, personal
injury (including sickness, disease or death), Remedial Action costs, tangible
or intangible property damage, natural resource damages, nuisance, pollution,
any adverse effect on the Environment caused by any Hazardous Material, fines,
penalties or restrictions, resulting from or based upon: (a) the existence,
or the continuation of the existence, of a Release (including sudden or
non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or
alleged violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, Laws, codes, judgments, injunctions or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating
in any way to the Environment, preservation or reclamation of natural
resources or the management, Release or threatened Release of any Hazardous
Material, including the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. Sections 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
Sections 1251 et seq., the Clean Air Act of 1970, 42 U.S.C. Sections 7401 et
seq., as amended, the Toxic Substances Control Act of 1976, 15 U.S.C.
Sections 2601 et seq., the Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of
1974, as amended by 42 U.S.C. Sections 300(f) et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 5101 et seq., and any
similar or implementing state or local law, and all amendments or regulations
promulgated thereunder.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required
by or from any Governmental Authority pursuant to any Environmental Law.
"Equity Financing" shall mean the issuance and sale of not less than
$50,300,000 of equity of Holding, of which (a) not less than $40,300,000
shall be provided through the issuance and sale for cash of common stock of
Holding, including a cash contribution to Holding by JWC of not less than
$25,300,000, the net cash proceeds of which shall be contributed to the
Borrower, and (b) not less than $10,000,000 shall be provided through the
issuance and sale for cash of preferred stock of Holding.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (c) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (d) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA upon the termination of any Plan or the
withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the
Borrower or any ERISA Affiliate from the PBGC of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA; and (h) the
occurrence of a "prohibited transaction" with respect to which the Borrower
or any of its Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of the Code) or with respect to which the Borrower or any such
Subsidiary could otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loans" shall mean Loans bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II hereof.
"Event of Default" shall have the meaning assigned to such term in
Article VII hereof.
"Fee Letters" shall mean (a) that certain Fee Letter dated November
26, 1996, among the Borrower, Holding, JWC, NCMI and the Administrative Agent
(the "Administrative Agent's Fee Letter") and (b) any other fee letters
executed from time to time among the Borrower, the Administrative Agent and
any of the Lenders, as each may be amended, extended, increased, revised or
substituted from time to time.
"Fees" shall mean the Underwriting Fee, the Commitment Fee and the
Ticking Fee.
"Financial Officer" of any corporation shall mean the president, any
vice president or the treasurer of such corporation.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness, and (d) to guaranty
the obligations, payments by or performance of, a Person that is not a wholly
owned direct or indirect Subsidiary of the Borrower; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantors" shall mean Holding and all domestic Subsidiaries of the
Borrower from time to time.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, including
petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, ("PCBs") or PCB-containing materials or
equipment, radon gas, infectious or medical wastes and all other substances
or wastes of any nature the presence of which requires Remedial Action
pursuant to any Environmental Law.
"Highest Lawful Rate" shall mean at the particular time in question
the maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest
which, under Applicable Law, any Lender is permitted to charge on the
Obligations shall change after the date hereof, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, from time to
time as of the effective time of each change in the Highest Lawful Rate
without notice to the Borrower.
"Holding" shall mean CT Holding, Inc., a Delaware corporation which
is the parent of the Borrower.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits
with such Person or advances to such Person of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(d) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (f) all Guarantees by such
Person, (g) all Capital Lease Obligations of such Person, (h) all net
obligations of such Person in respect of interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate
hedging arrangements, and (i) all obligations of such Person as an account
party in respect to letters of credit and bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any partnership
in which such Person is a general partner.
"Initial Stock Purchase" shall mean the purchase by the Borrower,
pursuant to the Merger Agreement, of 1,048,214 shares of Target Stock owned
by the Target Shareholder at a price per share of Target Stock of $14.00.
"Interest Payment Date" shall mean, with respect to any Loan or other
amount payable hereunder, the last day of each Interest Period during the
term of this Agreement and the Maturity Date.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1 or 2 months thereafter, if
determined available by the Administrative Agent, as the Borrower may elect
and (b) as to any ABR Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (i) the next succeeding March 31,
June 30, September 30 or December 31, (ii) the Maturity Date, and (iii) the
date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 hereof or repaid or prepaid in accordance with
Section 2.11 hereof; provided, however, that if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest
Period.
"JWC" shall mean ▇.▇. Childs Equity Partners, L.P., a Delaware
limited partnership.
"Law" shall mean any applicable constitution, statute, law,
ordinance, regulation, rule, order, writ, injunction, or decree of any
tribunal.
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 hereto (other than any such financial institution that has
ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b)
any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" shall mean, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest one one-hundredth (1/100) of one percent (1%)) appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in United States dollars at approximately 11: 00 a.m. (London time)
two Business Days prior to the first day of such Interest Period. If for any
reason such rate is not available, the term "LIBO Rate" shall mean, for any
Eurodollar Borrowing for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest one one-hundredth (1/100) of
one percent (1%)) appearing on Reuters Screen LIBO page as the London
interbank offered rate for deposits in United States dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"LIBOR Reserve Percentage" shall mean, with respect to any Interest
Period, the percentage which is in effect on the first day of such period
under Regulation D of the Board, as such regulation may be amended from time
to time, as the maximum reserve requirement (including, without limitation,
any basic, supplemental, emergency or marginal reserves) applicable to any
Lender with respect to eurocurrency liabilities (as that term is defined in
Regulation D). The Adjusted LIBO Rate for any Eurodollar Borrowing shall be
adjusted for any change in the LIBOR Reserve Percentage.
"Lien" shall mean, with respect to any asset: (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset, and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities.
"Loan" shall mean a Revolving Loan or a Term Loan made in accordance
with the terms of this Agreement, and collectively, the Revolving Loans and
the Term Loans.
"Loan Papers" shall mean this Agreement, the Security Agreement, the
Pledge Agreements the promissory notes evidencing the Loans, all guaranties
of the Obligations executed by the Guarantors, Fee Letters, financing
statements, Assignment and Acceptances and all other documents, instruments,
agreements or certificates executed or delivered from time to time by any
Person in connection with this Agreement or as security for the Obligations
hereunder, granting Collateral or otherwise, as each such agreement may be
amended, modified, substituted, replaced or extended from time to time.
"Management Stock Purchase" shall mean the purchase by the Borrower
of 146,299 shares of Target Stock from certain members of senior management
of the Target at a price per share of Target Stock of $14.00.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, or financial condition of Holding, the
Borrower, the Target and the Subsidiaries of the Borrower, taken as a whole,
(b) material impairment of the ability of any Obligor or the Target to
perform any of its obligations under this Agreement, under any other Loan
Paper, under the Merger Agreement or under any other agreement executed or
delivered in connection herewith or therewith or (c) material impairment of
the enforceability of this Agreement, any other Loan Paper, the Securities
Purchase Agreement, the Merger Agreement or the Loans.
"Maturity Date" shall mean the earlier to occur of (a) the
consummation of the Merger of the Target with the Borrower pursuant to the
Merger Agreement and (b) April 30, 1997.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, the Administrative Agent or any Lender is permitted to charge
on the Obligations.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated
as of November 27, 1996 by and among the Target, JWC, Holding and the
Borrower.
"Merger Commitment" shall mean the written commitment dated November
26, 1996 of NationsBridge, L.L.C. to provide up to $100,000,000 in bridge
loans to the Borrower in connection with the transactions contemplated by the
Merger Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NationsBank" shall mean NationsBank, N.A., a national banking
association.
"NCMI" shall mean NationsBanc Capital Markets, Inc., a Delaware
corporation.
"Net Cash Proceeds" shall mean with respect to any Asset Disposition:
(i) the gross amount of any cash paid to or received by the Borrower or any
of its Subsidiaries in respect of such Asset Disposition (including (a)
payments of principal or interest, or cash proceeds from the sale or other
disposition in respect of noncash consideration, and (b) insurance proceeds,
condemnation awards and payments from time to time in respect of installment
obligations, if applicable), less (ii) the amount, if any, of (x) the
Borrower's good faith best estimate of all taxes attributable to such Asset
Disposition which it in good faith expects to be paid in the taxable year in
which such Asset Disposition shall occur or in the next taxable year, (y)
reasonable and customary fees, discounts, commissions, costs and other
expenses (other than those payable to the Borrower or any Affiliate of the
Borrower), which are incurred in connection with such Asset Disposition and
are payable by the Borrower or any of its Subsidiaries and (z) in the case of
an Asset Disposition that is a sale, transfer or other disposition of assets
or properties, proceeds required to discharge Liens in respect of such assets
or properties permitted by Section 6.02 hereof.
"Note Retirement" shall mean the retirement by the Target of the
$16,000,000 aggregate principal amount of 7% Convertible Subordinated Notes
due 2002 issued by the Target to the Target Shareholder at an aggregate price
of $16,000,000.
"Obligations" shall mean all present and future obligations,
indebtedness and liabilities, and all renewals and extensions of all or any
part thereof, of the Borrower and/or any Obligor to the Lenders and the
Administrative Agent arising from, by virtue of, or pursuant to this
Agreement, any of the other Loan Papers and any and all renewals and
extensions thereof or any part thereof, or future amendments thereto, all
interest accruing on all or any part thereof and reasonable attorneys' fees
incurred by the Administrative Agent for the preparation of the Loan Papers
and consummation of this credit facility, execution of waivers, amendments
and consents, and in connection with the enforcement or the collection of all
or any part thereof, and reasonable attorneys' fees incurred by the Lenders
in connection with the enforcement or the collection of all or any part of
the Obligations during the continuance of an Event of Default, in each case
whether such obligations, indebtedness and liabilities are direct, indirect,
fixed, contingent, joint, several or joint and several. Without limiting the
generality of the foregoing, "Obligations" includes all amounts which would
be owed by the Borrower, each other Obligor and any other Person (other than
the Administrative Agent or the Lenders) to the Administrative Agent or the
Lenders under any Loan Paper, but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower, any other Obligor or any other Person
(including all such amounts which would become due or would be secured but
for the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"Obligor" shall mean (a) the Borrower, (b) each Guarantor, (c) each
other Person liable for the payment or performance of any of the Obligations
and (d) each other Person the Property of which now or hereafter secures the
performance of any of the Obligations.
"Open Market Purchases" shall mean the purchase by the Borrower of
additional shares of Target Stock for aggregate consideration not to exceed
$2,380,000.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Permitted Investments" shall mean:
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to
the extent such obligations are backed by the full faith
and credit of the United States of America), in each
case maturing within one year from the date of
acquisition thereof;
investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such
date of acquisition, the highest credit rating
obtainable from Standard & Poor's Ratings Group, a
Division of ▇▇▇▇▇▇-▇▇▇▇, Inc. or from ▇▇▇▇▇'▇ Investors
Service, Inc.;
investments in certificates of deposit, banker's acceptances
and time deposits maturing within one year from the date
of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank
which bank or office is organized under the Laws of the
United States of America or any State thereof which has
a combined capital and surplus and undivided profits of
not less than $250,000,000; and
fully collateralized repurchase agreements with a term of
not more than 30 days for underlying securities of the
type described in clause (a) above entered into with any
institution meeting the qualifications specified in
clause (c) above.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency
or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
112 of the Code or Section 307 of ERISA and in respect of which the Borrower
or any ERISA Affiliate is (or if such plan were terminated would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge and Security Agreement dated
as of December 23, 1996 between the Borrower and the Administrative Agent, as
amended, modified or supplemented and in effect from time to time.
"Preferred Stock," as applied to the Capital Stock of any
corporation, shall mean Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as to the
distribution or assets, upon any voluntary or involuntary liquidation or
dissolution of any such corporation, over shares of Capital Stock of any
other class of such corporation.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment.
"Register" shall have the meaning given such term in Section 9.04(d)
hereof.
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the Environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, ▇▇▇▇▇ or in any other way address any Hazardous
Material in the Environment; (ii) prevent the Release or threat of Release,
or minimize the further Release of any Hazardous Material so it does not
migrate or endanger or threaten to endanger public health, welfare or the
Environment; or (iii) perform studies and investigations in connection with,
or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time: (i) Lenders having
Commitments representing more than 50% of the sum of all Commitments at such
time, (ii) for purposes of acceleration pursuant to clause (ii) of the last
paragraph of Article VII, Lenders having Loans and unused Commitments
representing more than 50% of the sum of all Loans outstanding and unused
Commitments or (iii) if the Commitments have terminated, Lenders having Loans
representing more than 50% of the sum of all Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement and the other
Loan Papers.
"Revolving Loan Commitment" shall mean the aggregate commitment of
the Lenders to make Revolving Loans in an aggregate principal amount at any
time outstanding not to exceed $5,880,000.
"Revolving Loans" shall mean the revolving loans made available by
the Lenders to the Borrower pursuant to the Total Commitments and Section
2.01 hereof. Each Revolving Loan shall be a Eurodollar Loan or an ABR Loan.
"Secured Parties" shall mean, collectively, the Administrative Agent
and the Lenders.
"Securities Purchase Agreement" shall mean that certain Securities
Purchase Agreement dated as of November 27, 1996 by and among JWC, Holding,
the Borrower, the Target Shareholder and certain of its Affiliates and
acknowledged by the Target.
"Security Agreement" shall mean the Security Agreement dated as of
December 23, 1996 between the Borrower and the Administrative Agent, as
amended, modified or supplemented and in effect from time to time.
"Stock Purchase" shall mean, collectively, the Initial Stock
Purchase, the Additional Stock Purchase, the Open Market Purchases and the
Management Stock Purchase.
"Subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, association or other
business entity of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or
more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent; provided, however, in no event shall the Target
constitute a "Subsidiary" for purposes of the Loan Papers.
"Target" shall mean Central Tractor Farm & Country, Inc., a Delaware
corporation, and its successors.
"Target Revolving Facility" shall mean a $38,000,000 term and
revolving credit loan facility made available by a bank group led by Fleet
National Bank to the Target, the proceeds of which the Target will use, inter
alia, to finance the Note Retirement.
"Target Shareholder" shall mean ▇▇▇▇▇▇ Capital Corporation and its
affiliates.
"Target Stock" shall mean the outstanding common stock, par value
$.01 per share, of the Target.
"Term Loans" shall mean the term loans made available by the Lenders
to the Borrower pursuant to the Total Commitments and Section 2.01 hereof.
Each Term Loan shall be a Eurodollar Loan or an ABR Loan from time to time.
"Term Loan Commitment" shall mean the aggregate commitment of the
Lenders to make the Term Loans in an aggregate principal amount not to exceed
$32,620,000.
"Ticking Fee" shall have the meaning assigned to such term in Section
2.05(a) hereof.
"Total Commitment" shall mean, at any time, the aggregate amount of
the Lenders' Commitments, as in effect at such time.
"Total Exposure" shall mean, with respect to the Lenders at any time,
the aggregate principal amount at such time of all outstanding Revolving
Loans of the Lenders, plus the aggregate principal amount at such time of the
outstanding Term Loans.
"Transactions" shall have the meaning assigned to such term in
Section 3.02 hereof.
"Type" when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term
"Rate" shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"Underwriting Fee" shall have the meaning assigned to such term in
Section 2.05(a) hereof.
"Warrants" shall mean warrants to purchase 230,523 shares of Target
Stock from the Target Shareholder at a price per share of Target Stock at
$14.00 (or approximately $10.41 per share net of the exercise price) pursuant
to the Merger Agreement.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the outstanding Capital Stock
or partnership interests, as the case may be, are, at the time any
determination is being made, owned by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation." All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however, that for purposes of
determining compliance with the covenants contained in Article VI hereof, all
accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect
on the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05
hereof.
ARTICLE II
The Credits
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SECTION 2.01. Commitments.
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Loans to the Borrower, at any
time and from time to time on or after the date hereof, and until the earlier
of (a) the Maturity Date, and (b) the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount
at any time up to such Lender's Pro Rata Percentage of the Revolving Loan
Commitment; provided that, notwithstanding anything in this Agreement or in
any other Loan Paper to the contrary, no Lender shall at any time be
obligated to make any Revolving Loan if such Revolving Loan would result in
(A) such Lender's Total Exposure exceeding such Lender's Commitment, and (B)
the Revolving Loans made by such Lender exceeding such Lender's Pro Rata
Percentage of the Revolving Loan Commitment. Within the limits set forth in
the preceding sentence and subject to the terms, conditions and limitations
set forth herein, the Borrower may borrow, pay or prepay and reborrow
Revolving Loans.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make a Term Loan to the Borrower on the Closing
Date in an aggregate principal amount equal to such Lender's Pro Rata
Percentage of the Term Loan Commitment.
SECTION 2.02. Loans.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Revolving Loan Commitments. The Revolving Loans comprising
any Borrowing shall be in an aggregate principal amount that is (i) unless
such Borrowing is solely for the purpose of financing the payment of interest
or fees hereunder, an integral multiple of $100,000 but in no event less than
$200,000 or (ii) equal to the remaining available balance of the Revolving
Loan Commitment. Each Term Loan shall be made as part of a Borrowing
consisting of Term Loans made by the Lenders in accordance with their
respective Pro Rata Percentages of the Term Loan Commitments. The failure of
any Lender to make any Loan shall not in itself relieve any other Lender of
its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender).
(b) Subject to Sections 2.08 and 2.13 hereof, each other
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request pursuant to Section 2.03 hereof, as applicable;
provided, however, that Borrowings on the Closing Date shall be comprised
entirely of ABR Loans. Each Lender may at its option make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding
at the same time; provided, however, that the Borrower shall not be entitled
to request any Borrowing that, if made, would result in more than seven (7)
Eurodollar Borrowings being outstanding hereunder at any time. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds
to such account in Charlotte, North Carolina as the Administrative Agent may
designate not later than 12:00 noon, Charlotte, North Carolina time, and the
Administrative Agent shall by 3:00 p.m., Charlotte, North Carolina time,
credit the amounts so received to an account in the name of the Borrower,
maintained with the Administrative Agent and designated by the Borrower in
the applicable Borrowing Request or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative 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 repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(e) The Borrower acknowledges that if the Borrower requests any
Borrowing with an Interest Period that would end after the Maturity Date, a
Breakage Event (as defined in Section 2.14 hereof) will occur on the Maturity
Date and the Borrower will be obligated to indemnify the Lenders in
accordance with the terms of Section 2.14 hereof.
(f) The Borrower hereby authorizes the Administrative Agent to
debit any of the Borrower's demand deposit accounts with NationsBank, N.A.
for the amount of any principal or interest on the Loans and Fees or other
Obligations on the date when the same come due.
SECTION 2.03. Borrowing Procedure. In order to request a
Borrowing (other than the Term Loans, as to which this Section 2.03 shall not
apply), the Borrower shall hand deliver or facsimile to the Administrative
Agent a duly completed Borrowing Request (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., Charlotte, North Carolina time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 10:00 a.m., Charlotte, North Carolina time, on the
date (which shall be a Business Day) of a proposed Borrowing. Each Borrowing
Request shall be irrevocable, shall be signed by or on behalf of the Borrower
and shall specify the following information: (i) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)) hereof; (iv)
the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto. If no election as to
the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to
any Eurodollar Borrowing is specified in any such notice, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
The Administrative Agent shall promptly advise the Lenders of any notice
given pursuant to this Section 2.03 hereof (and the contents thereof), and of
each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans.
(a) On or before the Maturity Date, the Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan and
each Term Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender from time to
time, including the amounts of principal and interest payable and paid such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence, absent manifest
error, of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligations of the Borrower to repay the Loans in accordance with their
terms.
(e) As evidence of the Loans hereunder, on the Closing Date, the
Borrower shall deliver to each Lender one promissory note evidencing its Pro
Rata Percentage of the maximum Revolving Loans to be made hereunder and one
promissory note evidencing its Pro Rata Percentage of the Term Loan made
hereunder.
SECTION 2.05. Fees.
(a) The Borrower agrees to pay to NCMI, for its own account, and
underwriting fee as is set forth in the Administrative Agent Fee Letter (the
"Underwriting Fee") in accordance with such terms set forth in the
Administrative Agent Fee Letter, and to pay to the Administrative Agent the
"ticking fee" set forth in Administrative Fee Letter (the "Ticking Fee"), at
the times and in the amount specified therein.
(b) Subject to Section 9.09 hereof, the Borrower agrees to pay
to each Lender, through the Administrative Agent, on the last day of March,
June, September and December of each year and on the date on which the
Commitment of such Lender shall be terminated as provided herein, commitment
fees (the "Commitment Fees") equal to the average daily amount of the excess,
if any, of (i) such Lender's Commitment over (ii) the aggregate outstanding
principal amount of Loans made by such Lender, at the per annum rate of .50%,
commencing with the first such date after the Closing Date, and continuing
until the Commitment has been reduced to zero or terminated. Subject to
Section 9.09 hereof and Applicable Law, all Commitment Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days.
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the Fees shall be
refundable, except in accordance with the provisions of Section 9.09 hereof.
SECTION 2.06. Interest on Loans.
(a) Subject to the provisions of Section 2.07 hereof, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, when the Alternate Base Rate is determined by reference to the Prime
Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. If the amount of interest payable in
respect of any interest computation period is limited to the Highest Lawful
Rate in accordance with the definition of Alternate Base Rate, and the amount
of interest payable in respect of any subsequent interest computation period
would be less than the Maximum Amount, then the amount of interest payable in
respect of such subsequent interest computation period shall be automatically
increased to the Maximum Amount; provided that at no time shall the aggregate
amount by which interest paid has been increased pursuant to this sentence
exceed the aggregate amount by which interest has been reduced had the
Alternate Base Rate not been limited to the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.07 hereof, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing. If the amount of interest payable in respect of any
interest computation period is limited to the Highest Lawful Rate in
accordance with the definition of Adjusted LIBO Rate, and the amount of
interest payable in respect of any subsequent interest computation period
would be less than the Maximum Amount, then the amount of interest payable in
respect of such subsequent interest computation period shall be automatically
increased to the Maximum Amount; provided that at no time shall the aggregate
amount by which interest paid has been increased pursuant to this sentence
exceed the aggregate amount by which interest has been reduced had the
Adjusted LIBO Rate not been limited to the Highest Lawful Rate.
(c) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate for each
Interest Period or day within an Interest Period, as the case may be, shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.07. Default Interest. Notwithstanding any other
provision of this Agreement (except Section 9.09 hereof) and the other Loan
Papers to the contrary, if any Event of Default shall occur and be continuing
hereunder, the Borrower shall pay interest on the Obligations to but
excluding the date of actual payment (after, as well as before, any judgment)
at a rate per annum equal to the lesser of (a) the Highest Lawful Rate and
(b) a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when determined
by reference to the Prime Rate and over a year of 360 days at all other
times) equal to the sum of the Alternate Base Rate plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered
will not adequately and fairly reflect the cost to the Required Lenders of
making or maintaining Eurodollar Loans during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written
or facsimile notice of such determination to the Borrower and the Lenders.
In the event of any such determination, until the Administrative Agent shall
have advised the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 hereof shall be deemed to be a request for
an ABR Borrowing. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Revolving Loan
Commitment.
(a) The Revolving Loan Commitment shall automatically terminate
on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written
or facsimile notice to the Administrative Agent (specifying that the
Revolving Loan Commitment is to be terminated or reduced and the amount of
reduction), the Borrower may at any time in whole permanently terminate, or
from time to time in part permanently reduce, the Revolving Loan Commitment;
provided, however, that (i) each partial reduction of the Revolving Loan
Commitment shall be in a minimum amount of $250,000 or a larger integral
multiple of $100,000, and (ii) the Revolving Loan Commitment shall not be
reduced to an amount that is less than the aggregate outstanding principal
amount of Revolving Loans.
(c) If, as a result of a reduction described in paragraph (b)
above, the aggregate outstanding principal amount of Revolving Loans exceeds
the Revolving Loan Commitment, then the Borrower shall, on the date of such
reduction, repay Revolving Loans in accordance with this Agreement in an
aggregate principal amount sufficient to eliminate such excess.
(d) Each reduction in the Revolving Loan Commitment hereunder
shall be made ratably among the Lenders in accordance with their respective
Pro Rata Percentage of the Revolving Loan Commitment. The Borrower shall
pay, to the Administrative Agent for the account of the applicable Lenders,
on the date of each termination or reduction, the Commitment Fees on the
amount of the Revolving Loan Commitment so terminated or reduced accrued to
but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings.
(a) The Borrower shall have the right at any time upon prior
irrevocable notice to the Administrative Agent (x) not later than 12:00
(noon), Charlotte, North Carolina time, one Business Day prior to conversion,
to convert any Eurodollar Borrowing into an ABR Borrowing, (y) not later than
10:00 a.m., Charlotte, North Carolina time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing
for an additional Interest Period, and (z) not later than 10:00 a.m.,
Charlotte, North Carolina time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to
another permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro
rata among the Lenders in accordance with the respective principal
amounts of the Loans comprising the converted or continued Borrowing;
(ii) if less than all of the outstanding principal amount
of any Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) hereof regarding the principal amount and maximum number
of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and
the Administrative Agent by recording for the account of such Lender
the new Loan of such Lender resulting from such conversion and
reducing the Loan (or portion thereof) of such Lender being converted
by an equivalent principal amount; accrued interest on any Eurodollar
Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.14 hereof;
(v) any portion of a Borrowing maturing or required to
be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of
the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an
ABR Borrowing; and
(vii) after the occurrence and during the continuance of a
Default or an Event of Default, no outstanding Loan may be converted
into, or continued for an additional Interest Period as, a Eurodollar
Loan.
(b) Each notice pursuant to this Section 2.10 shall be
irrevocable and shall refer to this Agreement and specify: (i) the identity
and amount of the Borrowing that the Borrower requests be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as
a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and
(iv) if such Borrowing is to be converted to or continued as a Eurodollar
Borrowing, the Interest Period with respect thereto. If no Interest Period
is specified in any such notice with respect to any conversion to or
continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative
Agent shall advise the Lenders of any notice given pursuant to this Section
2.10 and of each Lender's portion of any converted or continued Borrowing.
If the Borrower shall not have given notice in accordance with this Section
2.10 to continue any Borrowing into a subsequent Interest Period (and shall
not otherwise have given notice in accordance with this Section 2.10 to
convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Prepayment.
(a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing, in whole or in part, upon at least two
Business Days' prior written or facsimile notice (or telephone notice
promptly confirmed by written or facsimile notice) to the Administrative
Agent before 11:00 a.m., Charlotte, North Carolina time; provided, however,
that each partial prepayment shall be in a minimum amount of $250,000 or a
larger integral multiple of $100,000.
(b) In the event of any termination of the Commitments, the
Borrower shall repay or prepay all its outstanding Revolving Loans on the
date of such termination. In the event of any partial reduction of the
Revolving Loan Commitment, then (i) at or prior to the effective date of such
reduction or termination, the Administrative Agent shall notify the Borrower
and the Lenders of the aggregate amount of outstanding Revolving Loans after
giving effect thereto and (ii) if the sum of the aggregate amount of
outstanding Revolving Loans at the time would exceed the Revolving Loan
Commitment, after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, repay or prepay
Revolving Loans in an amount sufficient to eliminate such excess.
(c) Whenever and on each occasion that the Total Exposure
exceeds the Total Commitments, the Borrower will immediately prepay, first,
the Term Loans and, second, the Revolving Loans by the amount necessary to
reduce the Total Exposure to an amount less than or equal to the Total
Commitments.
(d) In the event the amount of any prepayment required to be
made above shall exceed the aggregate principal amount of the applicable
outstanding ABR Loans (the amount of any such excess being called the "Escrow
Amount"), the Borrower shall have the right, in lieu of making such
prepayment in full, to prepay all the outstanding applicable ABR Loans and to
deposit an amount equal to the Escrow Amount with the Administrative Agent in
a cash collateral account maintained by and in the sole dominion and control
of the Administrative Agent. Any amounts so deposited shall be held by the
Administrative Agent as collateral for the Obligations and applied to the
prepayment of outstanding Eurodollar Loans at the end of the current Interest
Periods applicable thereto. On any Business Day on which (x) collected
amounts remain on deposit in or to the credit of such cash collateral account
after giving effect to the payments made on such day and (y) the Borrower
shall have delivered to the Administrative Agent a written request or
telephonic request (which shall be promptly confirmed in writing) that such
remaining collected amounts be invested in the Permitted Investments
specified in such request, the Administrative Agent shall use its reasonable
efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied.
The Borrower shall not have the right to withdraw any amount from such cash
collateral account until such Eurodollar Loans and accrued interest thereon
are paid in full or if a Default or Event of Default then exists or would
result.
(e) Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section 2.11 shall be subject to Section 2.14 hereof
but otherwise without premium or penalty. All prepayments under this Section
2.11 shall be accompanied by accrued interest on the principal amount being
prepaid to the date of payment.
(f) Except as expressly provided in the next succeeding sentence,
upon the consummation of any Asset Disposition by any Obligor or the issuance
or incurrence of any Indebtedness permitted under Section 6.01 hereof, within
three (3) Business Days after such Obligor's (i) receipt of any Net Cash
Proceeds from any such Asset Disposition, (ii) conversion to cash of non-cash
proceeds (whether principal or interest and including securities, release of
escrow arrangements or lease payments) received from any such Asset
Disposition, or (iii) receipt of the proceeds of any such Indebtedness, the
Borrower shall make or cause to be made a mandatory prepayment of the Loans
in an amount equal to such Net Cash Proceeds. No mandatory prepayment under
the preceding sentence shall be required if, within sixty (60) days after the
consummation of any Asset Disposition (other than with respect to any Capital
Stock of the Borrower, the Target or their respective Subsidiaries) that is
made in connection with the anticipated purchase by such Obligor, as the case
may be, of replacement assets of a like kind, the Net Cash Proceeds thereof
have been used by such Person for the replacement of the assets sold by
assets of a like kind and the Borrower shall have delivered to the
Administrative Agent written evidence of the use of the Net Cash Proceeds for
such purchase; provided, further, if the Borrower shall not have provided
evidence of such use or if less than all of the Net Cash Proceeds are used
for such replacement, then a mandatory prepayment will be required to be made
on the sixtieth (60th) day after the consummation of such Asset Disposition
in the amount of such Net Cash Proceeds (or unutilized portion thereof).
(g) Each mandatory prepayment required by clause (f) of this
Section 2.11 shall be allocated and applied to the Loans as follows:
(i) first, to repay the unpaid Term
Loans, and
(ii) if the Term Loans are repaid in full, to repay the Revolving
Loans (and the Revolving Loan Commitment shall be permanently reduced
by the amount of such prepayment).
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if
after the date of this Agreement any change in any Law or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of Law) shall change the basis of taxation of payments to
any Lender of the principal of or interest on any Eurodollar Loan made by
such Lender or any Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income (including,
without limitation, franchise taxes on net income, branch profit taxes and
alternate minimum income taxes) of such Lender by the jurisdiction in which
such Lender is incorporated or has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender
(except any such reserve requirement which is reflected in the Adjusted LIBO
Rate) or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender,
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or to reduce the amount
of any sum received or receivable by such Lender hereunder whether of
principal, interest or otherwise, by an amount deemed by such Lender to be
material, then the Borrower will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that the adoption after
the date hereof of any Law, agreement or guideline regarding capital
adequacy, or any change after the date hereof in any such Law, agreement or
guideline (regardless of whether the change in such Law, agreement or
guideline has been adopted) or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
Governmental Authority has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made to a
level below that which such Lender or such Lender's holding company could
have achieved but for such applicability, adoption, change or compliance
(taking into consideration such Lender's policies and the policies of such
Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower
shall pay to such Lender, such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth in reasonable detail
the basis for computation of the amount or amounts necessary to compensate
such Lender or its holding company, as applicable, as specified in paragraph
(a) or (b) above shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate delivered by such Lender within 10 Business
Days after the Borrower's receipt of the same.
(d) Failure or delay on the part of any Lender to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's right to demand such compensation; provided, however, that in
no event shall the Borrower be obligated to make any payment under this
Section 2.12 in respect of increased costs incurred prior to the period
commencing 90 days prior to the date on which demand for compensation in
respect of such increased costs is first made. In addition, the Borrower
shall not incur liability for additional amounts with respect to changes in
the basis of taxation described above for periods of time before such Lender
becomes aware of the change in such basis except in the case of any
retroactive application of such a change. The protection of this Section
shall be available to each Lender regardless of any possible contention of
the invalidity or inapplicability or the law, agreement, guideline or other
change or condition that shall have occurred or been imposed.
SECTION 2.13. Change in Legality.
(a) Notwithstanding any other provision of this Agreement, if,
after the date hereof, any change in any Law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then,
by written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will
not thereafter (for the duration of such unlawfulness) be made by
such Lender hereunder (or be continued for additional Interest
Periods and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans), whereupon any request for a
Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an additional
Interest Period) shall, as to such Lender only, be deemed a request
for an ABR Loan (or a request to continue an ABR Loan as such for an
additional Interest Period or to convert a Eurodollar Loan into an
ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding
Eurodollar Loans made by it be converted to ABR Loans, in which event
all such Eurodollar Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Loan made by such
Lender, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.
SECTION 2.14. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (a) such Lender
receiving or being deemed to receive any amount on account of the principal
of any Eurodollar Loan prior to the end of the Interest Period in effect
therefor, or (b) the conversion of any Eurodollar Loan to an ABR Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in
each case other than on the last day of the Interest Period in effect
therefor, or (c) any Eurodollar Loan to be made by such Lender (including any
Eurodollar Loan to be made pursuant to a conversion or continuation under
Section 2.10 hereof) not being made after notice of such Loan shall have been
given by the Borrower hereunder for any reason other than default by a Lender
(any of the events referred to in this sentence being called a "Breakage
Event"). In the case of any Breakage Event, such loss shall be deemed to
be include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is
the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that
would have been in effect) for such Loan over (ii) the amount of interest
likely to be realized by such Lender in redeploying the funds released or not
utilized by reason of such Breakage Event for such period. A certificate of
any such Lender shall be delivered to the Borrower and shall be conclusive
absent manifest error, so long as such certificate sets forth in reasonable
detail any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.14 and the basis of computation of the amount or
amounts necessary to compensate such Lender.
SECTION 2.15. Pro Rata Treatment. Except as required under
Section 2.13 hereof, each Borrowing, each payment or prepayment of principal
of any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type
shall be allocated pro rata among the Lenders in accordance with their
respective applicable Commitments (or, if such Commitments shall have expired
or been terminated, in accordance with the respective principal amounts of
their outstanding Loans). Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may,
in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any Debtor Relief Law or other similar Law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans as a result of which the unpaid principal portion of its Loans
shall be proportionately less than the unpaid principal portion of the Loans
of any other Lender, it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender
the purchase price for, a participation in the Loans of such other Lender, so
that the aggregate unpaid principal amount of the Loans and participations in
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Loans then outstanding as the principal amount
of its Loans prior to such exercise of banker's lien, setoff or counterclaim
or other event was to the principal amount of all Loans outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments
shall be made pursuant to this Section 2.16 and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower
in the amount of such participation.
SECTION 2.17. Payments.
(a) The Borrower shall make each payment (including principal of
or interest on any Borrowing or any Fees or other amounts) hereunder not
later than 12:00 (noon), Charlotte, North Carolina time, on the date when due
in immediately available dollars, without setoff, defense or counterclaim.
Each such payment shall be made to the Administrative Agent at its offices at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) Whenever any payment (including principal of or interest on
any Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may
be made on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of interest or Fees, if
applicable.
SECTION 2.18. Taxes.
(a) Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all current or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto excluding (i) income taxes imposed on the
net income (including, without limitation, branch profit taxes and
alternative minimum income taxes of the Administrative Agent or any Lender
(or any transferee or assignee thereof, including a participation holder (any
such entity, a "Transferee")), (ii) franchise taxes imposed on the net income
of the Administrative Agent or any Lender (or Transferee), in each case by
the jurisdiction under the Laws of which the Administrative Agent or such
Lender (or Transferee) is organized or any political subdivision thereof or
by the jurisdiction in which the applicable lending or issuing office of the
Administrative Agent or such Lender (or Transferee) is located or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or
individually, being called "Taxes"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder to the
Administrative Agent or any Lender (or Transferee), (i) the sum payable shall
be increased by the amount (an "additional amount") necessary so that after
making all required deductions (including deductions applicable to such
additional amount payable under this Section 2.18) the Administrative Agent
or such Lender (or Transferee), as the case may be, shall receive an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with Applicable Law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with Applicable Law any current or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from and payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, the
Loan Papers ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent and
each Lender (or Transferee) for the full amount of Taxes and Other Taxes paid
by the Administrative Agent or such Lender (or Transferee), as the case may
be, and any liability (including penalties, interest and expenses (including
reasonable attorney's fees and expenses)) arising from or with respect to any
such Taxes or Other Taxes paid, whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant Governmental Authority;
provided, however, that in no event shall the Borrower be obligated to
reimburse the Administrative Agent or any Lender for any Tax or Other Tax
pursuant to this Section 2.18 which was due and payable more than 90 days
prior to the date on which demand for reimbursement in respect thereof is
first made. A certificate as to the amount of such payment or liability
prepared by the Administrative Agent or a Lender (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent or any Lender (or
Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent or a Lender (or Transferee)
receives a refund in respect of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section 2.18, it shall within 30
days from the date of such receipt pay over to the Borrower (a) such refund
(but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 2.18 with respect to the Taxes or
Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Lender (or Transferee) and (b)
interest paid by the relevant Governmental Authority with respect to such
refund; provided, however, that the Borrower, upon the request of the
Administrative Agent or such Lender (or Transferee), shall repay the amount
paid over to the Borrower (plus penalties, interest or other charges) to the
Administrative Agent or such Lender (or Transferee) in the event the
Administrative Agent or such Lender (or Transferee) is required to repay such
refunds to such Governmental Authority. If the Borrower determines in good
faith that a reasonable basis exists for contesting any Tax or Other Tax, the
Administrative Agent or the Lender (or Transferee), as applicable, shall
cooperate with the Borrower in challenging such Tax or Other Tax at the
Borrower's expense if requested by the Borrower (it being understood and
agreed that the Administrative Agent or the Lender (or Transferee), as
applicable, shall have no obligation to contest or responsibility for
contesting such Tax or Other Tax).
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrower to the relevant Governmental Authority,
the Borrower will deliver to the Administrative Agent, at its address
referred to in Section 9.01 hereof, the original or a certified copy of any
receipt actually issued by such Governmental Authority evidencing payment
thereof.
(f) Each Lender (or Transferee) that is organized under the Laws
of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and
the Administrative Agent two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest," a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S.
Lender delivers a Form W-8, a certificate containing representations
regarding the status of such Non-U.S. Lender as not being a bank for purposes
of Section 881(c) of the Code, as not being a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and as not
being a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or reduced
rate of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the
date, if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Notwithstanding any other provision of this Section 2.18(f), a Non-
U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.18(f) that such Non-U.S. Lender is not legally able to deliver.
(g) The Borrower shall not be required to indemnify any Non-U.S.
Lender or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to
United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that
is a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office,
the date such Non-U.S. Lender designated such New Lending Office with respect
to a Loan; provided, however, that this paragraph (g) shall not apply (x) to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation
made at the request of the Borrower and (y) to the extent the indemnity
payment or additional amounts any Transferee, or any Lender (or Transferee),
acting through a New Lending Office, would be entitled to receive (without
regard to this paragraph (g)) do not exceed the indemnity payment or
additional amounts that the Person making the assignment, participation or
transfer to such Transferee, or the Lender (or Transferee) making the
designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts would not have arisen but
for a failure by such Non-U.S. Lender to comply with the provisions of
paragraph (f) above.
(h) Nothing contained in this Section 2.18 shall require any
Lender (or Transferee) or the Administrative Agent to make available any of
its tax returns (or any other information that it deems to be confidential or
proprietary).
(i) Each Bank represents that, to the best of its knowledge, it
is not a party to any "conduit financing arrangement" as defined under
applicable Treasury Regulations promulgated under the Code.
(j) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof ("U.S.
Taxes") in respect of payment of any obligations due to such Non-U.S. Lender
under this Agreement ("Lender Obligations") if the Lender Obligations were in
registered form for U.S. Federal income tax purposes shall request the
Borrower (through the Administrative Agent), and the Borrower agrees
thereupon, to exchange any promissory note(s) evidencing such Lender
Obligations for promissory note(s) registered as provided in subsection (k)
below (each, a "Registered Note"). Registered Notes may not be exchanged for
promissory notes that are not Registered Notes.
(k) From and after the time, if any, when any Lender requests a
Registered Note, the Borrower shall maintain, or cause to be maintained, a
register (the "Register") on which it enters the name of the registered owner
of the Lender Obligation(s) evidenced by each Registered Note. A Registered
Note and the Lender Obligation(s) evidenced thereby may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer of such Registered Note and the Lender Obligation(s)
evidenced thereby on the Register (and each Registered Note shall expressly
so provide). Any assignment or transfer of all or part of such Lender
Obligation(s) and the Registered Note(s) evidencing the same shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Registered Note(s) evidencing such Lender Obligation(s),
duly endorsed by (or accompanied by a written instrument of assignment or
transfer duly executed by) the Registered Noteholder thereof, and thereupon
one or more new Registered Note(s) in the same aggregate principal amount
shall be issued to the designated assignee(s) or transferee(s) pursuant to,
in accordance with, and subject to the restrictions of, Section 9.04 hereof.
Prior to the due presentment for registration of assignment or transfer of
any Registered Note, the Borrower and the Administrative Agent shall treat
the Person in whose name such Lender Obligation(s) and the Registered Note(s)
evidencing the same is registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding
any notice to the contrary. The Register shall be available for inspection
by the Administrative Agent and any Lender at any reasonable time upon
reasonable prior notice.
SECTION 2.19. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.
(a) In the event (i) any Lender delivers a certificate
requesting compensation pursuant to Section 2.12 hereof, (ii) any Lender
delivers a notice described in Section 2.13 hereof or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender pursuant to Section 2.18 hereof, the
Borrower may, at its sole expense and effort (including with respect to the
processing and recordation fee referred to in Section 9.04(b) hereof), upon
notice to such Lender and the Administrative Agent, require such Lender to
transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04 hereof), all of its interests, rights
and obligations under this Agreement to an assignee that shall assume such
assigned obligations which assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) such assignment shall not
conflict with any Law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, and (z) the Borrower or such assignee
shall have paid to the affected Lender in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date
of such payment on the outstanding Loans of such Lender plus all Fees and
other amounts accrued for the account of such Lender hereunder (including any
amounts under Section 2.12 hereof and Section 2.14 hereof); provided further
that, if prior to any such transfer and assignment the circumstances or event
that resulted in such Lender's claim for compensation under Section 2.12
hereof or notice under Section 2.13 hereof or the amounts paid pursuant to
Section 2.18 hereof, as the case may be, cease to cause such Lender to suffer
increased costs or reductions in amounts received or receivable or reduction
in return on capital, or cease to have the consequences specified in Section
2.13, or cease to result in amounts being payable under Section 2.18 hereof,
as the case may be, including as a result of any action taken by such Lender
pursuant to paragraph (b) below), or if such Lender shall waive its right to
claim further compensation under Section 2.12 hereof in respect of such
circumstances or event or shall withdraw its notice under Section 2.13 hereof
or shall waive its right to further payments under Section 2.18 hereof in
respect of such circumstances or event, as the case may be, then such Lender
shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender shall request compensation under Section
2.12 hereof, (ii) any Lender delivers a notice described in Section 2.13
hereof or (iii) the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority on account of any Lender pursuant to
Section 2.18, then such Lender shall use reasonable efforts (which shall not
require such Lender to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies
or legal or regulatory restrictions or suffer any disadvantage or burden
deemed by it to be significant) (x) to file any certificate or document
reasonably requested in writing by the Borrower or (y) to assign its rights
and delegate and transfer its obligations hereunder to another of its
offices, branches or affiliates, if such filing or assignment would reduce
its claims for compensation under Section 2.12 hereof or enable it to
withdraw its notice pursuant to Section 2.13 hereof or would reduce accounts
payable pursuant to Section 2.18 hereof, as the case may be, in the future.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such filing or assignment, delegation
and transfer.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Administrative Agent and
each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of its
Subsidiaries (a) is a corporation duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its organization, (b) has
all requisite power and authority to own its property and assets and to carry
on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and
(d) has the corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the other Loan Papers, the Merger
Agreement, as appropriate, and each other agreement or instrument
contemplated thereby to which it is or will be a party and, in the case of
the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower of this Agreement, the promissory notes delivered
to the Lenders evidencing the Loans, and the Merger Agreement, the Borrowings
by the Borrower hereunder, the granting by the Borrower and the other
Obligors of all Liens securing the Obligations and the Loans, and the
execution of all Loan Papers and each Obligor party thereto (collectively,
the "Transactions"): (a) have been duly authorized by all requisite
partnership, membership, corporate and, if required, stockholder action, as
applicable, and (b) will not (i) violate (A) any provision of Law, statute,
rule or regulation, or of the certificate or articles of incorporation or
other constitutive documents, by-laws or organizational documents of the
Borrower or any of its Subsidiaries, (B) any order of any Governmental
Authority or (C) any provision of any indenture, material agreement or other
material instrument to which the Borrower or any Subsidiary of the Borrower
is a party or by which any of them or any of their property is or may be
bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under any such indenture, agreement or other instrument or
(iii) result in the creation or imposition of any Lien upon or with respect
to any property or assets now owned or hereafter acquired by the Borrower or
any Subsidiary of the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms. All other Loan Papers have been duly executed and
delivered by the Borrower and each of the Obligors, as appropriate, and each
constitutes the legal, valid and binding obligation of the Borrower and each
Obligor, as appropriate, enforceable against the Borrower and each Obligor,
as appropriate, in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions as of the Closing Date, except for such as have been made or
obtained and are in full force and effect.
SECTION 3.05. Financial Statements.
(a) The unaudited pro forma balance sheet of the Target as of
November 2, 1996, a copy of which has been furnished to the Administrative
Agent, is complete and correct in all material respects and has been prepared
on the basis described therein and otherwise in conformity with generally
accepted accounting principles consistently applied and shows the financial
position of the Target as if the Merger had occurred on November 2, 1996.
(b) The Borrower has heretofore furnished to the Lenders the
consolidated balance sheets and statements of income and equity and cash flow
of the Target (i) as of and for the fiscal year ended October 28, 1995,
audited by and accompanied by the opinion of Ernst & Young, LLP, independent
public accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended July 31, 1996, certified by the Target's chief
financial officer.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, financial
condition, or material agreements of Holding, the Borrower and any of its
Subsidiaries, taken as a whole, since October 28, 1995.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all its material
properties and assets, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or
to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02 hereof.
(b) Each of the Borrower and its Subsidiaries has complied with
all material obligations under all material leases to which it is a party and
all such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
(c) Each of the Borrower and its Subsidiaries owns or possesses,
or could obtain ownership or possession of, on terms not materially adverse
to it, all patents, trademarks, service marks, trade names, copyrights,
licenses and rights with respect thereto necessary for the present conduct of
its business, without any known conflict with the rights of others, and free
from any burdensome restrictions, except where such conflicts and
restrictions could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.08. The Subsidiaries. Schedule 3.08 hereto sets forth
as of the date hereof a list of all Subsidiaries of the Borrower, and the
percentage ownership interest of the Borrower therein. As of the date
hereof, the shares of Capital Stock or other ownership interests so indicated
on Schedule 3.08 are fully paid and non-assessable and are owned by the
Borrower, directly or indirectly, free and clear of all Liens.
SECTION 3.09. Litigation; Compliance with Laws.
(a) Except as set forth on Schedule 3.09 hereof, there are not
any actions, suits or proceedings at Law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting Holding, the Borrower or any Subsidiary of
the Borrower, or any business, property or rights of any such Person, (i)
that involve this Agreement or the Transactions or (ii) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.
(b) None of the Borrower nor any of the Subsidiaries of the
Borrower , or any of their respective material properties or assets is in
violation of, nor will the continued operation of their material properties
and assets as currently conducted violate, any Law or is in default with
respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements.
(a) Neither the Borrower nor any of the Subsidiaries of the
Borrower is a party to any agreement or subject to any corporate restriction
that, since October 28, 1995, has resulted or would reasonably be expected to
result in a Material Adverse Effect, except as disclosed on Schedule 3.10
hereof.
(b) Neither the Borrower nor any of the Subsidiaries of the
Borrower is in default in any manner under any provision of any indenture or
other agreement or instrument evidencing Indebtedness, or any other material
agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could reasonably
be expected to result in a Material Adverse Effect.
(c) Each of the Merger Agreement, the Target Revolving Facility
and the Merger Commitment are in full force and effect and the Merger
Agreement and the Target Revolving Facility constitute legal, valid and
binding obligations of the parties thereto enforceable against such parties
in accordance with its terms. Neither the Borrower or the other parties to
the Merger Agreement, the Target Revolving Facility or the Merger Commitment
is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained therein, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute such a default.
SECTION 3.11. Federal Reserve Regulations.
(a) Neither the Borrower nor any of the Subsidiaries of the
Borrower is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
for any purpose that entails a violation of, or that is inconsistent with,
the provisions of the Regulations of the Board, including Regulation G, T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower nor any Subsidiary of the Borrower is (a)
an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds
of the Loans only for the purposes specified in the preamble to this
Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower, and each
Subsidiary of the Borrower, has filed or caused to be filed all Federal and
material state, local and foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes due and payable
by it and all assessments received by it, except taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower
or the Target or such Subsidiary of the Borrower, as applicable, shall have
set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of the written
information, reports, financial statements, exhibits or schedules prepared by
the Obligors and furnished to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement and the other Loan Papers
or in connection with any of the Transactions, or included herein or
delivered pursuant hereto contained, contains or will contain when furnished
any material misstatement of fact or omitted, omits or will omit when
furnished to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were, are or will
be made, not misleading.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of the Borrower or any of
its Subsidiaries which would be material to the Borrower and its Subsidiaries
on a consolidated basis.
SECTION 3.17. Solvency.
(a) Immediately after the consummation of the Transactions and
the other transactions to occur on the Closing Date and immediately following
the making of each Loan made and after giving effect to the application of
the proceeds thereof, (i) the fair value of the assets of the Borrower and
the Subsidiaries of the Borrower on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of the Borrower and the Subsidiaries of the Borrower
on a consolidated basis; (ii) the present fair salable value of the property
of the Borrower and the Subsidiaries of the Borrower on a consolidated basis
will be greater than the amount that will be required to pay the probable
liability of the Borrower and the Subsidiaries of the Borrower on a
consolidated basis on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) the Borrower and the Subsidiaries of the
Borrower on a consolidated basis will be able to pay their debts and
liabilities, direct, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) the Borrower and the
Subsidiaries of the Borrower on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be
conducted following the Closing Date.
(b) The Borrower does not intend to, and does not believe that
it or any of its Subsidiaries will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing and amounts of cash
to be received by it or any such Subsidiary and the timing and amounts of
cash to be payable on or in respect of its Indebtedness or the Indebtedness
of any such Subsidiary.
SECTION 3.18. Insurance. Schedule 3.18 hereto sets forth a true,
complete and correct description of all insurance maintained by or for the
Borrower or for or by its Subsidiaries as of the date hereof and the Closing
Date. As of each such date, such insurance is in full force and effect and
all premiums have been duly paid. The Borrower and its Subsidiaries have
insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
SECTION 3.19. Labor Matters. As of the date hereof and the
Closing Date, there are no strikes, lockouts or slowdowns against the
Borrower or any Subsidiary of the Borrower pending or, to the knowledge of
the Borrower, threatened which could reasonably be expected to have a
Material Adverse Effect. The hours worked by and payments made to employees
of the borrower and the Subsidiaries of the Borrower have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign Law dealing with such matters. All payments due from
the Borrower or any Subsidiary of the Borrower, or for which any claim may be
made against the Borrower or any Subsidiary of the Borrower, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Borrower or such
Subsidiary. The consummation of the Transactions to be consummated on or
prior to the Closing Date will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective
bargaining agreement to which the Borrower or any Subsidiary of the Borrower
is bound.
SECTION 3.20. Environmental Matters.
(a) The properties owned, operated or leased by the Borrower and
the Subsidiaries of the Borrower (the "Properties") do not contain any
Hazardous Materials in amounts or concentrations which (i) constitute, or
constituted a violation of, or (ii) could reasonably be expected to give rise
to liability under, Environmental laws, which violations and liabilities, in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(b) All Environmental Permits have been obtained and are in
effect with respect to the Properties and operations of the Borrower and the
Subsidiaries of the Borrower, and the Properties and all operations of the
Borrower and the Subsidiaries of the Borrower are in compliance, and in the
last two years have been in compliance, with all Environmental Laws and all
necessary Environmental Permits, except to the extent that such noncompliance
or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) Neither the Borrower nor any of the Subsidiaries of the
Borrower has received any notice of an Environmental Claim in connection with
the Properties or the operations of the Borrower or the Subsidiaries of the
Borrower or with regard to any Person whose liabilities for environmental
matters the Borrower or the Subsidiaries of the Borrower has retained or
assumed, in whole or in part, contractually, which, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, nor do the
Borrower or the Subsidiaries of the Borrower have knowledge that any such
notice will be received or is being threatened;
(d) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of the Properties in a manner that could
reasonably be expected to give rise to liability under any Environmental Law,
nor have the Borrower or the Subsidiaries of the Borrower retained or assumed
any liability contractually, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which transportation, generation,
treatment, storage or disposal, or retained or assumed liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.21. Survival of Representations and Warranties, etc..
All representations and warranties made under this Agreement and the other
Loan Papers shall be deemed to be made at and as of the Closing Date and at
and as of the date of each Revolving Loan, and each shall be true and correct
when made, except to the extent (a) previously fulfilled in accordance with
the terms hereof, (b) subsequently inapplicable, or (c) previously waived in
writing by the Administrative Agent and the Lenders with respect to any
particular factual circumstance. The representations and warranties made
under this Agreement and the other Loan Papers shall be deemed applicable to
each Subsidiary of the Borrower, as of the formation or acquisition of such
Subsidiary and at and as of each date the representations and warranties are
remade pursuant to this provision. All representations and warranties made
under this Agreement and the other Loan Papers shall survive, and not be
waived by, the execution hereof by the Administrative Agent and the Lenders,
any investigation or inquiry by the Administrative Agent or any Lender, or by
the making of any Loan under this Agreement and the other Loan Papers.
SECTION 3.22. Incorporation of Merger Agreement
Representations.
Each of the representations and warranties made by the Target and the
Borrower in the Merger Agreement are true and correct in all material
respects as of the Closing Date and such representations and warranties are
hereby incorporated herein by this reference with the same effect as though
set forth in their entirety herein.
ARTICLE IV
Conditions of Lending
---------------------
The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
(each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 hereof, as applicable.
(b) The representations and warranties set forth in Article III
hereof and in each other Loan Paper shall be true and correct in all material
respects on and as of the date of such Credit Event with the same effect as
though made on and as of such date, except to the extent (i) such
representations and warranties expressly relate to an earlier date, (ii)
previously fulfilled in accordance with the terms hereof, (iii) subsequently
inapplicable, or (iv) previously waived in writing by the Administrative
Agent and the Lenders with respect to any particular factual circumstance,
and there shall have occurred no event which caused a Material Adverse
Effect.
(c) The Borrower shall be in compliance in all material respects
with the terms and provisions set forth herein on its part to be observed or
performed, and at the time of and immediately after such Credit Event, no
Event of Default or Default shall have occurred and be continuing.
(d) Each guarantee of the Obligations executed by a Guarantor
shall be in full force and effect.
Each Credit Event shall be deemed to constitute a representation and warranty
by the Borrower on the date of such Credit Event as to the matters specified
in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself and the Lenders, a favorable written opinion of counsel for each of
the Obligors (i) dated the Closing Date, and (ii) covering such other matters
relating to the Loan Paper and the Transactions as the Administrative Agent
shall reasonably request, and in form and substance acceptable to the
Administrative Agent and its counsel. The opinions shall be addressed to the
Administrative Agent and the Lenders.
(b) All legal matters incident to this Agreement, the Borrowings
and extensions of credit hereunder shall be reasonably satisfactory to the
Lenders and to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of Holding and each of its Subsidiaries, certified as of a recent
date by the Secretary of State of the state of its organization, and a
certificate as to the good standing of Holding and each of its Subsidiaries
as of a recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of each of the Obligors dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of
the by-laws of such Obligor as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Obligor authorizing the
execution, delivery and performance of the Loan Papers to which such Obligor
is a party and, as applicable, the Merger Agreement, and the borrowings
hereunder, as appropriate, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of such Obligor has or have not been
amended since the date of the last amendment thereto shown on the certificate
of good standing furnished pursuant to clause (i) above, (D) as to the
incumbency and specimen signature of each officer executing this Agreement,
each Loan Paper, or any other document delivered in connection herewith on
behalf of such Obligor and (E) that attached thereto is a true and complete
copy of each of the Merger Agreement and the Merger Commitment as in effect
on the Closing Date; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Lenders or ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Administrative
Agent, may reasonably request.
(d) The Administrative Agent shall have received a Compliance
Certificate, dated the Closing Date and signed by a Financial Officer of the
Borrower, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 hereof and paragraphs (f), (h), (i),
and (j) of this Section 4.02 and certifying to the fact that consummating the
transactions contemplated by this Agreement would not cause a Default or
Event of Default.
(e) Each Lender, NCMI and the Administrative Agent shall have
received payment in full of all Fees and other amounts due and payable on or
prior to the Closing Date.
(f) The Borrower shall have delivered to the Administrative
Agent duly executed copies of each of the following documents and agreements,
in form and substance satisfactory to the Administrative Agent: this
Agreement; the applicable Fee Letters; the Security Agreement, the Pledge
Agreement, accompanied by stock certificates evidencing the Capital Stock
pledged thereby, together with stock powers executed in blank; and guaranties
of the Obligations executed by the Guarantors. The Borrower shall have
delivered promissory notes to each Lender evidencing the Loans, in form and
substance satisfactory to each such Lender and any other Loan Papers
reasonably required by any Lender in connection with this Agreement.
(g) All governmental and third party approvals necessary or
advisable in connection with the Transactions and the continuing operations
of Holding and its Subsidiaries shall have been obtained and be in full force
and effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any Governmental Authority which would
restrain, prevent or otherwise impose adverse conditions on the Transactions.
(h) No action, suit, litigation or similar proceeding by or
before any Governmental Authority shall exist or, in the case of litigation
by a Governmental Authority, be threatened, with respect to the Transactions
contemplated thereby or otherwise, which would be likely in the reasonable
opinion of the Required Lenders to have a Material Adverse Effect.
(i) The structure and documentation of the Transactions
contemplated thereby, and all corporate and other proceedings taken or to be
taken and all documents incidental thereto, shall be reasonably satisfactory
in form and substance to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Administrative Agent, and each Lender shall have received
copies of all such documents as such Lender, acting through the
Administrative Agent, may reasonably request. All transactions necessary to
consummate the Transactions shall have been completed.
(j) The Administrative Agent shall have received copies of a
description in detail satisfactory to the Administrative Agent describing all
material pending litigation and, to the knowledge of the Borrower, threatened
litigation in which each Obligor is a defendant.
(k) The Administrative Agent on behalf of the Secured Parties
shall have a first priority perfected security interest in the Collateral and
the Administrative Agent shall have received:
(i) an acknowledgment copy, or other evidence
satisfactory to the Administrative Agent, of the proper filing,
registration or recordation of each document (including each Uniform
Commercial Code financing statement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in each jurisdiction in which the filing, registration or
recordation is so required or requested in order to created in favor
of the Administrative Agent for the benefit of the Secured Parties a
valid, legal and perfected security interest in or Lien on the
Collateral;
(ii) certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent reports from an independent
search service satisfactory to the Administrative Agent, listing (A)
any judgment naming the Holding or any Subsidiary as judgment debtor,
(B) any tax lien that names the Holding or any Subsidiary as a
delinquent taxpayer in any of the jurisdictions referred to in clause
(iii) above and (C) any Uniform Commercial Code financing statement
that names the Holding or any Subsidiary as debtor filed in any of
the jurisdictions referred to in clause (i) above; and
(iii) appropriate duly executed termination statements
(Form UCC-3) signed by all persons disclosed as secured parties in
the jurisdictions referred to in clause (i) above (other than holders
of Liens permitted under Section 6.02) in form for filing under the
Uniform Commercial Code of such jurisdictions.
(l) (i) The Equity Financing shall have been consummated on
terms and conditions reasonably acceptable to the Administrative Agent; (ii)
the Administrative Agent shall have received satisfactory evidence that the
Borrower has received a net capital contribution in cash in respect of common
and preferred equity in an amount, which when added to the Loans borrowed on
the Closing Date, sufficient to permit the Borrower to consummate the Stock
Purchase in compliance with all applicable Laws, rules and resolutions
(including, without limitations, Regulations G, T, U and X), under the terms
and conditions acceptable to the Administrative Agent and the Lenders in
their sole discretion; and (iii) (A) the Target Revolving Facility shall have
been completed pursuant to the terms set forth in the commitment letter dated
November 26, 1996 provided by Fleet National Bank and on such other terms as
are reasonably satisfactory to the Administrative Agent, (B) $16,000,000
shall have been funded thereunder to finance the Note Retirement and (C) such
facility shall be in full force and effect.
(m) Upon consummation of the Initial Stock Purchase, the
Additional Stock Purchase and the Note Retirement, the Borrower shall own
approximately 63% of the issued and outstanding shares of Target Stock
(calculated on a fully diluted basis), which shall be sufficient (pursuant to
the Target's charter documents and applicable law) to enable the Borrower
(without the vote of any other shareholder) to approve the Merger; and the
Administrative Agent shall have received satisfactory evidence that the Board
of Directors of the Target shall have approved the Stock Purchase, the Note
Retirement, the Merger and the other transactions contemplated by this
Agreement.
(n) The Administrative Agent shall have received a copy of a
Federal Reserve Form U-1 completed and duly executed by the Borrower and each
Lender.
(o) The Administrative Agent shall have received the audited and
unqualified financial statements of the Target as of November 2, 1996 for the
fiscal year then ended, prepared in accordance with GAAP and Regulation S-X
under the Securities Act of 1933, as amended, evidencing to the
Administrative Agent's satisfaction that the Target's operating income before
depreciation and amortization (calculated, on a pro forma basis after giving
effect to the Transaction and to the acquisition of certain assets of Big
Bear Stores, in accordance with Regulation S-X) for the fiscal year ended
November 2, 1996 is at least $21,000,000.
ARTICLE V
Affirmative Covenants
---------------------
The Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the Obligations shall have been paid in full, the Borrower
will, and will cause each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties.
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.05 hereof.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; comply in
all material respects with all applicable Laws, rules, regulations and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property
material to the conduct of such business and keep such property in good
repair, working order and condition and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties insured in
accordance with industry standards at all times by financially sound and
reputable insurers; maintain such other insurance, to such extent and against
such risks, including (a) fire and other risks insured against by extended
coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations, and (b) public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may
be required by Law.
SECTION 5.03. Obligations and Taxes. Pay and discharge promptly
when due all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits or in respect of its property before
the same shall become delinquent or in default, as well as all lawful claims
for labor, materials and supplies or otherwise that, if unpaid, might give
rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any
such tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and the
Borrower shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of
the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, Holding's
consolidated balance sheet and related consolidated statement of income,
showing the financial condition of Holding and its consolidated Subsidiaries
as of the close of such fiscal year and the results of their operations
during such year, accompanied by a certificate of one of Holding's Financial
Officers to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of Holding and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, Holding's consolidated balance sheet and
related consolidated statement of earnings showing the financial condition of
Holding and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of their operations during such fiscal quarter and
the then elapsed portion of the fiscal year, all certified by one of
Holding's Financial Officers as fairly presenting the financial condition and
results of operations of Holding and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a Compliance Certificate of a Financial
Officer of the Borrower certifying that no Event of Default or Default has
occurred or, if such an Event of Default or such a Default has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and setting forth computations in
reasonable detail (which detail shall be reasonably satisfactory to the
Administrative Agent) confirming compliance with the covenants contained in
Sections 6.01, 6.03, 6.04, 6.05, 6.06 and 6.12 hereof;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements, registration statements
(other than on Form S-8) and other similar materials filed by Holding or any
Subsidiary of Holding with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the function of said
Commission, or with any national securities exchange, or distributed
generally to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of Holding
or any Subsidiary of Holding, or compliance with the terms of this Agreement,
the Merger Agreement and the other Loan Papers, as the Administrative Agent
or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to be
taken with respect thereto;
(b) the (i) filing or commencement of, or any written threat or
notice of intention of any Person to file or commence, any action, suit or
proceeding, whether at Law or in equity or by or before any Governmental
Authority, or (ii) the making of any written claim, in either case against
the Borrower or any Affiliate of the Borrower, as to which there is a
reasonable possibility of an adverse determination and which if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development (including, without limitation, developments
in pending litigation, developments in pending or threatened labor disruption
that has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish
to the Administrative Agent (i) as soon as possible after, and in any event
within 10 days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows or has reason to know that, any ERISA Event has occurred
that, alone or together with any other ERISA Event could reasonably be
expected to result in liability of the Borrower in an aggregate amount
exceeding $10,000, a statement of a Financial Officer of the Borrower setting
forth details as to such ERISA Event and the action, if any, that the
Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of Law are made
of all dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of its Subsidiaries and the Target and
its Subsidiaries, to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior written notice, to
visit and inspect the financial records and the properties of the Borrower or
any Subsidiary of the Borrower at reasonable times and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by the Administrative Agent or any
Lender to discuss the affairs, finances and condition of the Borrower or any
Subsidiary of the Borrower with the officers thereof and (with the
concurrence of the Administrative Agent) independent accountants therefor
(provided that the Borrower has the right to have a representative present
for any meeting with the Borrower's independent accountants).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws.
(a) Comply, and exercise best efforts to cause all lessees and
other Persons occupying its Properties to comply, in all material respects
with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; and obtain and renew all material Environmental
Permits necessary for its operations and Properties; and conduct any Remedial
Action to the extent required by and in accordance with Environmental Laws;
provided, however, that none of the Borrower or any of its Subsidiaries shall
be required to undertake any Remedial Action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(b) If a Default caused by reason of a breach of paragraph (a)
above or Section 3.20 hereof shall have occurred and be continuing, at the
request of the Required Lenders through the Administrative Agent, provide to
the Lenders within 45 days after such request, at the expense of the
Borrower, a "Phase 1" environmental site assessment report for the Properties
which are the subject of such Default prepared by an environmental consulting
firm reasonably acceptable to the Administrative Agent and indicating, to the
extent consistent with such "Phase 1" assessment, the presence or absence of
Hazardous Materials and the estimated cost of any compliance or Remedial
Action in connection with such Properties.
SECTION 5.10. Compliance with Material Contracts. Except as set
forth in Section 6.07 hereof, maintain in full force and effect (including
exercising any available renewal option), and without amendment or
modification, each material contract, unless the failure so to maintain any
such material contract or replacement contract or contracts thereof (or any
amendment or modification thereto) could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
SECTION 5.11 Further Assurances. (a) Execute any and all further
documents, agreements and instruments, and take all further action, which may
be required under applicable law, or which the Required Lenders or the
Administrative Agent may reasonably request, in order to effectuate the
transactions contemplated by this Agreement and in order to grant, preserve,
protect and perfect the validity and first priority of the Liens created or
intended to be created by the Security Agreement and the Pledge Agreement.
(b) Without limitation of Section 5.11(a), perform any and all
acts and execute any and all documents (including the execution, amendment or
supplementation of any financing statement and continuation statement or
other statement) for filing under the provisions of the Uniform Commercial
Code and the rules and regulations thereunder, or any other statute, rule or
regulation of any applicable foreign, federal, state or local jurisdictions,
including any filings in the United States Patent and Trademark Office or
similar foreign office, which are necessary (or reasonably requested by the
Administrative Agent), from time to time, in order to grant and maintain in
favor of the Administrative Agent for the benefit of the Secured Parties a
first priority perfected security interest in each item of the Collateral.
(c) Without limitation of Section 5.11(a), deliver or cause to
be delivered to the Lenders from time to time such other documentation,
consents, authorizations, approvals and orders in form and substance
reasonably satisfactory to the Administrative Agent, as the Administrative
Agent shall deem reasonably necessary or advisable to perfect or maintain the
Liens for the benefit of the Secured Parties, including assets which are
required to become Collateral after the Closing Date.
SECTION 5.12. The Merger. Use reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper and advisable under Applicable Law to (i) consummate and
make effective the Merger as promptly as practicable following the Closing
Date and (ii) to cause the Target to comply with the terms and conditions of
the Merger Agreement, the Target Revolving Facility and the Merger
Commitment.
ARTICLE VI
Negative Covenants
------------------
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the Obligations have been paid in full and all amounts drawn
thereunder have been reimbursed in full:
SECTION 6.01. Indebtedness. The Borrower will not, and will not
cause or permit any Subsidiaries of the Borrower to, issue any Preferred
Stock, or to issue, incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness of the Borrower and any Subsidiary of the
Borrower for borrowed money existing on the date hereof and set forth in
Schedule 6.01 hereto, but not any extensions, renewals or replacements of
such Indebtedness; and
(b) Indebtedness contemplated by this Agreement, the Target
Revolving Facility, the Merger Commitment and the Merger Agreement.
SECTION 6.02. Liens. The Borrower will not, and will not cause or
permit any of its Subsidiaries to, create, incur, assume or permit to exist
any Lien on any of its property or assets (including on the stock or other
securities of any Person, including any Subsidiary of the Borrower) now owned
or hereafter acquired by it or them or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule 6.02
hereto; provided that such Liens shall secure only those obligations which
they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition and (ii) such Lien does not apply to any
other property or assets of such Subsidiary;
(c) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03 hereof;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
and securing obligations that are not due and payable or which are being
contested in compliance with Section 5.03 hereof, which, in the aggregate,
are not substantial in amount and do not materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(e) pledges and deposits made in the ordinary course of business
in compliance with workmen's compensation, unemployment insurance and other
social security Laws or regulations;
(f) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries; and
(g) Liens arising in connection with this Agreement, the Target
Revolving Facility and the Merger Agreement.
SECTION 6.03. Sale and Lease Back Transactions. The Borrower will
not, and will not cause or permit any of its Subsidiaries to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.
SECTION 6.04. Investments, Acquisitions, Loans and Advances. The
Borrower will not, and will not cause or permit any of its Subsidiaries to,
purchase, hold or acquire any Capital Stock, evidences of indebtedness (other
than restructured receivables) or other securities of, make or permit to
exist any loans or advances to, or make or permit to exist any investment or
any other interest in, or make any acquisition of assets of any other Person
as a going concern, or create any Subsidiary (each, an "Investment"), except:
(a) Investments existing on the date hereof in the Capital Stock
set forth on Schedule 6.04 hereto;
(b) Permitted Investments; and
(c) so long as there exists no Default or Event of Default both
before and after giving effect to any such Investment, the Borrower or any of
its Subsidiaries may purchase shares of the Target Stock, so long as such
shares are immediately delivered to the Administrative Agent together with
stock powers executed in blank.
SECTION 6.05. Mergers, Consolidations and Sales of Assets. The
Borrower will not, and will not cause or permit any of its Subsidiaries to:
(a) merge into or consolidate with any Person, or permit any
other Person to merge into or consolidate with it; provided that, if there
exists no Default or Event of Default at the time thereof or immediately
after giving effect thereto (i) the Target and the Borrower may merge as
contemplated by the Merger Agreement, (ii) any Wholly Owned Subsidiary may
merge into or consolidate with any other Wholly Owned Subsidiary in a
transaction in which the surviving entity is a Wholly Owned Subsidiary and no
Person other than the Borrower or a Wholly Owned Subsidiary receives any
consideration; or
(b) sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of
its assets (whether now owned or hereafter acquired) or any amount of Capital
Stock of any Subsidiary of the Borrower or the Target, except that (i) the
Borrower and any Subsidiary of the Borrower may sell or dispose of inventory
and obsolete equipment in the ordinary course of business, (ii) so long as
there exists no Default or Event of Default both before and after giving
effect thereto the Borrower or any of its Subsidiaries may (A) make an Asset
Disposition (other than an Asset Disposition with respect to the Capital
Stock of a Subsidiary or the Target), so long as (I) the cumulative aggregate
consideration for all such Asset Dispositions after the date hereof shall not
exceed $10,000, and (II) the Loans are reduced by the Net Cash Proceeds of
each such Asset Disposition in accordance with Section 2.11 hereof and, (iii)
so long as there exists no Event of Default both before and after giving
effect thereto, any Wholly Owned Subsidiary of the Borrower may transfer all
or any part of its assets to the Borrower. Notwithstanding anything to the
contrary herein or in any other Loan Paper, under no circumstance may the
Borrower or any Subsidiary of the Borrower sell, dispose of or transfer any
of the Capital Stock of the Target.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay Dividends. The Borrower will not, and will not cause
or permit any of its Subsidiaries to, declare or pay, directly or indirectly,
any dividend or make any other distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its Capital Stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary of the Borrower to purchase or acquire) any shares of any class of
its Capital Stock or set aside any amount for any such purpose; provided,
however, that (i) any Subsidiary of the Borrower may declare and pay
dividends or make other distributions to another Wholly Owned Subsidiary or
to the Borrower, and (ii) the Borrower may declare and pay dividends or make
other distributions that consist solely of common stock of the Borrower.
SECTION 6.07. Transactions with Affiliates. Except as permitted
in Section 6.06 hereof, the Borrower will not, and will not cause or permit
any of its Subsidiaries to, sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any
other transactions with, or permit any Subsidiary of the Borrower to sell or
transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transactions with any of its
Affiliates (including, without limitation, the Target and its Subsidiaries),
except that the Borrower or any Subsidiary of the Borrower may engage in any
of the foregoing transactions in the ordinary course of business as currently
conducted or to be conducted at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arm's length basis from unrelated third parties; provided, however, that the
foregoing shall not preclude the Borrower nor any Subsidiary of the Borrower
from performing and complying with its obligations necessary to consummate
the Transactions.
SECTION 6.08. Limitation on Restrictive Agreements. The Borrower
will not, and will not cause or permit any of its Subsidiaries to, enter into
any indenture, agreement, instrument, financing document or other arrangement
which, directly or indirectly, contains any financial covenants or prohibits
or restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon: (a) the incurrence of Indebtedness, (b)
the granting of Liens, (c) the making or granting of Guarantees, (d) the
payment of dividends or distributions, (e) the purchase, redemption or
retirement of any Capital Stock, (f) the making of loans or advances, or (g)
transfers or sales of property or assets (including Capital Stock) by the
Borrower or any of its Subsidiaries, other than restrictions on the granting
of Liens on, or the transfer of, assets that are encumbered by Liens
permitted under clause (b) of Section 6.02 hereof with respect to the
property or assets covered by such Lien only.
SECTION 6.09. Amendments to Organizational Documents. The
Borrower will not, and will not cause or permit any of its Subsidiaries to,
enter into any amendment of any term or provision, or accept any consent or
waiver with respect to any such provision, of its articles or certificate of
incorporation, by-laws, or its organizational documents, as applicable, in
any manner that is material and adverse to the Lenders.
SECTION 6.10. Impairment of Security Interests. The Borrower will
not, and will not permit any of its Subsidiaries to, take or omit to take any
action, which action or omission might or would have the result of materially
impairing the security interests in favor of the Administrative Agent on
behalf of the Secured Parties with respect to the Collateral, and the
Borrower will not, and will not permit any of its Subsidiaries to, grant to
any person (other than the Administrative Agent on behalf of the Secured
Parties) any interest whatsoever in the Collateral.
SECTION 6.11 Business of Borrower and Subsidiaries. The Borrower
will not, and will not cause or permit any of its Subsidiaries to, engage at
any time in any material business or business activity other than the
business currently conducted by it and business activities reasonably
incidental thereto. Holding and the Borrower will not directly or indirectly
engage in any business, activity or operations other than owning and holding
the Target Stock, consummation of the Merger and activities directly related
thereto.
SECTION 6.12 Capital Expenditures. The Borrower will not, and
will not permit any of its Subsidiaries to make any capital expenditures.
ARTICLE VII
Events of Default
-----------------
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made by the
Borrower or any of its Subsidiaries in or in connection with this Agreement
or in any other Loan Paper, or in connection with any agreement related to
the Transactions, or any representation, warranty, statement or written
information contained in any report, certificate, financial statement or
other instrument prepared by the Borrower or any Subsidiary of the Borrower
and furnished by the Borrower or any Subsidiary of the Borrower in connection
with or pursuant to this Agreement or any other Loan Paper, shall prove to
have been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or any Fee or any other amount (other than an amount referred to in (b)
above) due under this Agreement or any other Loan Paper, when and as the same
shall become due and payable, and such default shall continue unremedied for
a period of five Business Days;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of the Borrower of any covenant, condition
or agreement contained in Sections 5.01(a), 5.05(a) or 5.08 hereof or in
Article VI (other than Section 6.02) hereof;
(e) default shall be made in the due observance or performance
by the Borrower or any Obligor of any covenant, condition or agreement
contained in this Agreement (other than those specified in (b), (c) or (d)
above) or in any Loan Paper and such default shall continue unremedied for a
period of 20 days after notice thereof from the Administrative Agent or any
Lender to the Borrower;
(f) Holding, the Target, the Borrower or any Subsidiary of the
Borrower shall (i) fail to pay any principal or interest, regardless of
amount, due in respect of any Indebtedness in a principal amount in excess of
$1,000,000, when and as the same shall become due and payable, or (ii) fail
to observe or perform any other term, covenant, condition or agreement
contained in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause (ii) is
to cause, or, except in the case of Indebtedness of the Target, to permit the
holder or holders of such indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Holding, the Target, the Borrower or any
Subsidiary of the Borrower, or of a substantial part of the property or
assets of Holding, the Target, the Borrower or any Subsidiary of the
Borrower, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Debtor Relief Laws, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for Holding, the Target, the Borrower or any Subsidiary of the Borrower or
for a substantial part of the property or assets of Holding, the Target, the
Borrower or such Subsidiary of the Borrower or (iii) the winding-up or
liquidation of Holding, the Target, the Borrower, any Subsidiary of the
Borrower; and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holding, the Target, the Borrower, any Subsidiary of the
Borrower shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Debtor Relief Laws, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holding, the Target, the
Borrower or any Subsidiary of the Borrower part of the property or assets of
Holding, the Target, the Borrower or any Subsidiary of the Borrower, (iv)
file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due, or (vii) take any action for
the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Target, the Borrower or any Subsidiary of the Borrower or any combination
thereof and the same shall remain undischarged for a period of thirty
consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to levy upon assets
or properties of the Target, the Borrower or any Subsidiary of the Borrower
to enforce any such judgment;
(j) an ERISA Event shall have occurred that, when taken together
with all other such ERISA Events, could reasonably be expected to result in
liability of any of the Obligors, individually or in the aggregate, or any
combination thereof, in an aggregate amount exceeding $10,000;
(k) there shall have occurred a Change in Control of Holding or
the Borrower, or the Borrower shall fail to own, directly or indirectly,
beneficially or of record, shares of Capital Stock of the Target representing
50.1% or more of the aggregate ordinary voting power of the Target.
(l) any of the following shall occur: (i) this Agreement, the
Merger Agreement, the Security Agreement, the Pledge Agreement, any
guarantees executed by the Guarantors or any promissory notes executed in
connection with this Agreement (collectively, the "Material Agreements"), or
any material provision of any thereof shall, for any reason, not be valid and
binding on the Obligor signatory thereto, or not be in full force and effect,
or shall be declared to be null and void; or (ii) the validity or
enforceability of any Material Agreement shall be contested by any Obligor,
any Subsidiary of the Borrower, or the Target or any of its Subsidiaries, or
any of their Affiliates; or (iii) any Obligor shall deny in writing that it
has any or further liability or obligation under its respective Material
Agreements; or (iv) any default or breach under any provision of any Material
Agreement shall continue after the applicable grace period, if any, specified
in such Material Agreement;
(m) any of the following shall have occurred: (i) the Pledge
Agreement, the Security Agreement or any other Loan Paper shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien in the Collateral purported to be covered
thereby (except as permitted by the terms of this Agreement or such Loan
Paper or consented to by the Lenders); or (ii) less than all of the issued
and outstanding Capital Stock of the Target that is owned by the Borrower or
any Subsidiary of the Borrower shall be pledged to secure the Obligations;
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at
the request of the Required Lenders shall, by notice to the Borrower, take
either or both of the following actions, at the same or different times: (i)
terminate forthwith the Commitments, or (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding; and in any event with
respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest hereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
------------------------
In order to expedite the transactions contemplated by this Agreement
and the other Loan Papers, NationsBank is hereby appointed to act as
Administrative Agent on behalf of the Lenders. Each of the Lenders and each
assignee of any such Lender, hereby irrevocably authorizes the Administrative
Agent to take such actions on behalf of such Lender or assignee and to
exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such actions and
powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans, and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender its proper share
of each payment so received; (b) to give notice on behalf of each of the
Lenders to the Borrower of any Event of Default specified in this Agreement
of which the Administrative Agent has actual knowledge acquired in connection
with its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Borrower
pursuant to this Agreement and the other Loan Papers as received by the
Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted
by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or
be required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements contained herein. The Administrative Agent shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, the other Loan Papers or
any other instruments or agreements. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. The
Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith
to be genuine and correct and to have been signed or sent by the proper
Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by
any Lender of any of its obligations hereunder or to any Lender on account of
the failure of or delay in performance or breach by any other Lender or the
Borrower of any of their respective obligations hereunder or in connection
herewith. The Administrative Agent may execute any and all duties hereunder
by or through agents or employees and shall be entitled to rely upon the
advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Paper unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign
at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such
bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 9.05 hereof shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have
the same rights and powers as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the Administrative Agent and
its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary of the Borrower
or other Affiliate thereof as if it were not the Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment
hereunder) of any expenses incurred for the benefit of the Lenders by the
Administrative Agent, including reasonable counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders,
that shall not have been reimbursed by the Borrower and (b) to indemnify and
hold harness the Administrative Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from
and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be Imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent or any of them in any
way relating to or arising out of this Agreement or any other Loan Paper or
any action taken or omitted by it or any of them under this Agreement or any
other Loan Paper, to the extent the same shall not have been reimbursed by
the Borrower; provided that no Lender shall be liable to the Administrative
Agent or any such other indemnified Person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of the Administrative Agent
or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Low Papers.
Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement and the other Loan Papers, or any related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile,
as follows:
(a) if to the Borrower, to it at:
c/o ▇.▇. Child Associates, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & Worcester, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrative Agent, to it at:
NationsBank, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) if to a Lender, to it at its address (or facsimile number)
set forth in Schedule 2.01 attached hereto or in the Assignment and
Acceptance pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement and the other Loan Papers shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by facsimile or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in
this Section 9.01 or in accordance with the latest unrevoked direction from
such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement and the other Loan Papers shall be considered to
have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by the Lenders or
on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Paper is outstanding
and so long as the Commitments have not been terminated. The provisions of
Sections 2.12. 2.14, 2.18 and 9.05 hereof shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of
any of the Loans, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Paper, or any investigation made by or on behalf of the Administrative Agent
or any Lender.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each
of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted
successors and assigns.
SECTION 9.04. Successors and Assigns.
(a) Whenever in this Agreement or any other Loan Paper any of
the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party, and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement and the other Loan
Papers shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees, all or a
portion of its interests, rights and obligations under this Agreement and the
other Loan Papers (including all or a portion of its Commitment and the Loans
at the time owing to it); provided, however, that (i) except in the case of
an assignment to a Lender or an Affiliate of such Lender, (x) the Borrower
and the Administrative Agent must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld) and (y) the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment) and will not result in the unassigned portion, if any,
of the assigning Lender's Commitment being less than $5,000,000 (provided,
however, that the $5,000,000 amounts referred to in this clause (i) shall be
reduced ratably in accordance with any reductions in the Total Commitment)
(ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (iii) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of
this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and the other Loan Papers and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement and the
other Loan Papers (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement and the other Loan Papers, such Lender shall cease to be
a party hereto and to the Loan Papers, but shall continue to be entitled to
the benefits of Sections 2.12, 2.14, 2.18 and 9.05 hereof, as wen as to any
Fees accrued for its account and not yet paid). The Borrower shall, at its
expense, issue to the assignor and assignee new promissory notes, as
applicable, in the respective amounts of each such Lender's Pro Rata
Percentage in the Loans, each in the form of the promissory notes delivered
by the Borrower on the Closing Date.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed
to confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and that its Commitment, and the outstanding balances of its
Loans, in each case without giving effect to assignments thereof which have
nor become effective, are as set forth in such Assignment and Acceptance;
(ii) except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Paper, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Paper, or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary of the
Borrower, or the performance or observance by the Borrower or any Subsidiary
of the Borrower of any of its obligations under this Agreement or any other
Loan Paper, or an other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is legally authorized to
enter into such Assignment and Acceptance; (iv) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in Section 3.05 or delivered pursuant
to Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement and the other Loan Papers; (vi)
such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Papers as are delegated to the Administrative
Agent by the terms-hereof and thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms
of this Agreement and the other Loan Papers are required to be performed by
it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at its offices in Charlotte, North
Carolina, a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive and the Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement and the other Loan Papers, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred
to in paragraph (b) above and, if required, the written consent of the
Borrower and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement and the other Loan Papers (including all or a portion of its
Commitment and the Loans owing to it); provided, however, that (i) such
Lender's obligations under this Agreement and the other Loan Papers shall
remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.12, 2.14 and 2.18 hereof
to the same extent as if they were Lenders and (iv) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Papers, and such Lender
shall retain the sole right to enforce the obligations of the Borrower
relating to the Loans and to approve any amendment, modification or waiver of
any provision of this Agreement and the other Loan Papers (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant
to this Section 9.04. disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure of information designated by the Borrower as confidential, each
such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree
(subject to customary exceptions) to preserve the confidentiality of such
confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 9.16 hereof.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement and the other Loan Papers to a Federal Reserve
Bank to secure extensions of credit by such Federal Reserve Bank to such
Lender; provided that no such assignment shall release a Lender from any of
its obligations hereunder or substitute any such Bank for such Lender as a
party hereto. In order to facilitate such an assignment to a Federal Reserve
Bank, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights
or duties hereunder without the prior written consent of the Administrative
Agent and each Lender, and any attempted assignment without such consent
shall be null and void.
SECTION 9.05. Expenses; Indemnity.
(a) The Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent and NCMI in connection with the
syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Papers or in
connection with any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions hereby or thereby contemplated shall
be consummated) or incurred by the Administrative Agent or any Lender in
connection with the enforcement or protection of its rights in connection
with this Agreement and the Loan Papers, or in connection with the Loans made
hereunder, including the reasonable fees, charges and disbursements of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Administrative Agent, and, in connection with any
such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel for the Administrative Agent or, following
the occurrence of an Event of Default, any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent
and each Lender, each Affiliate of any of the foregoing Persons and each of
their respective directors, officers, employees and agents (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement and the other
Loan Papers or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder
or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance
of Lenders of Credit, or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of, or breach of contract by, such
Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the other Loan Papers, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement, any other Loan
Paper, or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by Law, to set off and
apply any and an deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter existing under this
Agreement and the other Loan Papers held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender
under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (EXCEPT, IN THE CASE OF CERTAIN OF THE OTHER LOAN PAPERS,
TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION GOVERN THE PERFECTION AND
EFFECT OF PERFECTION OR NON-PERFECTION OF, CERTAIN LIENS).
SECTION 9.08. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent or any
Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
and the Lenders hereunder are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provision of
this Agreement or any other Loan Paper, or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No notice or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof or in any
other Loan Paper may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the
Required Lenders; provided, however, that no such agreement shall (i)
decrease the principal amount of, or extend the maturity of or any scheduled
principal payment date or date for the payment of any interest on any Loan,
or waive or excuse any such payment or any part thereof, or decrease the rate
of interest on any Loan, without the prior written consent of each Lender
affected thereby (ii) change or extend the Commitment or decrease the
Commitment Fees or the Facility Fees of any Lender without the prior written
consent of such Lender, or (iii) amend or modify the provisions of Sections
2.15 or 9.04(i) hereof, the provisions of this Section or the definition of
the term "Required Lenders", without the prior written consent of each
Lender; provided, further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.09. Interest Rate Limitation. It is not the intention
of any party to any Loan Papers to make an agreement violative of the Laws of
any applicable jurisdiction relating to usury. In no event shall the
Borrower or any other Person be obligated to pay any amount in excess of the
Maximum Amount. If the Administrative Agent or any Lender ever receives,
collects or applies, as interest, any such excess, such amount which would be
excessive interest shall be deemed a partial repayment of principal and
treated hereunder as such; and if principal is paid in full, any remaining
excess shall be paid to the Borrower or the other Person entitled thereto.
In determining whether or not the interest paid or payable, under any
specific contingency, exceeds the Maximum Amount, each Obligor, the
Administrative Agent and each Lender shall, to the maximum extent permitted
under Applicable Law, (a) characterize any nonprincipal payment as an
expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effect thereof, and (c) amortize, prorate, allocate and
spread in equal parts, the total amount of interest throughout the entire
contemplated term of the Obligation so that the interest rate is uniform
throughout the entire term of the Obligation; provided that if the Obligation
is paid and performed in full prior to the end of the fun contemplated term
thereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Amount, the Administrative Agent or Lenders, as
appropriate, shall refund to the Borrower the amount of such excess or credit
the amount of such excess against the total principal amount owing, and, in
such event, neither the Administrative Agent nor any Lender shall be subject
to any penalties provided by any Laws for contracting for, charging or
receiving interest in excess of the Maximum Amount. This Section 9.09 shall
control every other provision of all agreements among the parties to the Loan
Papers pertaining to the transactions contemplated by or contained in the
Loan Papers.
SECTION 9.10. Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN
PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
SECTION 9.11. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
PAPER. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN PAPERS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Paper should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction
shall not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original but all of which when taken
together shall constitute a single contracts and shall become effective as
provided in Section 9.03 hereof. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of
a manually signed counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in New
York, New York and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Paper, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by Law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law.
Nothing in this Agreement or in any other Loan Paper shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Paper
against the Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any ' suit,
action or proceeding arising out of or relating to this Agreement or any
other Loan Paper in any New York, New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by Law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(c) Each party to this Agreement and any other Loan Paper
irrevocably consents to service of process in the manner provided for notices
in Section 9.01 hereof. Nothing in this Agreement or any other Loan Paper
will affect the right of any party to this Agreement or any other Loan Paper
to serve process in any other manner permitted by Law.
SECTION 9.16. Confidentiality. The Administrative Agent and each
of the Lenders agrees to keep confidential (and to use its best efforts to
cause its respective agents and representatives to keep confidential) the
Information (as defined below) and all copies thereof, extracts therefrom and
analyses or other materials based thereon, except that the Administrative
Agent or any Lender shall be permitted to disclose Information (a) to such of
its respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested
by any regulatory authority, (c) to the extent otherwise required by
Applicable Laws and regulations or by any subpoena or similar legal process,
(d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or (e) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section
9.16 or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent or any Lender
based on any of the foregoing) that are received from the Borrower and
related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that
were available to the Administrative Agent or any Lender on a nonconfidential
basis prior to its disclosure thereto by the Borrower, and which are in the
case of Information provided after the date hereof, clearly identified at the
time of delivery as confidential. The provisions of this Section 9.16 shall
remain operative and in full force and effect regardless of the expiration
and term of this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duty executed by their respective authorized officers as of the day and
year first above written.
THE BORROWER: JWC ACQUISITION I, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
THE ADMINISTRATIVE AGENT: NATIONSBANK, N.A.,
as Administrative Agent
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: Attorney-In-Fact
THE LENDERS: NATIONSBANK, N.A.,
individually as a Lender
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: Attorney-In-Fact
FLEET NATIONAL BANK
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
EXHIBIT A
JWC ACQUISITION I, INC. Administrative Detail Reply Form
NationsBank
BORROWER: JWC Acquisition I, Inc.
Name of Entity for Signature Page: _______________________
Name of Person to Receive Draft Credit Agreement at Bank: _____________________
CREDIT CONTACT OPERATION CONTACT LEGAL COUNSEL
NAME: --------------- --------------- -------------
TITLE: --------------- --------------- -------------
ADDRESS: --------------- --------------- -------------
--------------- --------------- -------------
--------------- --------------- -------------
--------------- --------------- -------------
TELEPHONE: --------------- --------------- -------------
FACSIMILE #: --------------- --------------- -------------
TELEX #: --------------- --------------- -------------
ANSWERBACK: --------------- --------------- -------------
PAYMENT INSTRUCTIONS
Fed Wire Instructions
---------------------
Pay To: ------------------------------------------------------
(Name of Bank)
------------------------------------------------------
(Address)
------------------------ ----------------------
(City) (State) (Zip)
------------------------------------------------------
(ABA #) (Account #)
------------------------------------------------------
(Attention)
NATIONSBANK PAYMENT INSTRUCTIONS
Pay to: NationsBank, N.A.
ABA #: [▇▇▇▇▇▇▇▇▇]
Attention: Commercial Loan Operations
Reference: JWC Acquisition I, Inc.
Account: --------------------------
-------------------------------------------------------------------------------
NationsBank Capital Markets, Inc. Strictly Confidential
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of December ___,
1996 (the "Credit Agreement"), among JWC Acquisition I, Inc., a Delaware
corporation (the "Borrower"), the lenders listed on Schedule 2.01 thereto
(the "Lenders") and NationsBank, N.A., as administrative agent for the
Lenders (in such capacity, the "Administrative Agent "). Terms defined in
the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Effective Date set forth
below (but not prior to the registration of the information contained herein
in the Register pursuant to Section 9.04(e) of the Credit Agreement), the
interests set forth below (the "Assigned Interest") in the Assignor's rights
and obligations under the Credit Agreement, including, without limitation,
the amounts and percentages set forth below of (i) the Commitments of the
Assignor on the Effective Date and (ii) the Loans owing to the Assignor which
are outstanding on the Effective Date. Each of the Assignor and the Assignee
hereby makes and agrees to be bound by all the representations, warranties
and agreements set forth in Section 9.04 of the Credit Agreement, a copy of
which has been received by each such party. From and after the Effective
Date (i) the Assignee shall be a party to and be bound by the provisions of
the Credit Agreement and, to the extent of the interests assigned by this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Papers and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations, under the Credit
Agreement.
2. This Assignment and Acceptance shall be governed by, and
construed in accordance with the laws of the State of New York.
Date of Assignment: -------------------
Legal Name of Assignor: ---------------
Legal Name of Assignee: ---------------
Assignee's Address
for Notices: --------------------------
--------------------------
--------------------------
Effective Date of Assignment (may
not be fewer than 5 Business Days
after the Date of Assignment):
----------------------
Facility/Commitment Principal Amount of Loans Assigned Percentage Assigned
of Applicable
Facility/Commitment
(set forth, to
at least 8 decimals,
as a percentage of
the Facility and
the aggregate
Commitments of all
Lenders thereunder)
Revolving Credit $ %
Term Credit $ %
The terms set forth Accepted by:
above are hereby
agreed to:
-------------------,
as Assignor
----------------------------,
as Assignee
By: By:
---------------- -------------------------
Name: Name:
Title: Title:
NATIONSBANK, N.A., as JWC ACQUISITION I, INC.
Administrative Agent
By: By:
---------------- -------------------------
Name: Name:
Title: Title:
EXHIBIT C
BORROWING NOTICE
, 199__
NationsBank, N.A., as
Administrative Agent
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ---------------------
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement dated as of
December ___, 1996 (the "Credit Agreement", the terms defined therein being
used herein as therein defined) among JWC Acquisition I, Inc., NationsBank,
N.A., as Administrative Agent, and each Lender, and hereby gives you notice
pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (a "Proposed
Borrowing") as required by Section 2.03, of the Credit Agreement:
Proposed Borrowing:
(i) The Business Day of such Proposed Borrowing is ___________, 199__.
(ii) The Type of Borrowing comprising such Proposed Borrowing is
[an ABR Borrowing] [a Eurodollar Borrowing with an initial Interest
Period of ____ month[s]].
(iii) The aggregate amount of such Proposed Borrowing is $_________.
(iv) The proceeds of such Proposed Borrowing are to be disbursed
to account number _______________ at [name and address of bank].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:
(A) the conditions precedent specified in Article IV of
the Credit Agreement have been satisfied with respect to the Proposed
Borrowing and will remain satisfied on the date of such Proposed
Borrowing;
(B) the representations and warranties specified in
Article III of the Credit Agreement are true and correct in all
material respects as though made on and as of such date; and
(C) no event has occurred and is continuing or would
result from such Proposed Borrowing which constitutes a Default or
Event of Default.
Very truly yours,
JWC ACQUISITION I, INC.
By:
---------------------
Name:
Title:
EXHIBIT D
COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he/she is the duly elected
[President]/[Vice President]/[Treasurer] of JWC Acquisition I, Inc., a
Delaware corporation (the "Borrower"), and that he/she is authorized to
execute this Certificate on behalf of the Borrower pursuant to Section
5.04(c) of that certain Credit Agreement dated as of December __, 1996 (the
"Credit Agreement"), among the Borrower, NationsBank, N.A., individually and
as Administrative Agent and each Lender a party thereto. All terms used but
not defined herein shall have the meanings set forth in the Credit Agreement.
This Certificate is submitted concurrently with the [quarterly]/[annual]
financial statements of the Borrower for the period ended 199_. The
undersigned hereby further certifies to the following as of the date set
forth below:
No event has occurred which constitutes a Default or an Event of
Default.
1. Pursuant to Section 6.01 of the Credit Agreement, the only
Indebtedness of the Borrower and its Subsidiaries is as follows:
2. Neither the Borrower nor any of its Subsidiaries have entered into
any sale and lease back transaction prohibited by Section 6.03 of the Credit
Agreement.
3. Pursuant to Section 6.04 of the Credit Agreement, the only
Investments of the Borrower and its Subsidiaries are as follows:
4. Neither the Borrower nor any of its Subsidiaries have entered into
any merger or consolidation, or made any sales, transfers or other
dispositions of all or any substantial part of its assets or any amount of
Capital Stock of any Subsidiary of the Borrower or the Target, prohibited by
Section 6.05 of the Credit Agreement.
5. Pursuant to Section 6.06 of the Credit Agreement, the only
dividends or distributions made by the Borrower and its Subsidiaries are as
follows:
6. Neither the Borrower nor any of its Subsidiaries have made any
capital expenditures prohibited by Section 6.12 of the Credit Agreement.
7. The attached financial statements fairly present the financial
condition and results of operations of Holding and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied[, subject to normal year end audit adjustments].
IN WITNESS WHEREOF, I have executed this Certificate as of
the _______ day of ______________________, 199__.
JWC ACQUISITION I, INC.
-----------------------
By:--------------------
Its:-------------------