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EXHIBIT (b)(3)
CREDIT AGREEMENT
Dated as of June 1, 2001
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
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and
BANK OF AMERICA, N.A.
as the Agent
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and
▇▇▇ ▇. ▇▇▇▇▇▇, INC.
as the Borrower
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TABLE OF CONTENTS
Section Page
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ARTICLE 1 LOANS AND LETTERS OF CREDIT 1
1.1 Total Facility. 1
1.2 Revolving Loans. 1
1.3 Term Loans. 5
1.4 Letters of Credit. 6
1.5 Bank Products 10
ARTICLE 2 INTEREST AND FEES 10
2.1 Interest. 10
2.2 Continuation and Conversion Elections. 11
2.3 Maximum Interest Rate. 12
2.4 Fees. 12
2.5 Unused Line Fee. 13
2.6 Letter of Credit Fee. 13
ARTICLE 3 PAYMENTS AND PREPAYMENTS 13
3.1 Revolving Loans. 13
3.2 Termination of Facility. 14
3.3 Repayment of the Term Loans. 15
3.4 Prepayments of the Term Loans. 15
3.5 LIBOR Rate Loan Prepayments. 15
3.6 Payments by the Borrower. 15
3.7 Payments as Revolving Loans. 16
3.8 Apportionment, Application and Reversal of Payments. 16
3.9 Indemnity for Returned Payments. 17
3.10 Agent's and Lenders' Books and Records; Monthly Statements. 17
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY 17
4.1 Taxes. 18
4.2 Illegality. 19
4.3 Increased Costs and Reduction of Return. 19
4.4 Funding Losses. 20
4.5 Inability to Determine Rates. 20
4.6 Certificates of Agent. 20
4.7 Survival. 20
ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES 21
5.1 Books and Records. 21
5.2 Financial Information. 21
5.3 Notices to the Lenders. 24
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ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS 26
6.1 Authorization, Validity, and Enforceability of this Agreement and the
Loan Documents. 26
6.2 Validity and Priority of Security Interest. 27
6.3 Organization and Qualification. 27
6.4 Corporate Name; Prior Transactions. 27
6.5 Subsidiaries and Affiliates. 27
6.6 Financial Statements and Projections. 28
6.7 Capitalization. 28
6.8 Solvency. 28
6.9 Debt. 28
6.10 Distributions. 29
6.11 Real Estate; Leases. 29
6.12 Proprietary Rights. 29
6.13 Trade Names. 29
6.14 Litigation. 29
6.15 Labor Disputes. 30
6.16 Environmental Laws. 30
6.17 No Violation of Law. 31
6.18 No Default. 31
6.19 ERISA Compliance. 31
6.20 Taxes. 31
6.21 Regulated Entities. 32
6.22 Use of Proceeds; Margin Regulations. 32
6.23 Copyrights, Patents, Trademarks and Licenses, etc. 32
6.24 No Material Adverse Change. 33
6.25 Full Disclosure. 33
6.26 Material Agreements. 33
6.27 Bank Accounts. 33
6.28 Governmental Authorization. 33
6.29 No Suspension or Debarment. 33
ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS 34
7.1 Taxes and Other Obligations. 34
7.2 Legal Existence and Good Standing. 34
7.3 Compliance with Law and Agreements; Maintenance of Licenses. 34
7.4 Maintenance of Property; Inspection of Property. 35
7.5 Insurance. 35
7.6 Insurance and Condemnation Proceeds. 36
7.7 Environmental Laws. 36
7.8 Compliance with ERISA. 38
7.9 Mergers, Consolidations or Sales. 38
7.10 Distributions; Capital Change; Restricted Investments. 38
7.11 Transactions Affecting Collateral or Obligations. 38
7.12 Guaranties. 38
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7.13 Debt. 39
7.14 Prepayment. 39
7.15 Transactions with Affiliates. 39
7.16 Investment Banking and Finder's Fees. 39
7.17 Business Conducted. 40
7.18 Liens. 40
7.19 Sale and Leaseback Transactions. 40
7.20 New Subsidiaries or Joint Ventures. 40
7.21 Fiscal Year. 40
7.22 Capital Expenditures. 40
7.23 Fixed Charge Coverage Ratio. 40
7.24 Funded Debt to EBITDA Ratio. 41
7.25 Senior Debt to EBITDA Ratio. 41
7.26 Minimum Tangible Net Worth. 42
7.27 Minimum Availability. 42
7.28 Use of Proceeds. 42
7.29 Further Assurances. 42
7.30 Depository Bank. 42
7.31 Net ▇▇▇▇▇▇▇▇ in Excess of Costs. 43
7.32 Federal Government Contracts and Government Contracts. 43
7.33 Transactions with Subsidiaries 43
ARTICLE 8 CONDITIONS OF LENDING 44
8.1 Conditions Precedent to Making of Loans on the Closing Date. 44
8.2 Conditions Precedent to Each Loan. 47
ARTICLE 9 DEFAULT; REMEDIES 48
9.1 Events of Default. 48
9.2 Remedies. 50
ARTICLE 10 TERM AND TERMINATION 52
ARTICLE 11 AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS 52
11.1 Amendments and Waivers. 52
11.2 Assignments; Participations. 54
ARTICLE 12 THE AGENT 56
12.1 Appointment and Authorization. 56
12.2 Delegation of Duties. 56
12.3 Liability of Agent. 56
12.4 Reliance by Agent. 57
12.5 Notice of Default. 57
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12.6 Credit Decision. 57
12.7 Indemnification. 58
12.8 Agent in Individual Capacity. 58
12.9 Successor Agent. 59
12.10 Withholding Tax. 59
12.11 Collateral Matters. 60
12.12 Restrictions on Actions by Lenders; Sharing of Payments. 61
12.13 Agency for Perfection. 62
12.14 Payments by Agent to Lenders. 62
12.15 Settlement. 63
12.16 Letters of Credit; Intra-Lender Issues. 66
12.17 Concerning the Collateral and the Related Loan Documents. 68
12.18 Field Audit and Examination Reports; Disclaimer by Lenders. 68
12.19 Relation Among Lenders. 69
ARTICLE 13 MISCELLANEOUS 69
13.1 No Waivers; Cumulative Remedies. 69
13.2 Severability. 69
13.3 Governing Law; Choice of Forum; Service of Process. 69
13.4 WAIVER OF JURY TRIAL. 70
13.5 Survival of Representations and Warranties. 71
13.6 Other Security and Guaranties. 71
13.7 Fees and Expenses. 71
13.8 Notices. 72
13.9 Waiver of Notices. 73
13.10 Binding Effect. 73
13.11 Indemnity of the Agent and the Lenders by the Borrower. 74
13.12 Limitation of Liability. 74
13.13 Final Agreement. 75
13.14 Counterparts. 75
13.15 Captions. 75
13.16 Right of Setoff. 75
13.17 Confidentiality. 76
13.18 Conflicts with Other Loan Documents. 76
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A - DEFINED TERMS
EXHIBIT A-1 - FORM OF REVOLVING LOAN NOTE
EXHIBIT A-2 - FORM OF TERM NOTE
EXHIBIT B - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT C - FINANCIAL STATEMENTS
EXHIBIT D - FORM OF NOTICE OF BORROWING
EXHIBIT E - FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT F - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
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SCHEDULE 1.1 - ASSIGNED CONTRACTS (ANNEX A - DEFINED TERMS)
SCHEDULE 1.2 - LENDERS' COMMITMENTS (ANNEX A - DEFINED TERMS)
SCHEDULE 6.3 - ORGANIZATION AND QUALIFICATIONS
SCHEDULE 6.5 - SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.9 - DEBT
SCHEDULE 6.10 - DISTRIBUTIONS
SCHEDULE 6.11 - REAL ESTATE; LEASES
SCHEDULE 6.12 - PROPRIETARY RIGHTS
SCHEDULE 6.13 - TRADE NAMES
SCHEDULE 6.14 - LITIGATION
SCHEDULE 6.15 - LABOR AGREEMENTS
SCHEDULE 6.16 - ENVIRONMENTAL LAW
SCHEDULE 6.19 - ERISA COMPLIANCE
SCHEDULE 6.20 - TAXES
SCHEDULE 6.26 - MATERIAL AGREEMENTS
SCHEDULE 6.27 - BANK ACCOUNTS
SCHEDULE 7.12 GUARANTIES
SCHEDULE 7.16 INVESTMENT BANKING FEES
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CREDIT AGREEMENT
This Credit Agreement, dated as of June 1, 2001, (this "Agreement")
among the financial institutions from time to time parties hereto (such
financial institutions, together with their respective successors and assigns,
are referred to hereinafter each individually as a "Lender" and collectively as
the "Lenders"), BANK OF AMERICA, N.A., with an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent for the Lenders (in its capacity as
agent, the "Agent"), and ▇▇▇ ▇. ▇▇▇▇▇▇, INC., a Pennsylvania corporation, with
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower").
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to make available to the
Borrower a revolving line of credit for loans and letters of credit in an amount
not to exceed $40,000,000 and to make term loans to the Borrower in the
aggregate principal amount of $9,000,000, and which extensions of credit the
Borrower will use for the purposes permitted hereunder;
WHEREAS, capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed thereto in Annex A which is
attached hereto and incorporated herein; the rules of construction contained
therein shall govern the interpretation of this Agreement, and all Annexes,
Exhibits and Schedules attached hereto are incorporated herein by reference;
WHEREAS, the Lenders have agreed to make available to the Borrower a
revolving credit facility and term loans upon the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Lenders, the Agent, and the
Borrower hereby agree as follows.
ARTICLE 1
LOANS AND LETTERS OF CREDIT
1.1 Total Facility.
Subject to all of the terms and conditions of this Agreement,
the Lenders agree to make available a total credit facility of up to $49,000,000
(the "Total Facility") to the Borrower from time to time during the term of this
Agreement. The Total Facility shall be composed of a revolving line of credit
consisting of Revolving Loans and Letters of Credit and the Term Loans described
herein.
1.2 Revolving Loans.
(a) Amounts.
(i) Subject to the satisfaction of the
conditions precedent set forth in ARTICLE 8 (Conditions of Lending), each Lender
severally, but not jointly, agrees, upon the Borrower's request from time to
time on any Business Day during the period from the
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Closing Date to the Termination Date, to make revolving loans (the "Revolving
Loans") to the Borrower in amounts not to exceed such Lender's Pro Rata Share of
Availability (based on such Lender's Pro Rata Share of Revolving Loan
Commitments), except for Non-Ratable Loans and Agent Advances. The Lenders,
however, in their unanimous discretion, may elect to make Revolving Loans or
issue or arrange to have issued Letters of Credit in excess of the Borrowing
Base on one or more occasions, but if they do so, neither the Agent nor the
Lenders shall be deemed thereby to have changed the limits of the Borrowing Base
or to be obligated to exceed such limits on any other occasion. If the Aggregate
Revolver Outstandings would exceed Availability after giving effect to any
Borrowing, the Lenders may refuse to make or may otherwise restrict the making
of Revolving Loans as the Lenders determine until such excess has been
eliminated, subject to the Agent's authority, in its sole discretion, to make
Agent Advances pursuant to the terms of Section 1.2(i) (Agent Advances).
(ii) Borrower shall execute and deliver to
each Lender a note to evidence the Revolving Loan of that Lender. Each note
shall be in the principal amount of the Lender's Pro Rata Share of the Revolving
Loan Commitments, dated the date hereof and substantially in the form of Exhibit
A-1 (such promissory notes, together with any new notes issued pursuant to
Section 11.2 (Assignments; Participations) upon the assignment of any portion of
any Lender's Revolving Loans, being hereinafter referred to collectively as the
"Revolving Loan Notes" and each of such promissory notes being hereinafter
referred to individually as a Revolving Loan Note"). Each Revolving Loan Note
shall represent the obligation of Borrower to pay the amount of Lender's Pro
Rata Share of the Revolving Loan Commitments, or, if less, such Lender's Pro
Rata Share of the aggregate unpaid principal amount of all Revolving Loans to
Borrower together with interest thereon as prescribed in Section 3.1 (Revolving
Loans). The entire unpaid balance of the Revolving Loan and all other
non-contingent Obligations shall be immediately due and payable in full in
immediately available funds on the Termination Date.
(b) Procedure for Borrowing.
(i) Each Borrowing shall be made upon the
Borrower's irrevocable written notice delivered to the Agent in the form of a
notice of borrowing ("Notice of Borrowing"), which must be received by the Agent
prior to (A) 12:00 noon (Eastern time) three (3) Business Days prior to the
requested Funding Date, in the case of LIBOR Rate Loans and (B) 12:00 noon
(Eastern time) on the requested Funding Date, in the case of Base Rate Loans,
specifying:
(1) the amount of the Borrowing,
which in the case of a LIBOR Rate Loan must equal or exceed $1,000,000
(and increments of $500,000 in excess of such amount);
(2) the requested Funding Date,
which must be a Business Day;
(3) whether the Revolving Loans
requested are to be Base Rate Revolving Loans or LIBOR Revolving Loans
(and if not specified, it shall be deemed a request for a Base Rate
Revolving Loan); and
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(4) the duration of the Interest
Period for LIBOR Revolving Loans (and if not specified, it shall be
deemed a request for an Interest Period of one month);
provided, however, that with respect to the Borrowing to be made on the Closing
Date, such Borrowings will consist of Base Rate Revolving Loans only.
(ii) In lieu of delivering a Notice of
Borrowing, the Borrower may give the Agent telephonic notice of such request for
advances to the Designated Account on or before the deadline set forth above.
The Agent at all times shall be entitled to rely on such telephonic notice in
making such Revolving Loans, regardless of whether any written confirmation is
received.
(iii) The Borrower shall have no right to
request a LIBOR Rate Loan while a Default or Event of Default has occurred.
(c) Reliance upon Authority. Prior to the Closing
Date, the Borrower shall deliver to the Agent, a notice setting forth the
account of the Borrower ("Designated Account") to which the Agent is authorized
to transfer the proceeds of the Revolving Loans requested hereunder. The
Borrower may designate a replacement account from time to time by written
notice. All such Designated Accounts must be reasonably satisfactory to the
Agent. The Agent is entitled to rely conclusively on any person's request for
Revolving Loans on behalf of the Borrower, so long as the proceeds thereof are
to be transferred to the Designated Account. The Agent has no duty to verify the
identity of any individual representing himself or herself as a person
authorized by the Borrower to make such requests on its behalf; provided,
however, Agent shall not rely on any designation of a replacement account unless
such designation is in writing and executed by an officer of the Borrower.
(d) No Liability. The Agent shall not incur any
liability to the Borrower as a result of acting upon any notice referred to in
Section 1.2(b) (Procedure for Borrowing) and Section 1.2(c) (Reliance Upon
Authority), which the Agent believes in good faith to have been given by an
officer or other person duly authorized by the Borrower to request Revolving
Loans on its behalf. The crediting of Revolving Loans to the Designated Account
conclusively establishes the obligation of the Borrower to repay such Revolving
Loans as provided herein.
(e) Notice Irrevocable. Any Notice of Borrowing (or
telephonic notice in lieu thereof) made pursuant to Section 1.2(b) (Procedure
for Borrowing) shall be irrevocable. The Borrower shall be bound to borrow the
funds requested therein in accordance therewith.
(f) Agent's Election. Promptly after receipt of a
Notice of Borrowing (or telephonic notice in lieu thereof), the Agent shall
elect to have the terms of Section 1.2(g) (Making of Revolving Loans) or the
terms of Section 1.2(h) (Making of Non-Ratable Loans) apply to such requested
Borrowing. If the Bank declines in its sole discretion to make a Non-Ratable
Loan pursuant to Section 1.2(h) (Making of Non-Ratable Loans), the terms of
Section 1.2(g) (Making of Revolving Loans) shall apply to the requested
Borrowing.
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(g) Making of Revolving Loans. If Agent elects to
have the terms of this Section 1.2(g) apply to a requested Borrowing, then
promptly after receipt of a Notice of Borrowing or telephonic notice in lieu
thereof, the Agent shall notify the Lenders by telecopy, telephone or e-mail of
the requested Borrowing. Each Lender shall transfer its Pro Rata Share of the
requested Borrowing available to the Agent in immediately available funds, to
the account from time to time designated by Agent, not later than 12:00 noon
(Eastern time) on the applicable Funding Date. After the Agent's receipt of all
proceeds of such Revolving Loans, the Agent shall make the proceeds of such
Revolving Loans available to the Borrower on the applicable Funding Date by
transferring same day funds to the account designated by the Borrower; provided,
however, that the amount of Revolving Loans so made on any date shall not exceed
the Availability on such date.
(h) Making of Non-Ratable Loans.
(i) If Agent elects, with the consent of the
Bank, to have the terms of this Section 1.2(h) apply to a requested Borrowing,
the Bank shall make a Revolving Loan in the amount of that Borrowing available
to the Borrower on the applicable Funding Date by transferring same day funds to
Borrower's Designated Account. Each Revolving Loan made solely by the Bank
pursuant to this Section 1.2(h) is herein referred to as a "Non-Ratable Loan",
and such Revolving Loans are collectively referred to as the "Non-Ratable
Loans." Each Non-Ratable Loan shall be subject to all the terms and conditions
applicable to other Revolving Loans except that all payments thereon shall be
payable to the Bank solely for its own account. The aggregate amount of
Non-Ratable Loans outstanding at any time shall not exceed $5,000,000. The Agent
shall not request the Bank to make any Non-Ratable Loan if (A) the Agent has
received written notice from any Lender that one or more of the applicable
conditions precedent set forth in ARTICLE 8 (Conditions of Lending) will not be
satisfied on the requested Funding Date for the applicable Borrowing, or (B) the
requested Borrowing would exceed Availability on that Funding Date.
(ii) The Non-Ratable Loans shall be secured
by the Agent's Liens in and to the Collateral and shall constitute Base Rate
Revolving Loans and Obligations hereunder.
(i) Agent Advances.
(i) Subject to the limitations set forth
below, the Agent is authorized by the Borrower and the Lenders, from time to
time in the Agent's sole discretion, (A) after the occurrence of a Default or an
Event of Default, or (B) at any time that any of the other conditions precedent
set forth in ARTICLE 8 (Conditions of Lending) have not been satisfied, to make
Base Rate Revolving Loans to the Borrower on behalf of the Lenders in an
aggregate amount outstanding at any time not to exceed 10% of the Borrowing Base
but not in excess of the Maximum Revolver Amount which the Agent, in its
reasonable business judgment, deems necessary or desirable (1) to preserve or
protect the Collateral, or any portion thereof, (2) to enhance the likelihood
of, or maximize the amount of, repayment of the Loans and other Obligations, or
(3) to pay any other amount chargeable to the Borrower pursuant to the terms of
this Agreement, including costs, fees and expenses as described in Section 13.7
(Fees and Expenses) (any of such advances are herein referred to as "Agent
Advances"); provided, that the Required Lenders may at any time revoke the
Agent's authorization to make Agent Advances.
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Any such revocation must be in writing and shall become effective prospectively
upon the Agent's receipt thereof.
(ii) The Agent Advances shall be secured by
the Agent's Liens in and to the Collateral and shall constitute Base Rate
Revolving Loans and Obligations hereunder.
1.3 Term Loans.
(a) Amounts of Term Loans. Each Lender severally
agrees to make a term loan (any such term loan being referred to as a "Term
Loan" and such term loans being referred to collectively as the "Term Loans") to
the Borrower on the Closing Date, upon the satisfaction of the conditions
precedent set forth in ARTICLE 8 (Conditions of Lending), in an amount equal to
such Lender's Pro Rata Share (based on such Lender's Pro Rata Share of Term Loan
Commitments) of $9,000,000. The Term Loans shall initially be Base Rate Term
Loans.
(b) Making of Term Loans. Each Lender shall make
the amount of such Lender's Term Loan available to the Agent in same day funds,
to Agent's designated account, not later than 3:00 p.m. (Eastern time) on the
Closing Date. After the Agent's receipt of the proceeds of such Term Loans, upon
satisfaction of the conditions precedent set forth in ARTICLE 8 (Conditions of
Lending), the Agent shall make the proceeds of such Term Loans available to the
Borrower on such Funding Date by transferring same day funds equal to the
proceeds of such Term Loans received by the Agent to an account of the Borrower
designated in writing by the Borrower or as the Borrower shall otherwise
instruct in writing.
(c) Term Loan Notes. The Borrower shall execute and
deliver to the Agent on behalf of each Lender, on the Closing Date, a promissory
note, substantially in the form of Exhibit A-2 attached hereto and made a part
hereof (such promissory notes, together with any new notes issued pursuant to
Section 11.2 (Assignments; Participations) upon the assignment of any portion of
any Lender's Term Loan, being hereinafter referred to collectively as the "Term
Loan Notes" and each of such promissory notes being hereinafter referred to
individually as a "Term Loan Note"). The Term Loan Notes shall evidence each
Lender's Term Loan, in an original principal amount equal to that Lender's Pro
Rata Share of the Term Loan and with other appropriate insertions. Each Term
Loan Note shall be dated the Closing Date and stated to amortize in sixty (60)
monthly installments. Each of the first fifty-nine (59) installments of
principal shall be in an amount equal to such Lender's Pro Rata Share of the
Term Loan Commitments multiplied by $75,000 and shall be payable on the first
day of each month, commencing on July 1, 2001 and ending on May 1, 2006. The
final installment of principal shall be in the amount of $4,575,000 or otherwise
in an amount equal to each Lender's Pro Rata Share of the then remaining
principal balance of the Term Loans, and shall be payable on the Stated
Termination Date. Each such installment shall be payable to the Agent for the
account of the applicable Lender. The Term Loans shall be payable in full on the
Termination Date. Payments or prepayments of the Term Loans may not be
reborrowed.
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1.4 Letters of Credit.
(a) Agreement to Issue or Cause To Issue. Subject to
the terms and conditions of this Agreement, the Agent agrees (i) to cause the
Letter of Credit Issuer to issue for the account of the Borrower one or more
commercial/documentary and standby letters of credit ("Letter of Credit") and/or
(ii) to provide credit support or other enhancement to a Letter of Credit Issuer
acceptable to Agent, which issues a Letter of Credit for the account of the
Borrower (any such credit support or enhancement being herein referred to as a
"Credit Support") from time to time during the term of this Agreement.
(b) Amounts; Outside Expiration Date. The Agent
shall not have any obligation to issue or cause to be issued any Letter of
Credit or to provide Credit Support for any Letter of Credit at any time if: (i)
the maximum face amount of the requested Letter of Credit is greater than the
Unused Letter of Credit Subfacility at such time; (ii) the maximum undrawn
amount of the requested Letter of Credit and all commissions, fees, and charges
due from the Borrower in connection with the opening thereof would exceed
Availability at such time; or (iii) such Letter of Credit has an expiration date
less than thirty (30) days prior to the Stated Termination Date or more than
twelve (12) months from the date of issuance for standby letters of credit and
one hundred and eighty (180) days for documentary letters of credit. With
respect to any Letter of Credit which contains any "evergreen" or automatic
renewal provision, each Lender shall be deemed to have consented to any such
extension or renewal unless any such Lender shall have provided to the Agent,
written notice that it declines to consent to any such extension or renewal at
least thirty (30) days prior to the date on which the Letter of Credit Issuer is
entitled to decline to extend or renew the Letter of Credit. If all of the
requirements of this Section 1.4 (Letters of Credit) are met and no Default or
Event of Default has occurred, no Lender shall decline to consent to any such
extension or renewal.
(c) Other Conditions. In addition to conditions
precedent contained in ARTICLE 8 (Conditions of Lending), the obligation of the
Agent to issue or to cause to be issued any Letter of Credit or to provide
Credit Support for any Letter of Credit is subject to the following conditions
precedent having been satisfied in a manner reasonably satisfactory to the
Agent:
(i) The Borrower shall have delivered to the
Letter of Credit Issuer, at such times and in such manner as such Letter of
Credit Issuer may prescribe, an application in form and substance satisfactory
to such Letter of Credit Issuer and reasonably satisfactory to the Agent for the
issuance of the Letter of Credit and such other documents as may be required
pursuant to the terms thereof, and the form, terms and purpose of the proposed
Letter of Credit shall be reasonably satisfactory to the Agent and the Letter of
Credit Issuer; and
(ii) As of the date of issuance, no order of
any court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain money center banks generally from issuing letters of credit
of the type and in the amount of the proposed Letter of Credit, and no law, rule
or regulation applicable to money center banks generally and no request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over money center banks generally shall prohibit, or
request that the proposed Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or the issuance of such Letters of Credit.
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(d) Issuance of Letters of Credit.
(i) Request for Issuance. Borrower must
notify the Agent of a requested Letter of Credit at least three (3) Business
Days prior to the proposed issuance date. Such notice shall be irrevocable and
must specify the original face amount of the Letter of Credit requested, the
Business Day of issuance of such requested Letter of Credit, whether such Letter
of Credit may be drawn in a single or in partial draws, the Business Day on
which the requested Letter of Credit is to expire, the purpose for which such
Letter of Credit is to be issued, and the beneficiary of the requested Letter of
Credit. The Borrower shall attach to such notice a signed application as
described herein and the proposed form of the Letter of Credit.
(ii) Responsibilities of the Agent; Issuance.
As of the Business Day immediately preceding the requested issuance date of the
Letter of Credit, the Agent shall determine the amount of the applicable Unused
Letter of Credit Subfacility and Availability. If (A) the face amount of the
requested Letter of Credit is less than the Unused Letter of Credit Subfacility
and (B) the amount of such requested Letter of Credit and all commissions, fees,
and charges due from the Borrower in connection with the opening thereof would
not exceed Availability, the Agent shall cause the Letter of Credit Issuer to
issue the requested Letter of Credit on the requested issuance date so long as
the other conditions hereof are met.
(iii) No Extensions or Amendment. The Agent
shall not be obligated to cause the Letter of Credit Issuer to extend or amend
any Letter of Credit issued pursuant hereto unless the requirements of this
Section 1.4 are met as though a new Letter of Credit were being requested and
issued.
(e) Payments Pursuant to Letters of Credit. The
Borrower agrees to reimburse immediately the Letter of Credit Issuer for any
draw under any Letter of Credit and the Agent for the account of the Lenders
upon any payment pursuant to any Credit Support, and to pay the Letter of Credit
Issuer the amount of all other charges and fees payable to the Letter of Credit
Issuer in connection with any Letter of Credit immediately when due,
irrespective of any claim, setoff, defense or other right which the Borrower may
have at any time against the Letter of Credit Issuer or any other Person. Each
drawing under any Letter of Credit shall constitute a request by the Borrower to
the Agent for a Borrowing of a Base Rate Revolving Loan in the amount of such
drawing. The Funding Date with respect to such borrowing shall be the date of
such drawing.
(f) Indemnification; Exoneration; Power of Attorney.
(i) Indemnification. In addition to amounts
payable as elsewhere provided in this Section 1.4, the Borrower agrees to
protect, indemnify, pay and save the Lenders and the Agent harmless from and
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) which any Lender or
the Agent (other than a Lender in its capacity as Letter of Credit Issuer) may
incur or be subject to as a consequence, direct or indirect, of the issuance of
any Letter of Credit or the provision of any Credit Support or enhancement in
connection therewith. The Borrower's obligations under this Section 1.4(f) shall
survive payment of all other Obligations.
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(ii) Assumption of Risk by the Borrower. As
among the Borrower, the Lenders, and the Agent, the Borrower assumes all risks
of the acts and omissions of, or misuse of any of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit except if such risks are the
result of gross negligence or willful misconduct of any Lender or the Agent. In
furtherance and not in limitation of the foregoing, the Lenders and the Agent
shall not be responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any Person in
connection with the application for and issuance of and presentation of drafts
with respect to any of the Letters of Credit, even if it should prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (C) the failure of the beneficiary of any
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (D) errors, omissions, interruptions, or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (G) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (H) any
consequences arising from causes beyond the control of the Lenders or the Agent,
including any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority or (I) the Letter of Credit
Issuer's honor of a draw for which the draw or any certificate fails to comply
in any respect with the terms of the Letter of Credit. None of the foregoing
shall affect, impair or prevent the vesting of any rights or powers of the Agent
or any Lender under this Section 1.4(f).
(iii) Exoneration. Except as a result of the
gross negligence or willful misconduct of Agent or any Lender, no action or
omission whatsoever by Agent or any Lender (excluding any Lender in its capacity
as a Letter of Credit Issuer) shall result in any liability of Agent or and
Lender to the Borrower, or relieve the Borrower of any of its obligations
hereunder to any such Person.
(iv) Rights Against Letter of Credit Issuer.
Nothing contained in this Agreement is intended to limit the Borrower's rights,
if any, with respect to the Letter of Credit Issuer which arise as a result of
the letter of credit application and related documents executed by and between
the Borrower and the Letter of Credit Issuer.
(v) Account Party. The Borrower hereby
authorizes and directs any Letter of Credit Issuer to name the Borrower as the
"Account Party" therein and to deliver to the Agent all instruments, documents
and other writings and property received by the Letter of Credit Issuer pursuant
to the Letter of Credit, and to accept and rely upon the Agent's instructions
and agreements with respect to all matters arising in connection with the Letter
of Credit or the application therefor.
(g) Supporting Letter of Credit; Cash Collateral.
If, notwithstanding the provisions of Section 1.4(b) (Amounts; Outside
Expiration Date) and ARTICLE 10 (Term and Termination), any Letter of Credit or
Credit Support is outstanding upon the termination of
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this Agreement (each a "Post-Expiration Date Letter of Credit" and collectively,
the "Post-Expiration Date Letters of Credit"), then upon such termination
either:
(i) the Borrower shall deposit with the
Agent, for the ratable benefit of the Agent and the Lenders based on each
Lender's Pro Rata Share of the Revolving Loan Commitments, with respect to each
Letter of Credit or Credit Support then outstanding, a standby letter of credit
(a "Supporting Letter of Credit") in form and substance satisfactory to the
Agent, issued by an issuer satisfactory to the Agent in an amount equal to the
greatest amount for which such Letter of Credit or such Credit Support may be
drawn plus any fees and expenses associated with such Letter of Credit or such
Credit Support, under which Supporting Letter of Credit the Agent is entitled to
draw amounts necessary to reimburse the Agent and the Lenders for payments to be
made by the Agent and the Lenders under such Letter of Credit or Credit Support
and any fees and expenses associated with such Letter of Credit or Credit
Support. Such Supporting Letter of Credit shall be held by the Agent, for the
ratable benefit of the Agent and the Lenders based on each Lender's Pro Rata
Share of the Revolving Loan Commitments, as security for, and to provide for the
payment of, the aggregate undrawn amount of such Letters of Credit or such
Credit Support remaining outstanding; or
(ii) effective as of the Business Day
preceding the Termination Date and without prior notice to or the consent of the
Borrower, the Lenders shall make advances of the Revolving Loans for the account
of the Borrower in the aggregate face amount of all Post-Expiration Date Letters
of Credit. The amount of each Lender's advance shall be equal to its Revolving
Credit Pro Rata Share of the aggregate face amount of all such Letters of
Credit. The Agent shall deposit the proceeds of such advances into one or more
non-interest bearing accounts with and in the name of the Agent and over which
the Agent alone shall have exclusive power of access and withdrawal
(collectively, the "Letter of Credit Cash Collateral Account"). The Letter of
Credit Cash Collateral Account is to be held by the Agent, for the ratable
benefit of the Lenders based on each Lender's Pro Rata Share of the Revolving
Loan Commitments, as additional collateral and security for any Obligations
relating to the Post-Expiration Date Letters of Credit. The Borrower hereby
assigns, pledges, grants and sets over to the Agent, for the ratable benefit of
the Lenders based on each Lender's Pro Rata Share of the Revolving Loan
Commitments, a first priority security interest in, and Lien on, all of the
funds on deposit in the Letter of Credit Cash Collateral Account, together with
any and all Proceeds and products thereof as additional collateral and security
for the Obligations relating to the Post-Expiration Date Letters of Credit. The
Borrower acknowledges and agrees that the Agent shall be entitled to fund any
draw or draft on any Post-Expiration Date Letter of Credit from the monies on
deposit in the Letter of Credit Cash Collateral Account without notice to or
consent of the Borrower or any of the Lenders. The Borrower further acknowledges
and agrees that the Agent's election to fund any draw or draft on any
Post-Expiration Date Letter of Credit from the Letter of Credit Cash Collateral
shall in no way limit, impair, lessen, reduce, release or otherwise adversely
affect the Borrower's obligation to pay any Letter of Credit Obligations under
or relating to the Post-Expiration Date Letters of Credit. At such time as all
Post-Expiration Date Letters of Credit have expired and all Letter of Credit
Obligations relating to the Post-Expiration Date Letters of Credit have been
paid in full, the Agent agrees to apply the amount of any remaining funds on
deposit in the Letter of Credit Cash Collateral Account to the then unpaid
balance of the Obligations under the Revolving Credit Facility in such order and
manner as the
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Agent shall determine in its sole and absolute discretion in accordance with the
provisions of this Agreement.
1.5 Bank Products
The Borrower may request and the Agent may, in its sole and
absolute discretion, arrange for the Borrower to obtain from the Bank or the
Bank's Affiliates Bank Products although the Borrower is not required to do so.
If Bank Products are provided by an Affiliate of the Bank, the Borrower agrees
to indemnify and hold the Agent, the Bank and the Lenders harmless from any and
all costs and obligations now or hereafter incurred by the Agent, the Bank or
any of the Lenders which arise from any indemnity given by the Agent to its
Affiliates related to such Bank Products; provided, however, nothing contained
herein is intended to limit the Borrower's rights, with respect to the Bank or
its Affiliates, if any, which arise as a result of the execution of documents by
and between the Borrower and the Bank which relate to Bank Products. The
agreement contained in this Section 1.5 shall survive termination of this
Agreement. The Borrower acknowledges and agrees that the obtaining of Bank
Products from the Bank or the Bank's Affiliates (a) is in the sole and absolute
discretion of the Bank or the Bank's Affiliates, and (b) is subject to all rules
and regulations of the Bank or the Bank's Affiliates.
ARTICLE 2
INTEREST AND FEES
2.1 Interest.
(a) Interest Rates. All outstanding Obligations
shall bear interest on the unpaid principal amount thereof (including, to the
extent permitted by law, on interest thereon not paid when due) from the date
made until paid in full in cash at a rate determined by reference to the Base
Rate or the LIBOR Rate plus the Applicable Margins as set forth below, but not
to exceed the Maximum Rate. If at any time Loans are outstanding with respect to
which the Borrower has not delivered to the Agent a notice specifying the basis
for determining the interest rate applicable thereto in accordance herewith,
those Loans shall bear interest at a rate determined by reference to the Base
Rate until notice to the contrary has been given to the Agent in accordance with
this Agreement and such notice has become effective. Except as otherwise
provided herein, the outstanding Obligations shall bear interest as follows:
(i) For all Base Rate Term Loans at a
fluctuating per annum rate equal to the Base Rate plus the Applicable Margin;
(ii) For all Base Rate Revolving Loans and
other Obligations (other than Base Rate Term Loans and LIBOR Rate Loans) at a
fluctuating per annum rate equal to the Base Rate plus the Applicable Margin;
(iii) For all LIBOR Term Loans at a per annum
rate equal to the LIBOR Rate plus the Applicable Margin; and
(iv) For all LIBOR Revolving Loans at a per
annum rate equal to the LIBOR Rate plus the Applicable Margin.
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Each change in the Base Rate shall be reflected in the interest rate
applicable to Base Rate Loans as of the effective date of such change. All
interest charges shall be computed on the basis of a year of 360 days and actual
days elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year). The Borrower shall pay to the Agent, for the ratable
benefit of Lenders, interest accrued on all Base Rate Loans in arrears on the
first day of each month hereafter and on the Termination Date. The Borrower
shall pay to the Agent, for the ratable benefit of Lenders, interest on all
LIBOR Rate Loans in arrears on each LIBOR Interest Payment Date.
(b) Default Rate. If any Event of Default occurs and
the Agent or the Required Lenders in their discretion so elect, then, while any
such Event of Default is continuing, all of the Obligations shall bear interest
at the Default Rate applicable thereto.
2.2 Continuation and Conversion Elections.
(a) The Borrower may:
(i) elect, as of any Business Day, in the
case of Base Rate Loans to convert any Base Rate Loans (or any part thereof in
an amount not less than $1,000,000, or that is in an integral multiple of
$500,000 in excess thereof) into LIBOR Rate Loans; or
(ii) elect, as of the last day of the
applicable Interest Period, to continue any LIBOR Rate Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less than
$1,000,000, or that is in an integral multiple of $500,000 in excess thereof);
provided, that if at any time the aggregate amount of LIBOR Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $1,000,000, such LIBOR Rate Loans shall
automatically convert into Base Rate Loans; provided further that if the notice
shall fail to specify the duration of the Interest Period, such Interest Period
shall be one (1) month.
(b) The Borrower shall deliver a notice of
continuation/conversion ("Notice of Continuation/Conversion") to the Agent not
later than 12:00 noon (Eastern time) at least three (3) Business Days in advance
of the Continuation/Conversion Date, if the Loans are to be converted into or
continued as LIBOR Rate Loans and specifying:
(i) the proposed Continuation/Conversion
Date;
(ii) the aggregate amount of Loans to be
converted or renewed;
(iii) the type of Loans resulting from the
proposed conversion or continuation; and
(iv) the duration of the requested Interest
Period, provided, however, the Borrower may not select an Interest Period that
ends after the Stated Termination Date.
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(c) If upon the expiration of any Interest Period
applicable to LIBOR Rate Loans, the Borrower has failed to select timely a new
Interest Period to be applicable to LIBOR Rate Loans or if any Default or Event
of Default then exists, the Borrower shall be deemed to have elected to convert
such LIBOR Rate Loans into Base Rate Loans effective as of the expiration date
of such Interest Period.
(d) The Agent will promptly notify each Lender of
its receipt of a Notice of Continuation/Conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Lender.
(e) There may not be more than six (6) different
LIBOR Rate Loans in effect hereunder at any time.
2.3 Maximum Interest Rate.
In no event shall any interest rate provided for hereunder
exceed the maximum rate legally chargeable by any Lender under applicable law
for such Lender with respect to loans of the type provided for hereunder (the
"Maximum Rate"). If, in any month, any interest rate, absent such limitation,
would have exceeded the Maximum Rate, then the interest rate for that month
shall be the Maximum Rate, and, if in future months, that interest rate would
otherwise be less than the Maximum Rate, then that interest rate shall remain at
the Maximum Rate until such time as the amount of interest paid hereunder equals
the amount of interest which would have been paid if the same had not been
limited by the Maximum Rate. In the event that, upon payment in full of the
Obligations, the total amount of interest paid or accrued under the terms of
this Agreement is less than the total amount of interest which would, but for
this Section 2.3, have been paid or accrued if the interest rate otherwise set
forth in this Agreement had at all times been in effect, then the Borrower
shall, to the extent permitted by applicable law, pay the Agent, for the account
of the Lenders, an amount equal to the excess of (a) the lesser of (i) the
amount of interest which would have been charged if the Maximum Rate had, at all
times, been in effect or (ii) the amount of interest which would have accrued
had the interest rate otherwise set forth in this Agreement, at all times, been
in effect over (b) the amount of interest actually paid or accrued under this
Agreement. If a court of competent jurisdiction determines that the Agent and/or
any Lender has received interest and other charges hereunder in excess of the
Maximum Rate, such excess shall be deemed received on account of, and shall
automatically be applied to reduce, the Obligations other than interest, in the
inverse order of maturity, and if there are no Obligations outstanding, the
Agent and/or such Lender shall refund to the Borrower such excess.
2.4 Fees.
The Borrower agrees to pay the Agent on the Closing Date the
closing fee (the "Closing Fee") and other fees as set forth in the fee letters
dated March 7, 2001, between the Agent and Borrower.
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2.5 Unused Line Fee.
On the first day of each month and on the Termination Date the
Borrower agrees to pay to the Agent, for the account of the Lenders in
accordance with their respective Pro Rata Shares of the Revolving Loan
Commitments, an unused line fee (the "Unused Line Fee") as determined with
reference to the applicable Pricing Ratio as set forth below times the amount by
which the Maximum Revolver Amount exceeded the sum of the average daily
outstanding amount of Revolving Loans and the average daily undrawn face amount
of outstanding Letters of Credit, during the immediately preceding month or
shorter period if calculated for the first month hereafter or on the Termination
Date.
-------------------------------------------------------------------------------------
PRICING RATIO UNUSED FEE
------------- ----------
-------------------------------------------------------------------------------------
Less than or equal to 3.5 to 1.0 30 basis points per annum
-------------------------------------------------------------------------------------
Greater than 3.5 and less than or equal to 4.0 35 basis points per annum
-------------------------------------------------------------------------------------
Greater than 4.0 to 1.0 40 basis points per annum
-------------------------------------------------------------------------------------
The Unused Line Fee shall be computed on the basis of a 360-day
year for the actual number of days elapsed. All principal payments received by
the Agent shall be deemed to be credited to the Borrower's Loan Account
immediately upon receipt for purposes of calculating the Unused Line Fee
pursuant to this Section 2.5. As of the Closing Date, and continuing until the
delivery of the first financial statements required pursuant to Section 5.2(b)
(Quarterly Statements and Information), the Unused Line Fee shall be 40 basis
points per annum.
2.6 Letter of Credit Fee.
The Borrower agrees to pay to the Agent, for the account of the
Lenders, in accordance with their respective Pro Rata Shares of the Revolving
Loan Commitments, for each Letter of Credit, a fee (the "Letter of Credit Fee")
equal to two percent (2%) per annum, and to the Letter of Credit Issuer, all
out-of-pocket costs, fees and expenses incurred by the Letter of Credit Issuer
in connection with the application for, processing of, issuance of, or amendment
to any Letter of Credit. The Letter of Credit Fee shall be payable monthly in
arrears on the first day of each month following any month in which a Letter of
Credit is outstanding and on the Termination Date. The Letter of Credit Fee
shall be computed on the basis of a 360-day year for the actual number of days
elapsed.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1 Revolving Loans.
The Borrower shall repay the outstanding principal balance of
the Revolving Loans, plus all accrued but unpaid interest thereon, on the
Termination Date. The Borrower may prepay Revolving Loans at any time, and
reborrow subject to the terms of this Agreement. In
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addition, and without limiting the generality of the foregoing, upon demand the
Borrower shall pay to the Agent, for account of the Lenders, the amount, without
duplication, by which the Aggregate Revolver Outstandings exceeds the lesser of
the Borrowing Base or the Maximum Revolver Amount.
The Borrower shall direct the mailing of all payments from its
Account Debtors to a post-office box designated by the Agent, or to such other
additional or replacement post-office boxes pursuant to the request of the Agent
from time to time (collectively, the "Payment Account"). The Borrower shall
direct the Clearing Bank to transmit to the Agent on a daily basis all deposits
made to the Payment Account. All sums received from the Payment Account shall be
applied to the outstanding Obligations related to the Revolving Loans. The Agent
shall have unrestricted and exclusive access to the Payment Account subject to
the terms of the Blocked Account Agreement.
3.2 Termination of Facility.
The Borrower may terminate this Agreement upon at least fifteen
(15) Business Days' notice to the Agent and the Lenders, upon (a) the payment in
full of all outstanding Revolving Loans, together with accrued interest thereon,
and the cancellation and return of all outstanding Letters of Credit, (b) the
prepayment in full of the Term Loans, together with accrued and unpaid interest
thereon, (c) the payment of the early termination fee set forth below, (d) the
payment in full in cash of all reimbursable expenses and other Obligations, and
(e) with respect to any LIBOR Rate Loans prepaid, payment of the amounts due
under Section 4.4 (Funding Losses), if any. In addition, the Borrower may prepay
the Term Loans in whole or in part in accordance with Section 3.4 (Prepayments
of the Term Loans); provided each such prepayment is accompanied by (a) accrued
and unpaid interest on the portion of the Term Loans prepaid and (b) with
respect to LIBOR Rate Loans, payments of amounts due under Section 4.4 (Funding
Losses), if any. If this Agreement is terminated at any time prior to the Stated
Termination Date, whether pursuant to this Section 3.2 or pursuant to Section
9.2 (Remedies), the Borrower shall pay to the Agent, for the account of the
Lenders, an early termination fee determined in accordance with the following
table:
-----------------------------------------------------------------------------------------------------------
Period During Which Early Termination Occurs Early Termination Fee
-------------------------------------------- ---------------------
-----------------------------------------------------------------------------------------------------------
On or prior to the first Anniversary Date 1.53% of the Maximum Revolver Amount
-----------------------------------------------------------------------------------------------------------
After the first Anniversary Date but on or prior to
the third Anniversary Date .62% of the Maximum Revolver Amount
-----------------------------------------------------------------------------------------------------------
Notwithstanding the foregoing, if termination occurs after the
first Anniversary Date due to the Borrower refinancing the Revolving Loans with
the Bank or any of its affiliates pursuant to a credit agreement in which the
Bank is the sole lender or agent, the Early Termination Fee shall be waived.
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3.3 Repayment of the Term Loans.
The Borrower agrees to repay the principal of the Term Loans to
the Agent, for the account of the Lenders as set forth in Section 1.3 (Term
Loans).
3.4 Prepayments of the Term Loans.
(a) The Borrower may prepay the principal of the
Term Loans in whole or in part, at any time and from time to time upon at least
five (5) Business Days' prior written notice to the Agent and the Lenders. All
voluntary prepayments of the principal of the Term Loans shall be accompanied by
the payment of all accrued but unpaid interest on the Term Loans to the date of
prepayment and prepayment fees in accordance with Section 3.2 (Termination of
Facility). Any voluntary prepayment of less than all of the outstanding
principal of the Term Loans shall be applied to the installments of principal of
the Term Loans in the inverse order of maturity. Amounts prepaid in respect of
the Term Loans may not be reborrowed.
(b) Immediately upon receipt by Borrower or its
Subsidiaries of proceeds of the ▇▇▇▇▇▇ Springs Settlement or proceeds of any
disposition of fixed assets with a book value in excess of $250,000, Borrower
shall prepay the Term Loans in an amount equal to all such proceeds, net of (i)
commissions and other reasonable and customary transaction costs, fees and
expenses properly attributable to such transaction and payable by Borrower in
connection therewith (in each case, paid to non-Affiliates), (ii) transfer
taxes, (iii) amounts payable to holders of senior Liens (to the extent such
Liens constitute Permitted Liens hereunder), if any, and (iv) an appropriate
reserve for income taxes in accordance with GAAP in connection therewith ("Net
Proceeds"). Any such prepayment shall be applied to the installments of
principal of the Term Loans in the inverse order of maturity.
(c) Prepayments from the sale of Accounts in
connection with a disposition of assets in accordance with subsection (b) of
this Section 3.4 shall be applied in a manner determined by the Agent and the
Required Lenders in their sole discretion.
(d) No provision contained in this Section 3.4 shall
constitute a consent to an asset disposition that is otherwise not permitted by
the terms of this Agreement.
3.5 LIBOR Rate Loan Prepayments.
In connection with any prepayment, if any LIBOR Rate
Loans are prepaid prior to the expiration date of the Interest Period applicable
thereto, the Borrower shall pay to the Lenders the amounts described in Section
4.4 (Funding Losses).
3.6 Payments by the Borrower.
(a) All payments to be made by the Borrower shall be
made without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrower shall be made to the Agent for the
account of the Lenders, at the account designated by the Agent and shall be made
in Dollars and in immediately available funds, no later than 12:00 noon (Eastern
time) on the date specified herein. Any payment
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received by the Agent after such time shall be deemed (for purposes of
calculating interest only) to have been received on the following Business Day
and any applicable interest shall continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period", whenever any payment is due on a day other than
a Business Day, such payment shall be due on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
3.7 Payments as Revolving Loans.
At the election of Agent, all payments of principal, interest,
reimbursement obligations in connection with Letters of Credit and Credit
Support for Letters of Credit, fees, premiums, reimbursable expenses and other
sums payable hereunder, may be paid from the proceeds of Revolving Loans made
hereunder. The Borrower hereby irrevocably authorizes the Agent to charge the
Loan Account for the purpose of paying all amounts from time to time due
hereunder and agrees that all such amounts charged shall constitute Revolving
Loans (including Non-Ratable Loans and Agent Advances).
3.8 Apportionment, Application and Reversal of Payments.
Principal and interest payments shall be apportioned ratably
among the Lenders (according to the unpaid principal balance of the Loans to
which such payments relate held by each Lender) and payments of the fees shall,
as applicable, be apportioned ratably among the Lenders, except for fees payable
solely to Agent and the Letter of Credit Issuer and except as provided in
Section 11.1(b) (Amendments and Waivers). All payments shall be remitted to the
Agent and all such payments not relating to principal or interest of specific
Loans, or not constituting payment of specific fees, and all proceeds of
Accounts or other Collateral received by the Agent, shall be applied, ratably,
subject to the provisions of this Agreement, first, to pay any fees, indemnities
or expense reimbursements (but excluding any amounts relating to Bank Products)
then due to the Agent from the Borrower; second, to pay any fees or expense
reimbursements then due to the Lenders from the Borrower (but excluding any
amounts relating to Bank Products); third, to pay interest due in respect of all
Loans, including Non-Ratable Loans and Agent Advances; fourth, to pay or prepay
principal of the Non-Ratable Loans and Agent Advances; fifth, to pay or prepay
principal of the Revolving Loans (other than Non-Ratable Loans and Agent
Advances) and unpaid reimbursement obligations in respect of Letters of Credit;
sixth, to pay or prepay principal of the Term Loans; seventh, to the payment of
any amount then due to the Agent with respect to Bank Products; and eighth, to
pay an amount to Agent equal to all outstanding Letter of Credit Obligations and
contingent outstanding Obligations related to Bank Products not yet due to be
held as cash collateral for such Obligations. Notwithstanding anything to the
contrary contained in this Agreement, unless so directed by the Borrower, or
unless an Event of Default has occurred, neither the Agent nor any Lender shall
apply any payments that it receives to any LIBOR Rate Loan, except (a) on the
expiration date of the Interest Period applicable to any such LIBOR Rate Loan,
or (b) in the event, and only to the extent, that there are no outstanding Base
Rate Loans and, in any event, the Borrower shall pay LIBOR breakage losses in
accordance with Section 4.4 (Funding Losses). The Agent and the Lenders shall
have the continuing and exclusive right to apply and reverse
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and reapply any and all such proceeds and payments to any portion of the
Obligations.
3.9 Indemnity for Returned Payments.
If after receipt of any payment that is applied to the payment
of all or any part of the Obligations, the Agent, any Lender, the Bank or any
Affiliate of the Bank is for any reason compelled to surrender such payment or
proceeds to any Person because such payment or application of proceeds is
invalidated, declared fraudulent, set aside, determined to be void or voidable
as a preference, impermissible setoff, or a diversion of trust funds, or for any
other reason, then the Obligations or part thereof intended to be satisfied
shall be revived and continued and this Agreement shall continue in full force
as if such payment or proceeds had not been received by the Agent or such Lender
and the Borrower shall be liable to pay to the Agent and the Lenders, and hereby
does indemnify the Agent and the Lenders and hold the Agent and the Lenders
harmless for the amount of such payment or proceeds surrendered. The provisions
of this Section 3.9 shall be and remain effective notwithstanding any contrary
action that may have been taken by the Agent or any Lender in reliance upon such
payment or application of proceeds, and any such contrary action so taken shall
be without prejudice to the Agent's and the Lenders' rights under this Agreement
and shall be deemed to have been conditioned upon such payment or application of
proceeds having become final and irrevocable. The provisions of this Section 3.9
shall survive the termination of this Agreement.
3.10 Agent's and Lenders' Books and Records; Monthly
Statements.
The Agent shall record the principal amount of the Loans owing
to each Lender, the undrawn face amount of all outstanding Letters of Credit and
the aggregate amount of unpaid reimbursement obligations outstanding with
respect to the Letters of Credit from time to time on its books. In addition,
each Lender may note the date and amount of each payment or prepayment of
principal of such Lender's Loans in its books and records. Failure by Agent or
any Lender to make such notation shall not affect the obligations of the
Borrower with respect to the Loans or the Letters of Credit. The Borrower agrees
that the Agent's and each Lender's books and records showing the Obligations and
the transactions pursuant to this Agreement and the other Loan Documents shall
be admissible in any action or proceeding arising therefrom, and shall
constitute rebuttably presumptive proof thereof, irrespective of whether any
Obligation is also evidenced by a promissory note or other instrument. The Agent
will provide to the Borrower a monthly statement of Loans, payments, and other
transactions pursuant to this Agreement. Such statement shall be deemed correct,
accurate, and binding on the Borrower and an account stated (except for
reversals and reapplications of payments made as provided in Section 3.8
(Apportionment, Application and Reversal of Payments) and corrections of errors
discovered by the Agent), unless the Borrower notifies the Agent in writing to
the contrary within thirty (30) days after such statement is rendered. In the
event a timely written notice of objections is given by the Borrower, only the
items to which exception is expressly made will be considered to be disputed by
the Borrower.
ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
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4.1 Taxes.
(a) Any and all payments by the Borrower to each
Lender or the Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for any Taxes. In
addition, the Borrower shall pay all Other Taxes.
(b) The Borrower agrees to indemnify and hold
harmless each Lender and the Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.1) paid by any Lender or the Agent and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within thirty (30) days after the date such Lender or the Agent makes written
demand therefor.
(c) If the Borrower shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section 4.1) such Lender or the Agent, as the case
may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions
and withholdings;
(iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority
in accordance with applicable law; and
(iv) the Borrower shall also pay to each
Lender or the Agent for the account of such Lender, at the time interest
is paid, all additional amounts which the respective Lender specifies as
necessary to preserve the after-tax yield such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) At the Agent's request, within thirty (30) days
after the date of any payment by the Borrower of Taxes or Other Taxes, the
Borrower shall furnish the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to the
Agent.
(e) If the Borrower is required to pay additional
amounts to any Lender or the Agent pursuant to subsection (c) of this Section
4.1, then such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its lending office so as
to eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
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4.2 Illegality.
(a) If any Lender determines that the introduction
of any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable lending office to make
LIBOR Rate Loans, then, on notice thereof by that Lender to the Borrower through
the Agent, any obligation of that Lender to make LIBOR Rate Loans shall be
suspended until that Lender notifies the Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to
maintain any LIBOR Rate Loan, the Borrower shall, upon its receipt of notice of
such fact and demand from such Lender (with a copy to the Agent), prepay in full
such LIBOR Rate Loans of that Lender then outstanding, together with interest
accrued thereon and amounts required under Section 4.4 (Funding Losses), either
on the last day of the Interest Period thereof, if that Lender may lawfully
continue to maintain such LIBOR Rate Loans to such day, or immediately, if that
Lender may not lawfully continue to maintain such LIBOR Rate Loans. If the
Borrower is required to so prepay any LIBOR Rate Loans, then concurrently with
such prepayment, the Borrower shall borrow from the affected Lender, in the
amount of such repayment, a Base Rate Loan.
4.3 Increased Costs and Reduction of Return.
(a) If any Lender determines that due to either (i)
the introduction of or any change in the interpretation of any law or regulation
or (ii) the compliance by that Lender with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Lender of agreeing to make
or making, funding or maintaining any LIBOR Rate Loans, then the Borrower shall
be liable for, and shall from time to time, upon demand (with a copy of such
demand to be sent to the Agent), pay to the Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Lender or any corporation or other entity controlling such
Lender with any Capital Adequacy Regulation, affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
corporation or other entity controlling such Lender and (taking into
consideration such Lender's or such corporation's or other entity's policies
with respect to capital adequacy and such Lender's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitments, loans, credits or obligations under this Agreement, then, upon
demand of such Lender to the Borrower through the Agent, the Borrower shall pay
to such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such increase.
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4.4 Funding Losses.
The Borrower shall reimburse each Lender and hold each Lender
harmless from any loss or expense that such Lender may sustain or incur as a
consequence of:
(a) the failure of the Borrower to make on a
timely basis any payment of principal of any LIBOR Rate Loan;
(b) the failure of the Borrower to borrow,
continue or convert a Loan after the Borrower has given (or is deemed to
have given) a Notice of Borrowing or a Notice of
Continuation/Conversion; or
(c) the prepayment or other payment
(including after acceleration thereof) of any LIBOR Rate Loans on a day
that is not the last day of the relevant Interest Period;
including any such loss of anticipated profit and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain its
LIBOR Rate Loans or from fees payable to terminate the deposits from which such
funds were obtained. Borrower shall also pay any customary administrative fees
charged by any Lender in connection with the foregoing.
4.5 Inability to Determine Rates.
If the Agent determines that for any reason adequate and
reasonable means do not exist for determining the LIBOR Rate for any requested
Interest Period with respect to a proposed LIBOR Rate Loan, or that the LIBOR
Rate for any requested Interest Period with respect to a proposed LIBOR Rate
Loan does not adequately and fairly reflect the cost to the Lenders of funding
such Loan, the Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans
hereunder shall be suspended until the Agent revokes such notice in writing.
Upon receipt of such notice, the Borrower may revoke any Notice of Borrowing or
Notice of Continuation/Conversion then submitted by it. If the Borrower does not
revoke such Notice, the Lenders shall make, convert or continue the Loans, as
proposed by the Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Loans shall be made, converted or continued
as Base Rate Loans instead of LIBOR Rate Loans.
4.6 Certificates of Agent.
If any Lender claims reimbursement or compensation under this
ARTICLE 4, Agent shall determine the amount thereof and shall deliver to the
Borrower (with a copy to the affected Lender) a certificate setting forth in
reasonable detail the amount payable to the affected Lender, and such
certificate shall be conclusive and binding on the Borrower in the absence of
manifest error.
4.7 Survival.
The agreements and obligations of the Borrower in this ARTICLE 4
shall survive the payment of all other Obligations.
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ARTICLE 5
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
5.1 Books and Records.
The Borrower shall, and shall cause each of the Guarantors to, maintain,
at all times, correct and complete books, records and accounts in which
complete, correct and timely entries are made of its transactions in accordance
with GAAP applied consistently with the audited Financial Statements required to
be delivered pursuant to Section 5.2(a) (Annual Statements and Information). The
Borrower and each of the Guarantors shall, by means of appropriate entries,
reflect in such accounts and in all Financial Statements proper liabilities and
reserves for all taxes and proper provision for depreciation and amortization of
property and bad debts, all in accordance with GAAP. The Borrower and each of
the Guarantors shall maintain at all times books and records pertaining to the
Collateral in such detail, form and scope as the Agent or any Lender shall
reasonably require, including, but not limited to, records of (a) all payments
received and all credits and extensions granted with respect to the Accounts and
(b) all other dealings affecting the Collateral.
5.2 Financial Information.
The Borrower shall, and shall cause each Guarantor to, promptly furnish
to each Lender, all such financial information as the Agent shall reasonably
request. Without limiting the foregoing, the Borrower and each of the Guarantors
will furnish to the Agent, in sufficient copies for distribution by the Agent to
each Lender, in such detail as the Agent or the Lenders shall request, the
following:
(a) Annual Statements and Information. As soon as available,
but in any event not later than one hundred twenty (120) days after the close
of each Fiscal Year, consolidated audited balance sheets, and income
statements, cash flow statements and changes in stockholders' equity for the
Parent and its consolidated Subsidiaries and each unconsolidated Guarantor for
such Fiscal Year, and the accompanying notes thereto, setting forth in each
case in comparative form figures for the previous Fiscal Year, all in
reasonable detail, fairly presenting the financial position and the results of
operations of the Parent and its consolidated Subsidiaries and each of the
Guarantors as at the date thereof and for the Fiscal Year then ended, and
prepared in accordance with GAAP. Such statements shall be examined in
accordance with generally accepted auditing standards by and, in the case of
such statements performed on a consolidated basis, accompanied by a report
thereon unqualified in any respect of independent certified public accountants
selected by the Parent and each of the Guarantors and reasonably satisfactory
to the Agent. The Parent and each of the Guarantors, simultaneously with
retaining such independent public accountants to conduct such annual audit,
shall send a letter to such accountants, with a copy to the Agent and the
Lenders, notifying such accountants that one of the primary purposes for
retaining such accountants' services and having audited financial statements
prepared by them is for use by the Agent and the Lenders. The Borrower and
each of the Guarantors hereby authorizes the Agent to communicate directly
with its certified public accountants and, by this provision, authorizes those
accountants to disclose to the Agent any and all financial statements and
other supporting financial documents and schedules relating to the Parent, the
Borrower and the Guarantors and to discuss directly with the Agent the
finances and
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affairs of the Parent, the Borrower and the Guarantors. The Borrower covenants
that all its Subsidiaries are inactive entities and to the extent that any
Subsidiary at any time becomes active, the Agent or the Lenders may require
consolidating statements on such Subsidiary.
(b) Quarterly Statements and Information. As soon as
available, but in any event not later than forty five (45) days after the
close of each fiscal quarter, consolidated unaudited balance sheets, and
income statements, cash flow statements and changes in stockholders' equity
for the Parent and its consolidated Subsidiaries and each unconsolidated
Guarantor for such fiscal quarter, and the accompanying notes thereto, setting
forth in each case in comparative form figures for the previous fiscal
quarter, all in reasonable detail, fairly presenting the financial position
and the results of operations of the Parent and its consolidated Subsidiaries
and each of the Guarantors as at the date thereof and for the fiscal quarter
then ended, and prepared in accordance with GAAP applied consistently with the
audited Financial Statements required to be delivered pursuant to Section
5.2(a) (Annual Statements and Information). The Parent and each of the
Guarantors shall certify by a certificate signed by its chief financial
officer that all such statements have been prepared in accordance with GAAP
and present fairly the Parent's or Guarantor's financial position as at the
dates thereof and its results of operations for the periods then ended,
subject to normal year-end adjustments.
(c) Monthly Statements and Information. As soon as
available, but in any event not later than thirty (30) days after the end of
each month, consolidated unaudited balance sheets of the Parent and its
consolidated Subsidiaries and each unconsolidated Guarantor as at the end of
such month, and consolidated unaudited income statements and cash flow
statements for the Parent and its consolidated Subsidiaries and each of the
Guarantors for such month and for the period from the beginning of the Fiscal
Year to the end of such month, all in reasonable detail, fairly presenting the
financial position and results of operations of the Parent and its
consolidated Subsidiaries and each of the Guarantors as at the date thereof
and for such periods, and prepared in accordance with GAAP applied
consistently with the audited Financial Statements required to be delivered
pursuant to Section 5.2(a) (Annual Statements and Information). The Parent and
each of the Guarantors shall certify by a certificate signed by its chief
financial officer that all such statements have been prepared in accordance
with GAAP and present fairly the Parent's or Guarantor's financial position as
at the dates thereof and its results of operations for the periods then ended,
subject to normal year-end adjustments.
(d) Accountants Certificate. With each of the audited
Financial Statements delivered pursuant to Section 5.2(a) (Annual Statements
and Information), a certificate of the independent certified public
accountants that examined such statement to the effect that they have reviewed
and are familiar with this Agreement and that, in examining such Financial
Statements, they did not become aware of any fact or condition that then
constituted a Default or Event of Default with respect to a financial
covenant, except for those, if any, described in reasonable detail in such
certificate.
(e) Borrower's or Guarantor's Certificate. With each of the
annual audited Financial Statements delivered pursuant to Section 5.2(a)
(Annual Statements and Information), and within forty five (45) days after the
end of each fiscal quarter, a certificate of the chief financial officer of
the Borrower or Guarantor setting forth in reasonable detail the calculations
required to establish that the Borrower or Guarantor was in compliance with
the
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covenants set forth in Sections 7.22 (Capital Expenditures) through Section
7.26 (Minimum Tangible Net Worth) during the period covered in such Financial
Statements and as at the end thereof, confirming the most recent Borrowing
Base Certificate delivered pursuant to Section 5.2(l) (Borrowing Base
Certificate) and all reserves calculated thereon. Within twenty (20) days
after the end of each month, a certificate of the chief financial officer of
the Parent or Guarantor stating that, except as explained in reasonable detail
in such certificate, (i) all of the representations and warranties of the
Borrower or Guarantor contained in this Agreement and the other Loan Documents
are correct and complete in all material respects as at the date of such
certificate as if made at such time, except for those that speak as of a
particular date, (ii) the Borrower or Guarantor is, at the date of such
certificate, in compliance in all material respects with all of its respective
covenants and agreements in this Agreement and the other Loan Documents, (iii)
no Default or Event of Default then exists or existed during the period
covered by the Financial Statements for such month, (iv) describing and
analyzing in reasonable detail all material trends, changes, and developments
in each and all Financial Statements; (v) explaining the variances of the
figures in the corresponding budgets and prior Fiscal Year financial
statements; and (vi) all accounts payable relating to sub-contractors are not
more than thirty (30) days past due for the period covered and that amounts
not paid according to terms do not exceed, in the aggregate, $500,000, except
for amounts in good faith dispute. If such certificate discloses that a
representation or warranty is not correct or complete, or that a covenant has
not been complied with, or that a Default or Event of Default existed or
exists, such certificate shall set forth what action the Borrower or Guarantor
has taken or proposes to take with respect thereto.
(f) Annual Forecasts. No sooner than sixty (60) days before
the beginning of each Fiscal Year, and no later than January 30 of each year,
annual forecasts (to include forecasted consolidated and consolidating balance
sheets, income statements and cash flow statements) for the Borrower and its
Subsidiaries and each of the Guarantors as at the end of and for each quarter
of such Fiscal Year.
(g) PBGC Filings. Promptly after filing with the PBGC and
the IRS, a copy of each annual report filed with respect to each Plan of the
Borrower or Guarantors.
(h) SEC Filings. Promptly upon the filing thereof, copies of
all reports, if any, to or other documents filed by the Parent, Borrower or
any of its Subsidiaries or any of the Guarantors with the Securities and
Exchange Commission under the Exchange Act, and all reports, notices, or
statements sent or received by the Parent, Borrower or any of its Subsidiaries
or any of the Guarantors to or from the holders of any equity interests of the
Borrower or any of the Guarantors (other than routine non-material
correspondence sent by shareholders of the Borrower or Guarantor to the
Borrower or Guarantor) or any such Subsidiary or of any Debt of the Parent,
Borrower or any of its Subsidiaries or any of the Guarantors registered under
the Securities Act of 1933 or to or from the trustee under any indenture under
which the same is issued.
(i) Management Reports and Management Letters. As soon as
available, but in any event not later than fifteen (15) days after the
Borrower's or Guarantor's receipt thereof, a copy of all management reports
and management letters prepared for the Borrower or Guarantor by any
independent certified public accountants of the Borrower or Guarantor.
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(j) Shareholder Statements and Reports. Promptly after
their preparation, copies of any and all proxy statements, financial
statements, and reports that the Parent makes available to its stockholders.
(k) Tax Returns. Promptly after filing with the IRS,
furnish to the Agent a copy of each federal income tax return filed by the
Borrower or by any of its Subsidiaries or any of the Guarantors.
(l) Borrowing Base Certificate. As soon as available, but in
no event later than five (5) days after the end of each month (for such month)
a Borrowing Base Certificate and supporting information in accordance with
Section 9 of the applicable Security Agreement.
(m) Monthly Project Reports. As soon as available, but in no
event later than thirty (30) days after each month end, a monthly project
status report in form and substance reasonably satisfactory to the Agent.
(n) Contract Backlog Report. As soon as available, but in no
event later than forty five (45) days after each quarter end, a contract
backlog of the Borrower and Guarantors, certified by an authorized
representative of the Borrower and Guarantors.
(o) Subordinate Debt Holder Information. Simultaneously
with its delivery to the Subordinate Lender, a copy of all financial
information delivered to the Subordinate Lender pursuant to Section 7.1(e) of
the Subordinated Debt Loan Documents.
(p) Additional Information. Such additional information as
the Agent and/or any Lender may from time to time reasonably request regarding
the financial and business affairs of the Borrower, any Subsidiary or
unconsolidated joint venture, or any Guarantor.
5.3 Notices to the Lenders.
The Borrower shall, and shall cause each of the Guarantors to, notify
the Agent and the Lenders in writing of the following matters at the following
times:
(a) Immediately after becoming aware of any Default or Event
of Default;
(b) Immediately after becoming aware of the assertion by the
holder of any capital stock of the Borrower, of any Subsidiary, of any
Guarantor or the holder of any Debt of the Borrower, any Subsidiary or any
Guarantor in a face amount in excess of $250,000 per occurrence or $500,000 in
the aggregate that a default exists with respect thereto or that the Borrower,
such Subsidiary or such Guarantor is not in compliance with the terms thereof,
or the threat or commencement by such holder of any enforcement action because
of such asserted default or non-compliance;
(c) Immediately after becoming aware of any event or
circumstance which could have a Material Adverse Effect;
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(d) Immediately after becoming aware of any pending or
threatened action, suit, or proceeding, by any Person, or any pending or
threatened investigation by a Governmental Authority, that could reasonably be
expected to have a Material Adverse Effect;
(e) Immediately after becoming aware of any pending or
threatened strike, work stoppage, unfair labor practice claim, or other labor
dispute affecting the Borrower, any of its Subsidiaries or any Guarantor in a
manner which could reasonably be expected to have a Material Adverse Effect;
(f) Immediately after becoming aware of any violation of any
law, statute, regulation, or ordinance of a Governmental Authority affecting
the Borrower, any Subsidiary or any Guarantor which could reasonably be
expected to have a Material Adverse Effect;
(g) Immediately after receipt of any notice of any violation
by the Borrower, any of its Subsidiaries or any Guarantor of any Environmental
Law that could reasonably be expected to have a Material Adverse Effect or
that any Governmental Authority has asserted in writing that the Borrower, any
Subsidiary or any Guarantor is not in compliance with any Environmental Law or
is investigating the Borrower's, such Subsidiary's or such Guarantor's
compliance therewith;
(h) Immediately after receipt of any written notice that the
Borrower, any of its Subsidiaries or any Guarantor is or may be liable to any
Person as a result of the Release or threatened Release of any Contaminant or
that the Borrower, any Subsidiary or any Guarantor is subject to investigation
by any Governmental Authority evaluating whether any remedial action is needed
to respond to the Release or threatened Release of any Contaminant, which, in
either case, is reasonably likely to give rise to liability in excess of
$250,000, when considered alone or when aggregated with other similar claims
or actions;
(i) Immediately after receipt of any written notice of the
imposition of any Environmental Lien against any property of the Borrower, any
of its Subsidiaries or any of the Guarantors;
(j) Any change in the Borrower's or any Guarantor's name,
state of organization, form of organization, trade names under which any of
them will create Accounts, or to which instruments in payment of Accounts may
be made payable or the location of Borrower's headquarters and books and
records, in each case at least thirty (30) days prior thereto;
(k) Any change in the Borrower's or any Guarantor's
locations of Collateral not covered by (j) immediately above promptly after
such change;
(l) Within ten (10) Business Days after the Borrower, any
Guarantor or any Subsidiary of either of them knows or has reason to know,
that an ERISA Event or a prohibited transaction (as defined in Sections 406 of
ERISA and 4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect has occurred, and, when known, any action taken or
threatened by the IRS, the DOL or the PBGC with respect thereto;
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(m) Upon request, or, in the event that such filing reflects
a significant change with respect to the matters covered thereby that could
reasonably be expected to have a Material Adverse Effect, within three (3)
Business Days after the filing thereof with the PBGC, the DOL or the IRS, as
applicable, copies of the following: (i) each annual report (Form 5500
series), including Schedule B, if any, thereto, filed with the PBGC, the DOL
or the IRS with respect to each Plan, (ii) a copy of each funding waiver
request filed with the PBGC, the DOL or the IRS with respect to any Plan and
all communications received by the Borrower, any Guarantor or any Subsidiary
of either of them from the PBGC, the DOL or the IRS with respect to such
request, and (iii) a copy of each other filing or notice filed with the PBGC,
the DOL or the IRS, with respect to each Plan by either the Borrower, any
Guarantor or any Subsidiary;
(n) Upon request, copies of each actuarial report for any
Plan or Multi-employer Plan and annual report for any Multi-employer Plan; and
within three (3) Business Days after receipt thereof by the Borrower, any
Guarantor or any Subsidiary, copies of the following: (i) any notices of the
PBGC's intention to terminate a Plan or to have a trustee appointed to
administer such Plan; (ii) any favorable or unfavorable determination letter
from the IRS regarding the qualification of a Plan under Section 401(a) of the
Code; or (iii) any notice from a Multi-employer Plan regarding the imposition
of withdrawal liability;
(o) Within three (3) Business Days after the occurrence
thereof: (i) any changes in the benefits of any existing Plan which increase
the Borrower's or Guarantor's annual costs with respect thereto by an amount
in excess of $100,000, or the establishment of any new Plan or the
commencement of contributions to any Plan to which the Borrower, Guarantor or
any Subsidiary was not previously contributing; or (ii) any failure by the
Borrower, Guarantor or any Subsidiary to make a required installment or any
other required payment under Section 412 of the Code on or before the due date
for such installment or payment; or
(p) Within three (3) Business Days after the Borrower,
Guarantor or any Subsidiary knows or has reason to know that any of the
following events has or will occur: (i) a Multi-employer Plan has been or will
be terminated; (ii) the administrator or plan sponsor of a Multi-employer Plan
intends to terminate a Multi-employer Plan; or (iii) the PBGC has instituted
or will institute proceedings under Section 4042 of ERISA to terminate a
Multi-employer Plan.
Each notice given under this Section 5.3 (Notices to the Lenders)
shall describe the subject matter thereof in reasonable detail, and shall set
forth the action that the Borrower, Subsidiary or any Guarantor, as
applicable, has taken or proposes to take with respect thereto.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
The Borrower warrants and represents to the Agent and the Lenders that
except as hereafter disclosed to and accepted by the Agent and the Required
Lenders in writing:
6.1 Authorization, Validity, and Enforceability of this Agreement
and the Loan Documents.
The Borrower has the power and authority to execute, deliver and
perform this
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Agreement and the other Loan Documents to which it is a party, to incur the
Obligations, and to grant to the Agent Liens upon and security interests in
the Collateral. The Borrower has taken all necessary action (including
obtaining approval of its stockholders if necessary) to authorize its
execution, delivery, and performance of this Agreement and the other Loan
Documents to which it is a party. This Agreement and the other Loan Documents
to which it is a party have been duly executed and delivered by the Borrower,
and constitute the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with their respective terms. The
Borrower's execution, delivery, and performance of this Agreement and the
other Loan Documents to which it is a party do not and will not conflict with,
or constitute a violation or breach of, or result in the imposition of any
Lien upon the property of the Borrower or any of its Subsidiaries, by reason
of the terms of (a) any contract, mortgage, lease, agreement, indenture, or
instrument to which the Borrower is a party or which is binding upon it, (b)
any Requirement of Law applicable to the Borrower or any of its Subsidiaries,
or (c) the articles of incorporation or by-laws of the Borrower or any of its
Subsidiaries.
6.2 Validity and Priority of Security Interest.
The provisions of this Agreement, the Mortgage, and the other Loan
Documents create legal and valid Liens on all the Collateral in favor of the
Agent, for the ratable benefit of the Agent and the Lenders, and such Liens
constitute perfected and continuing Liens on all the Collateral, having
priority over all other Liens on the Collateral, except for those Liens
identified in clauses (c), (d) and (e) of the definition of Permitted Liens
securing all the Obligations, and enforceable against the Borrower and all
third parties.
6.3 Organization and Qualification.
The Borrower (a) is duly incorporated and validly existing in good
standing under the laws of the state of its incorporation, (b) is qualified to
do business and is in good standing in the jurisdictions set forth on Schedule
6.3 which are the only jurisdictions in which qualification is necessary in
order for it to own or lease its property and conduct its business and (c) has
all requisite power and authority to conduct its business and to own its
property.
6.4 Corporate Name; Prior Transactions.
The Borrower has not, during the past five (5) years, been known by or
used any other corporate or fictitious name, or been a party to any merger or
consolidation (except for the merger as of even date herewith with Weston
Acquisition Corporation), or acquired all or substantially all of the assets
of any Person, or acquired any of its property outside of the ordinary course
of business.
6.5 Subsidiaries and Affiliates.
Schedule 6.5 is a correct and complete list of the name and
relationship to the Borrower of each and all of the Borrower's Subsidiaries
and other Affiliates. Each Subsidiary is (a) duly incorporated or organized
and validly existing in good standing under the laws of its state of
incorporation or organization set forth on Schedule 6.5, and (b) qualified to
do business and in good standing in each jurisdiction in which the failure to
so qualify or be in good standing could reasonably be expected to have a
material adverse effect on any such Subsidiary's
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business, operations, prospects, property, or condition (financial or
otherwise) and (c) has all requisite power and authority to conduct its
business and own its property.
6.6 Financial Statements and Projections.
(a) The Borrower has delivered to the Agent and the Lenders
the audited balance sheet and related statements of income, retained earnings,
cash flows, and changes in stockholders equity for the Borrower and its
consolidated Subsidiaries as of December 31, 2000, and for the Fiscal Year
then ended, accompanied by the report thereon of the Borrower's independent
certified public accountants, PriceWaterhouseCoopers. The Borrower has also
delivered to the Agent and the Lenders the unaudited balance sheet and related
statements of income and cash flows for the Borrower and its consolidated
Subsidiaries as of March 31, 2001. Such financial statements are attached
hereto as Exhibit C. All such financial statements have been prepared in
accordance with GAAP and present accurately and fairly in all material
respects the financial position of the Borrower and its consolidated
Subsidiaries as at the dates thereof and their results of operations for the
periods then ended.
(b) The Latest Projections when submitted to the Lenders as
required herein represent the Borrower's reasonable estimate of the future
financial performance of the Borrower and its consolidated Subsidiaries for
the periods set forth therein. The Latest Projections have been prepared on
the basis of the assumptions set forth therein, which the Borrower believes
are fair and reasonable in light of current and reasonably foreseeable
business conditions at the time submitted to the Lenders.
(c) The pro forma balance sheet of the Borrower as of the
Closing Date, attached hereto as Exhibit C, presents fairly and accurately the
Borrower's financial condition as at such date after consummation of the
transactions contemplated by the Merger Agreement and the ACS Commitment and
has been prepared consistent with GAAP principles.
6.7 Capitalization.
The Borrower's authorized capital stock consists of 10,500,000 shares
of common stock and 20,500,000 shares of Series A common, each with par value
$.10 per share, of which ten (10) shares are validly issued and outstanding,
fully paid and non-assessable and are owned beneficially and of record by
Parent.
6.8 Solvency.
The Borrower is Solvent prior to and after giving effect to the
Borrowings to be made on the Closing Date, the issuance of the Letters of
Credit to be issued on the Closing Date and the consummation of the
transactions contemplated by the Merger Agreement and the ACS Commitment, and
shall remain Solvent during the term of this Agreement.
6.9 Debt.
After giving effect to the making of the Term Loans and the Revolving
Loans to be made on the Closing Date, the Borrower and its Subsidiaries have
no Debt, except (a) the Obligations, and (b) Debt described on Schedule 6.9.
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6.10 Distributions.
Except as disclosed on Schedule 6.10, Since December 31, 2000, no
Distribution has been declared, paid, or made upon or in respect of any
capital stock or other securities of the Borrower or any of its Subsidiaries.
6.11 Real Estate; Leases.
Schedule 6.11 sets forth, as of the Closing Date, a correct and
complete list of all Real Estate owned by the Borrower and all Real Estate
owned by any of its Subsidiaries, all leases and subleases of real or personal
property held by the Borrower as lessee or sublessee (other than leases of
personal property as to which the Borrower is lessee or sublessee for which
the value of such personal property in the aggregate is less than $200,000 or
leases of real property for which the rental rate is less than $100,000 per
annum), and all leases and subleases of real or personal property held by the
Borrower as lessor, or sublessor. Each of such leases and subleases is valid
and enforceable in accordance with its terms and is in full force and effect,
and no default by any party to any such lease or sublease exists. The Borrower
has good and marketable title in fee simple to the Real Estate identified on
Schedule 6.11 as owned by the Borrower, or valid leasehold interests in all
Real Estate designated therein as "leased" by the Borrower and the Borrower
has good, indefeasible, and merchantable title to all of its other property
reflected on the December 31, 2000 Financial Statements delivered to the Agent
and the Lenders, except as disposed of in the ordinary course of business
since the date thereof, free of all Liens except Permitted Liens.
6.12 Proprietary Rights.
Schedule 6.12 sets forth a correct and complete list of all of the
Borrower's Proprietary Rights that are material to the operation of the
Borrower. None of such Proprietary Rights is subject to any licensing
agreement or similar arrangement except as set forth on Schedule 6.12. To the
best of the Borrower's knowledge, none of the Proprietary Rights infringes on
or conflicts with any other Person's property, and no other Person's property
infringes on or conflicts with such Proprietary Rights. The Proprietary Rights
described on Schedule 6.12 constitute all of the property of such type of a
material nature necessary to the current and anticipated future conduct of the
Borrower's business.
6.13 Trade Names.
All trade names or styles under which the Borrower or any of its
Subsidiaries will create Accounts, or to which instruments in payment of
Accounts may be made payable, are listed on Schedule 6.13.
6.14 Litigation.
Except as set forth on Schedule 6.14, there is no pending, or to the
best of the Borrower's knowledge threatened, action, suit, proceeding, or
counterclaim by any Person, or to the best of the Borrower's knowledge,
investigation by any Governmental Authority, or any basis for any of the
foregoing, that could reasonably be expected to have a Material Adverse
Effect.
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6.15 Labor Disputes.
Except as set forth on Schedule 6.15, as of the Closing Date (a) there
is no collective bargaining agreement or other labor contract covering
employees of the Borrower or any of its Subsidiaries, (b) no such collective
bargaining agreement or other labor contract is scheduled to expire during the
term of this Agreement, (c) no union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of employees of
the Borrower or any of its Subsidiaries or for any similar purpose, and (d)
there is no pending or (to the best of the Borrower's knowledge) threatened,
strike, work stoppage, material unfair labor practice claim, or other material
labor dispute against or affecting the Borrower or its Subsidiaries or their
employees.
6.16 Environmental Laws.
Except as otherwise disclosed on Schedule 6.16:
(a) The Borrower and its Subsidiaries have complied in all
material respects with all Environmental Laws and neither the Borrower nor any
Subsidiary nor any of its presently owned real property or presently conducted
operations, nor its previously owned real property or prior operations, is
subject to any enforcement order from or liability agreement with any
Governmental Authority or private Person respecting (i) compliance with any
Environmental Law or (ii) any potential liabilities and costs or remedial
action arising from the Release or threatened Release of a Contaminant.
(b) The Borrower and its Subsidiaries have obtained all
permits necessary for their current operations under Environmental Laws, and
all such permits are in good standing and the Borrower and its Subsidiaries
are in full compliance with all such permits.
(c) Neither the Borrower nor any of its Subsidiaries, nor,
to the best of the Borrower's knowledge, any of its predecessors in interest,
has in violation of applicable law stored, treated or disposed of any
hazardous waste.
(d) Neither the Borrower nor any of its Subsidiaries has
received any summons, complaint, order or similar written notice indicating
that it is not currently in compliance with, or that any Governmental
Authority is investigating its compliance with, any Environmental Laws or that
it is or may be liable to any other Person as a result of a Release or
threatened Release of a Contaminant.
(e) None of the present or past operations of the Borrower
and its Subsidiaries is the subject of any investigation by any Governmental
Authority evaluating whether any remedial action is needed to respond to a
Release or threatened Release of a Contaminant.
(f) There is not now, nor has there ever been on or in the
Real Estate:
(i) any underground storage tanks or surface
impoundments,
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(ii) any asbestos-containing material, or
(iii) any polychlorinated biphenyls (PCBs) used in
hydraulic oils, electrical transformers or other equipment.
(g) Neither the Borrower nor any of its Subsidiaries has
filed any notice under any requirement of Environmental Law reporting a spill
or accidental and unpermitted Release or discharge of a Contaminant into the
environment on any property owned by any of them or for which any of them have
liability as a result of their actions of their employees.
(h) Neither the Borrower nor any of its Subsidiaries has
entered into any negotiations or settlement agreements with any Person
(including the prior owner of its property) imposing material obligations or
liabilities on the Borrower or any of its Subsidiaries with respect to any
remedial action in response to the Release of a Contaminant or environmentally
related claim.
(i) None of the products manufactured, distributed or sold
by the Borrower or any of its Subsidiaries contain asbestos containing
material.
(j) No Environmental Lien has previously or is currently
attached to the Real Estate.
6.17 No Violation of Law.
Neither the Borrower nor any of its Subsidiaries is in violation of
any law, statute, regulation, ordinance, judgment, order, or decree applicable
to it, which violation could reasonably be expected to have a Material Adverse
Effect.
6.18 No Default.
Neither the Borrower nor any of its Subsidiaries is in default with
respect to any note, indenture, loan agreement, mortgage, lease, deed, or
other agreement to which the Borrower or such Subsidiary is a party or by
which it is bound, which default could reasonably be expected to have a
Material Adverse Effect.
6.19 ERISA Compliance.
Except as specifically disclosed in Schedule 6.19:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or application therefor
will be made promptly and to the best knowledge of the Borrower, nothing has
occurred that would cause the loss of such qualification. The Borrower and
each Subsidiary has made all required contributions to any Plan subject to
Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
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(b) There are no pending or, to the best knowledge of
Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been
no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrower nor any Subsidiary has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any Subsidiary has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multi-employer Plan; and (v) neither the Borrower nor any Subsidiary has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
6.20 Taxes.
Except as disclosed on Schedule 6.20, the Borrower and its
Subsidiaries have filed all federal and other tax returns and reports required
to be filed, and have paid all federal and other taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable unless such unpaid taxes and
assessments would constitute a Permitted Lien.
6.21 Regulated Entities.
None of the Borrower, any Subsidiary, or any Person controlling the
Borrower, other than ACAS, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Borrower is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act, any state public utilities code or law, or any
other federal or state statute or regulation limiting its ability to incur
indebtedness.
6.22 Use of Proceeds; Margin Regulations.
The proceeds of the Loans are to be used solely for working capital
purposes. Neither the Borrower nor any Subsidiary is engaged in the business
of purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.23 Copyrights, Patents, Trademarks and Licenses, etc.
The Borrower owns or is licensed or otherwise has the right to use all
of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, licenses, rights of way, authorizations and other
rights that are reasonably necessary for the operation of its businesses,
without conflict with the rights of any other Person. There are no Liens,
other than Permitted Liens, on any patent, trademark, service marks, trade
name or copyrights owned
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by the Borrower. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the Borrower or
any Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Borrower,
proposed, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
6.24 No Material Adverse Change.
No Material Adverse Effect has occurred since the latest date of the
Financial Statements delivered to the Lenders.
6.25 Full Disclosure.
None of the representations or warranties made by the Borrower or any
Subsidiary in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in
any exhibit, report, statement or certificate furnished by or on behalf of the
Borrower or any Subsidiary in connection with the Loan Documents (including
the offering and disclosure materials delivered by or on behalf of the
Borrower to the Lenders prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when
made or delivered.
6.26 Material Agreements.
Schedule 6.25 hereto sets forth as of the Closing Date all material
agreements and contracts to which the Borrower or any of its Subsidiaries is a
party or is bound as of the date hereof.
6.27 Bank Accounts.
Schedule 6.27 contains as of the Closing Date a complete and accurate
list of all bank accounts maintained by the Borrower with any bank or other
financial institution.
6.28 Governmental Authorization.
Except As required pursuant to 31 U.S.C. Section 3727 and 41 U.S.C.
Section 15, no approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority or other Person
is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Borrower or any of its
Subsidiaries of this Agreement or any other Loan Document.
6.29 No Suspension or Debarment.
Neither the Borrower nor any Affiliate nor any of their respective
directors, officers or employees has received any notice of, or information
concerning, any proposed,
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contemplated or initiated suspension or debarment, be it temporary or
permanent, due to an administrative or a statutory basis, of the Borrower or
any Affiliate by any Governmental Authority. The Borrower and each Affiliate
further warrants and represents that neither the Borrower nor any Affiliate
has defaulted under any Government Contract which default would be a basis of
terminating such Government Contract.
ARTICLE 7
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants to the Agent and each Lender that so long as any of
the Obligations remain outstanding or this Agreement is in effect:
7.1 Taxes and Other Obligations.
The Borrower shall, and shall cause each of its Subsidiaries to, (a)
file when due all tax returns and other reports which it is required to file;
(b) pay, or provide for the payment, when due, of all taxes, fees, assessments
and other governmental charges against it or upon its property, income and
franchises, make all required withholding and other tax deposits, and
establish adequate reserves for the payment of all such items, and provide to
the Agent and the Lenders, upon request, satisfactory evidence of its timely
compliance with the foregoing; and (c) pay when due all Debt owed by it and
all claims of materialmen, mechanics, carriers, warehousemen, landlords,
processors and other like Persons, and all other indebtedness owed by it and
perform and discharge in a timely manner all other obligations undertaken by
it; provided, however, so long as the Borrower has notified the Agent in
writing, neither the Borrower nor any of its Subsidiaries need pay any tax,
fee, assessment, or governmental charge (i) it is contesting in good faith by
appropriate proceedings diligently pursued, (ii) as to which the Borrower or
its Subsidiary, as the case may be, has established proper reserves as
required under GAAP, and (iii) the nonpayment of which does not result in the
imposition of a Lien (other than a Permitted Lien).
7.2 Legal Existence and Good Standing.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain its legal existence and its qualification and good standing in all
jurisdictions in which the failure to maintain such existence and
qualification or good standing could reasonably be expected to have a Material
Adverse Effect.
7.3 Compliance with Law and Agreements; Maintenance of Licenses.
The Borrower shall comply, and shall cause each Subsidiary to comply,
in all material respects with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including the Federal
Fair Labor Standards Act and all Environmental Laws). The Borrower shall, and
shall cause each of its Subsidiaries to, obtain and maintain all licenses,
permits, franchises, and governmental authorizations necessary to own its
property and to conduct its business as conducted on the Closing Date. The
Borrower shall not modify, amend or alter its certificate or articles of
incorporation, or its limited liability company operating agreement or limited
partnership agreement, as applicable, other than in a manner that does not
adversely affect the rights of the Lenders or the Agent.
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7.4 Maintenance of Property; Inspection of Property.
(a) The Borrower shall, and shall cause each of its
Subsidiaries to, maintain all of its property necessary and useful in the
conduct of its business, in good operating condition and repair, ordinary wear
and tear excepted; provided, however, nothing herein shall prohibit the
Borrower and its Subsidiaries from undertaking the clean up of so-called
Brownfields sites provided, further however, that neither the Borrower nor any
of its Subsidiaries shall take title to such sites, either directly or
indirectly, without the consent of the Required Lenders.
(b) The Borrower shall permit representatives and
independent contractors of the Agent (at the expense of the Borrower) to visit
and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom and to
discuss its affairs, finances and accounts with its directors, officers and
independent public accountants, at such reasonable times during normal
business hours and as soon as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, when an Event of Default
exists, the Agent or any Lender may do any of the foregoing at the expense of
the Borrower at any time during normal business hours and without advance
notice. The Agent estimates, absent an Event of Default, that it will conduct
four (4) field exams per year.
7.5 Insurance.
(a) The Borrower shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable insurers having
a rating of at least A+ or better by Best Rating Guide, insurance against loss
or damage by fire with extended coverage; theft, burglary, pilferage and loss
in transit; public liability and third party property damage; larceny,
embezzlement or other criminal liability; business interruption; public
liability and third party property damage; and such other hazards or of such
other types as is customary for Persons engaged in the same or similar
business, as the Agent, in its discretion, or acting at the direction of the
Required Lenders, shall specify, in amounts, and under policies acceptable to
the Agent and the Required Lenders. Without limiting the foregoing, in the
event that any improved Real Estate covered by the Mortgages is determined to
be located within an area that has been identified by the Director of the
Federal Emergency Management Agency as a Special Flood Hazard Area ("SFHA"),
the Borrower shall purchase and maintain flood insurance on the improved Real
Estate and any Equipment located on such Real Estate. The amount of said flood
insurance will be reasonably determined by the Agent, and shall, at a minimum,
comply with applicable federal regulations as required by the Flood Disaster
Protection Act of 1973, as amended. The Borrower shall also maintain flood
insurance for its Equipment which is, at any time, located in a SFHA.
(b) The Borrower shall cause the Agent, for the ratable
benefit of the Agent and the Lenders, to be named as secured party or
mortgagee and sole loss payee or as an additional insured, in a manner
acceptable to the Agent. Each policy of insurance shall contain a clause or
endorsement requiring the insurer to give not less than thirty (30) days'
prior written notice to the Agent in the event of cancellation of the policy
for any reason whatsoever and a clause or endorsement stating that the
interest of the Agent shall not be impaired or invalidated
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by any act or neglect of the Borrower or any of its Subsidiaries or the owner
of any Real Estate for purposes more hazardous than are permitted by such
policy. All premiums for such insurance shall be paid by the Borrower when
due, and certificates of insurance and, if requested by the Agent or any
Lender, photocopies of the policies, shall be delivered to the Agent, in each
case in sufficient quantity for distribution by the Agent to each of the
Lenders. If the Borrower fails to procure such insurance or to pay the
premiums therefor when due, the Agent may, and at the direction of the
Required Lenders shall, do so from the proceeds of Revolving Loans.
Notwithstanding any provision contained herein to the contrary, ACAS shall be
the sole beneficiary of any key man insurance purchased as of the date hereof
with respect to the Borrower and its Subsidiaries.
7.6 Insurance and Condemnation Proceeds.
The Borrower shall promptly notify the Agent and the Lenders of any
loss, damage, or destruction to the Collateral, whether or not covered by
insurance. The Agent is hereby authorized to collect all insurance and
condemnation proceeds in respect of Collateral directly and to apply or remit
them as follows:
(a) With respect to insurance and condemnation proceeds
relating to Collateral other than Fixed Assets, after deducting from such
proceeds the reasonable out of pocket expenses, if any, incurred by the Agent
in the collection or handling thereof, the Agent shall apply such proceeds,
ratably, to the reduction of the Obligations in the order provided for in
Section 3.8 (Apportionment, Application and Reversal of Payments).
(b) With respect to insurance and condemnation proceeds
relating to Collateral consisting of Fixed Assets, the Agent shall permit or
require the Borrower to use such proceeds, or any part thereof, to replace,
repair, restore or rebuild the relevant Fixed Assets in a diligent and
expeditious manner with materials and workmanship of substantially the same
quality as existed before the loss, damage or destruction so long as (i) no
Default or Event of Default has occurred, (ii) the aggregate proceeds do not
exceed $500,000 and (iii) the Borrower first (A) provides the Agent and the
Required Lenders with plans and specifications for any such repair or
restoration which shall be reasonably satisfactory to the Agent and the
Required Lenders and (B) demonstrates to the reasonable satisfaction of the
Agent and the Required Lenders that the funds available to it will be
sufficient to complete such project in the manner provided therein. In all
other circumstances, the Agent shall apply such insurance and condemnation
proceeds, ratably, to the reduction of the Obligations in the order provided
for in Section 3.4(b) (Prepayments of the Term Loans).
7.7 Environmental Laws.
(a) The Borrower shall, and shall cause each of its
Subsidiaries to, conduct its business in compliance with all Environmental
Laws applicable to it, including those relating to the generation, handling,
use, storage, and disposal of any Contaminant. The Borrower shall, and shall
cause each of its Subsidiaries to, take prompt and appropriate action to
respond to any non-compliance with Environmental Laws and shall regularly
report to the Agent on such response.
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(b) Without limiting the generality of the foregoing, the
Borrower shall submit to the Agent and the Lenders annually, commencing on the
first Anniversary Date, and on each Anniversary Date thereafter, an update of
the status of each environmental compliance or liability issue. The Agent or
any Lender may request copies of technical reports prepared by the Borrower
and its communications with any Governmental Authority to determine whether
the Borrower or any of its Subsidiaries is proceeding reasonably to correct,
cure or contest in good faith any alleged non-compliance or environmental
liability. The Borrower shall, at the Agent's or the Required Lenders' request
and at the Borrower's expense, (i) retain an independent environmental
engineer acceptable to the Agent to evaluate the site, including tests if
appropriate, where the non-compliance or alleged non-compliance with
Environmental Laws has occurred and prepare and deliver to the Agent, in
sufficient quantity for distribution by the Agent to the Lenders, a report
setting forth the results of such evaluation, a proposed plan for responding
to any environmental problems described therein, and an estimate of the costs
thereof, and (ii) provide to the Agent and the Lenders a supplemental report
of such engineer whenever the scope of the environmental problems, or the
response thereto or the estimated costs thereof, shall increase in any
material respect.
(c) The Agent and its representatives will have the right at
any reasonable time to enter and visit the Real Estate and any other place
where any property of the Borrower is located for the purposes of observing
the Real Estate, taking and removing soil or groundwater samples, and
conducting tests on any part of the Real Estate. The Agent is under no duty,
however, to visit or observe the Real Estate or to conduct tests, and any such
acts by the Agent will be solely for the purposes of protecting the Agent's
Liens and preserving the Agent and the Lenders' rights under the Loan
Documents. No site visit, observation or testing by the Agent and the Lenders
will result in a waiver of any default of the Borrower or impose any liability
on the Agent or the Lenders. In no event will any site visit, observation or
testing by the Agent be a representation that hazardous substances are or are
not present in, on or under the Real Estate, or that there has been or will be
compliance with any Environmental Law. Neither the Borrower nor any other
party is entitled to rely on any site visit, observation or testing by the
Agent. The Agent and the Lenders owe no duty of care to protect the Borrower
or any other party against, or to inform the Borrower or any other party of,
any hazardous substances or any other adverse condition affecting the Real
Estate. The Agent may in its discretion disclose to the Borrower or to any
other party if so required by law any report or findings made as a result of,
or in connection with, any site visit, observation or testing by the Agent.
The Borrower understands and agrees that the Agent makes no warranty or
representation to the Borrower or any other party regarding the truth,
accuracy or completeness of any such report or findings that may be disclosed.
The Borrower also understands that depending on the results of any site visit,
observation or testing by the Agent and disclosed to the Borrower, the
Borrower may have a legal obligation to notify one or more environmental
agencies of the results, that such reporting requirements are site-specific
and are to be evaluated by the Borrower without advice or assistance from the
Agent. In each instance, the Agent will give the Borrower reasonable notice
before entering the Real Estate or any other place the Agent is permitted to
enter under this Section 7.7(c). The Agent will make reasonable efforts to
avoid interfering with the Borrower's use of the Real Estate or any other
property in exercising any rights provided hereunder.
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7.8 Compliance with ERISA.
The Borrower shall, and shall cause each of its Subsidiaries to: (a)
maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; (b) make all
required contributions to any Plan subject to Section 412 of the Code or to
any Multi-employer Plan (unless a good faith dispute exists as to the amount
of such contribution and Borrower diligently pursues resolution of such
dispute, establishes necessary and appropriate reserves and promptly pays such
contributions as are determined to be due upon resolution of the dispute); (c)
not engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which results in liability that
could reasonably be expected to have a Material Adverse Effect; and (d) not
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
7.9 Mergers, Consolidations or Sales.
Neither the Borrower nor any of its Subsidiaries shall enter into any
transaction of merger, reorganization, or consolidation, or transfer, sell,
assign, lease, or otherwise dispose of all or any part of its property, or
wind up, liquidate or dissolve, or agree to do any of the foregoing, except
for sales or other dispositions of Equipment in the ordinary course of
business that are obsolete or no longer useable by Borrower in its business
with an orderly liquidation value not to exceed $250,000 in any Fiscal Year.
The Borrower shall either (a) reinvest the proceeds of that sale or
disposition in other Equipment or (b) apply such proceeds to the Loans in
accordance with Section 3.4 (Prepayments of the Term Loans). All Equipment
purchased with such proceeds shall be free and clear of all Liens, except the
Agent's Liens.
7.10 Distributions; Capital Change; Restricted Investments.
Neither the Borrower nor any of its Subsidiaries shall (a) directly or
indirectly declare or make, or incur any liability to make, any Distribution,
except Distributions to the Borrower by its Subsidiaries permitted under the
Subordination Agreement, (b) make any change in its capital structure which
could have a Material Adverse Effect or (c) make any Restricted Investment;
provided, however, the Borrower may, provided there is no Event of Default
hereunder, make (y) cash payments required under its employee stock option
plan in an aggregate amount not to exceed $1,000,000 or (z) issue notes as
required by the employee stock option plan.
7.11 Transactions Affecting Collateral or Obligations.
Neither the Borrower nor any of its Subsidiaries shall enter into any
transaction that would be reasonably expected to have a Material Adverse
Effect.
7.12 Guaranties.
Except as provided on Schedule 7.12, neither the Borrower nor any of
its Subsidiaries shall make, issue, or become liable on any Guaranty, except
the Subsidiary Guaranty.
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7.13 Debt.
Neither the Borrower nor any of its Subsidiaries shall incur or
maintain any Debt, other than: (a) the Obligations; (b) Debt described on
Schedule 6.9; (c) Capital Leases of Equipment and purchase money secured Debt
incurred to purchase Equipment provided that (i) Liens securing the same
attach only to the Equipment acquired by the incurring of such Debt, and (ii)
the aggregate amount of such Debt (including Capital Leases) outstanding does
not exceed $7,000,000 at any time; and (d) Debt evidencing a refunding,
renewal or extension of the Debt described on Schedule 6.9; provided that (i)
the principal amount thereof is not increased, (ii) the Liens, if any,
securing such refunded, renewed or extended Debt do not attach to any assets
in addition to those assets, if any, securing the Debt to be refunded, renewed
or extended, (iii) no Person that is not an obligor or guarantor of such Debt
as of the Closing Date shall become an obligor or guarantor thereof, and (iv)
the terms of such refunding, renewal or extension are no less favorable to the
Borrower, the Agent or the Lenders than the original Debt.
7.14 Prepayment.
Neither the Borrower nor any of its Subsidiaries shall voluntarily
prepay any Debt, except the Obligations in accordance with the terms of this
Agreement.
7.15 Transactions with Affiliates.
Except as set forth in Section 7.10 and set forth below, neither the
Borrower nor any of its Subsidiaries shall, sell, transfer, distribute, or pay
any money or property, including, but not limited to, any fees or expenses of
any nature (including, but not limited to, any fees or expenses for management
services), to any Affiliate, or lend or advance money or property to any
Affiliate, or invest in (by capital contribution or otherwise) or purchase or
repurchase any stock or indebtedness, or any property, of any Affiliate, or
become liable on any Guaranty of the indebtedness, dividends, or other
obligations of any Affiliate. Notwithstanding the foregoing, while no Event of
Default has occurred, the Borrower and its Subsidiaries may engage in
transactions with Affiliates in the ordinary course of business consistent
with past practices, in amounts and upon terms fully disclosed to the Agent
and the Lenders, and no less favorable to the Borrower and its Subsidiaries
than would be obtained in a comparable arm's-length transaction with a third
party who is not an Affiliate.
7.16 Investment Banking and Finder's Fees.
Except for investment banking fees payable as of the Closing Date and
shown on Schedule 7.16, neither the Borrower nor any of its Subsidiaries shall
pay or agree to pay, or reimburse any other party with respect to, any
investment banking or similar or related fee, underwriter's fee, finder's fee,
or broker's fee to any Person in connection with this Agreement. The Borrower
shall defend and indemnify the Agent and the Lenders against and hold them
harmless from all claims of any Person that the Borrower is obligated to pay
for any such fees, and all costs and expenses (including attorneys' fees)
incurred by the Agent and/or any Lender in connection therewith.
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7.17 Business Conducted.
The Borrower shall not and shall not permit any of its Subsidiaries
to, engage directly or indirectly, in any line of business other than the
businesses in which the Borrower is engaged on the Closing Date.
7.18 Liens.
Neither the Borrower nor any of its Subsidiaries shall create, incur,
assume, or permit to exist any Lien on any property now owned or hereafter
acquired by any of them, except Permitted Liens, and Liens, if any, in effect
as of the Closing Date described in Schedule 6.9 securing Debt described in
Schedule 6.9 and Liens securing Capital Leases and purchase money Debt
permitted in Section 7.13 (Debt).
7.19 Sale and Leaseback Transactions.
Neither the Borrower nor any of its Subsidiaries shall, directly or
indirectly, enter into any arrangement with any Person providing for the
Borrower or such Subsidiary to lease or rent property that the Borrower or
such Subsidiary has sold or will sell or otherwise transfer to such Person.
7.20 New Subsidiaries or Joint Ventures.
The Borrower shall not, directly or indirectly, organize, create,
acquire or permit to exist any Subsidiary or Joint Venture other than those
listed on Schedule 6.5; provided, however, the Borrower may create or acquire
a new Subsidiary on the condition that such Subsidiary executes an Additional
Guarantor Joinder Supplement pursuant to the terms of the Security Agreement
at the time that it becomes a Subsidiary.
7.21 Fiscal Year.
The Borrower shall not change its Fiscal Year.
7.22 Capital Expenditures.
Neither the Borrower nor any of its Subsidiaries shall make or incur
any Capital Expenditure if, after giving effect thereto, the aggregate amount
of all cash expenditures for all Capital Expenditures by the Borrower and its
Subsidiaries on a consolidated basis would exceed $3,500,000 during any Fiscal
Year. Notwithstanding the foregoing, during Fiscal Year 2001 only, the
Borrower is permitted to make additional capital expenditures in an aggregate
amount not to exceed $800,000 for the acquisition of equipment to support
three (3) EPA START Contracts.
7.23 Fixed Charge Coverage Ratio.
The Borrower will maintain a Fixed Charge Coverage Ratio on the last
day of each fiscal quarter for the four (4) preceding fiscal quarters not less
than 1.2 to 1.0; provided, however prior to June 30, 2002 this covenant shall
be calculated as follows: for the fiscal quarter
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ending September 30, 2001, this covenant shall be calculated using the fiscal
quarter then ending, annualized for four (4) quarters; for the fiscal quarter
ending December 31, 2001, this covenant shall be calculated using the fiscal
quarters ending on September 30, 2001 and December 31, 2001, annualized for
four (4) quarters, for the fiscal quarter ending March 31, 2002, this covenant
shall be calculated using the fiscal quarters ending on September 30, 2001,
December 31, 2001 and March 31, 2002 annualized for four (4) quarters.
7.24 Funded Debt to EBITDA Ratio.
On a consolidated basis, the Borrower shall maintain a Funded Debt to
EBITDA Ratio on the last day of each fiscal quarter for the four (4) preceding
fiscal quarters not less than the amount set forth below for each such period;
provided, however prior to June 30, 2002 this covenant shall be calculated as
follows: for the fiscal quarter ending September 30, 2001, this covenant shall
be calculated using EBITDA for the fiscal quarter then ending, annualized for
four (4) quarters; for the fiscal quarter ending December 31, 2001, this
covenant shall be calculated using EBITDA for the fiscal quarters ending on
September 30, 2001 and December 31, 2001, annualized for four (4) quarters,
for the fiscal quarter ending March 31, 2002, this covenant shall be
calculated using EBITDA for the fiscal quarters ending on September 30, 2001,
December 31, 2001 and March 31, 2002 annualized for four (4) quarters:
------------------------------------------------------------ -----------------------------------------
Period Ratio
------------------------------------------------------------ -----------------------------------------
September 30, 2001 5.0 to 1.0
------------------------------------------------------------ -----------------------------------------
December 31, 2001, March 31, 2002,
June 30, 2002 and September 30, 2002 4.25 to 1.0
------------------------------------------------------------ -----------------------------------------
December 31, 2002, March 31, 2003,
June 30, 2003 and, September 30, 2003 3.75 to 1.0
------------------------------------------------------------ -----------------------------------------
December 31, 2003 and each fiscal
quarter ending thereafter 3.5 to 1.0
------------------------------------------------------------ -----------------------------------------
7.25 Senior Debt to EBITDA Ratio.
On a consolidated basis, the Borrower shall maintain a Senior Debt to
EBITDA Ratio on the last day of each fiscal quarter for the four (4) preceding
fiscal quarters not less than the amount set forth below for each such period;
provided, however prior to June 30, 2002 this covenant shall be calculated as
follows: for the fiscal quarter ending September 30, 2001, this covenant shall
be calculated using EBITDA for the fiscal quarter then ending, annualized for
four (4) quarters; for the fiscal quarter ending December 31, 2001, this
covenant shall be calculated using EBITDA for the fiscal quarters ending on
September 30, 2001 and December 31, 2001, annualized for four (4) quarters,
for the fiscal quarter ending March 31, 2002, this covenant shall be
calculated using EBITDA for the fiscal quarters ending on September 30, 2001,
December 31, 2001 and March 31, 2002 annualized for four (4) quarters:
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------------------------------------------------------------ --------------------------------------------------------
Period Ratio
------------------------------------------------------------ --------------------------------------------------------
September 30, 2001 3.25 to 1.0
------------------------------------------------------------ --------------------------------------------------------
December 31, 2001, March 31, 2002, June 30, 2002 and
September 30, 2002 3.0 to 1.0
------------------------------------------------------------ --------------------------------------------------------
December 31, 2002 and each fiscal quarter ending thereafter 2.5 to 1.0
------------------------------------------------------------ --------------------------------------------------------
7.26 Minimum Tangible Net Worth.
The Borrower will maintain a minimum Tangible Net Worth at all times
equal to not less than $3,500,000 through December 31, 2001 which amount shall
increase as of the end of each Fiscal Year for the succeeding Fiscal Year in
an amount equal to fifty percent (50%) of consolidated net income, one hundred
percent (100%) of the amount of any equity interests issued in such Fiscal
Year for cash, and still outstanding, plus one hundred percent (100%) of the
amount of any write-up of any assets or equity.
7.27 Minimum Availability.
As of the Closing Date the Borrower shall have Availability of not
less than $7,000,000, after giving effect all of the transactions to occur as
of the Closing Date and after deducting the amount of accounts payable more
than thirty (30) days past due.
7.28 Use of Proceeds.
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, use any portion of the Loan proceeds, directly or indirectly, (a) to
purchase or carry Margin Stock, (b) to repay or otherwise refinance
indebtedness of the Borrower or others incurred to purchase or carry Margin
Stock, (c) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (d) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
7.29 Further Assurances.
The Borrower shall execute and deliver, or cause to be executed and
delivered, to the Agent and/or the Lenders such documents and agreements, and
shall take or cause to be taken such actions, as the Agent or any Lender may,
from time to time, request to carry out the terms and conditions of this
Agreement and the other Loan Documents.
7.30 Depository Bank.
Not later than ninety (90) days after the Closing Date, Borrower shall
maintain Bank as its principal depository bank, including maintenance of
operating, administrative, cash management, collection activity and other
deposit accounts for the conduct of its business.
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7.31 Net ▇▇▇▇▇▇▇▇ in Excess of Costs.
Net ▇▇▇▇▇▇▇▇ in Excess of Costs shall not exceed $8,000,000 at any
time, provided, however, to the extent such sum is exceeded, the amount in
excess of $8,000,000 shall be reserved from Availability. At such time as the
Term Loans are partially or totally repaid from the proceeds of the sale of a
portion of the Real Estate, an appraisal of the remaining Real Estate shall be
conducted by an appraiser acceptable to the Lenders and:
(a) if the difference between 70% of the appraised value of
the Real Estate and the remaining principal balance of the Term Loans (the
"Real Estate Equity") is greater than $5,200,000, the cap on Net ▇▇▇▇▇▇▇▇
in Excess of Costs shall remain at $8,000,000; and
(b) if the Real Estate Equity is less than $5,200,000, then
the cap on Net ▇▇▇▇▇▇▇▇ in Excess of Costs shall be reduced by an amount
equal to seventy percent (70%) of the difference between $5,200,000 and
the Real Equity, but in no event will the cap on Net ▇▇▇▇▇▇▇▇ in Excess of
Costs be less than $5,000,000.
Upon the sale of the Real Estate in its entirety, the cap on Net ▇▇▇▇▇▇▇▇
in Excess of Costs shall be reduced to $5,000,000.
7.32 Federal Government Contracts and Government Contracts.
(a) The Borrower shall immediately notify the Agent of the
execution of any Federal Government Contract with a contract value equal to or
greater than Five Hundred Thousand Dollars ($500,000) and shall in accordance
with the provisions of the Security Agreement execute any instruments and take
any steps in order that all moneys due and to become due under such Federal
Government Contracts shall be assigned to the Agent as security for the
Obligations and notice thereof given to the Government under the Federal
Assignment of Claims Act of 1940 (31 U.S.C. Section 3727 and 41 U.S.C. Section
15) or any other similar applicable law.
(b) The Borrower shall immediately notify the Agent of the
execution of any Government Contract with a contract value equal to or greater
than Five Hundred Thousand Dollars ($500,000) and shall in accordance with the
provisions of the Security Agreement execute any instruments and take any
steps required by the Agent in order that all moneys due and to become due
under such Government Contracts shall be assigned to the Agent as security for
the Obligations in accordance with all applicable law.
7.33 Transactions with Subsidiaries.
Neither the Borrower nor any of its Subsidiaries shall advance any
funds or transfer any assets, to any Person that has not executed a Guaranty
or an Additional Guarantor Joinder Supplement prior to the date of such
advance or transfer or before such time as the Agent has taken all steps
deemed necessary by the Agent to perfect its Lien on the assets of such
Person.
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ARTICLE 8
CONDITIONS OF LENDING
8.1 Conditions Precedent to Making of Loans on the Closing Date.
The obligation of the Lenders to make the initial Revolving Loans and
the Term Loans on the Closing Date, and the obligation of the Agent to cause
the Letter of Credit Issuer to issue any Letter of Credit on the Closing Date,
are subject to the following conditions precedent having been satisfied in a
manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have
been executed by each party thereto and the Borrower shall have performed and
complied with all covenants, agreements and conditions contained herein and
the other Loan Documents which are required to be performed or complied with
by the Borrower before or on such Closing Date.
(b) Upon making the Revolving Loans (including such
Revolving Loans made to finance the Closing Fee or otherwise as reimbursement
for fees, costs and expenses then payable under this Agreement) and with all
its obligations current, the Borrower shall have Availability of at least
$7,000,000.
(c) All representations and warranties made hereunder and in
the other Loan Documents shall be true and correct as if made on such date.
(d) No Default or Event of Default shall have occurred and
be continuing after giving effect to the Loans to be made and the Letters of
Credit to be issued on the Closing Date.
(e) The Agent and the Lenders shall have received such
opinions of counsel for the Borrower and its Subsidiaries as the Agent or any
Lender shall request, each such opinion to be in a form, scope, and substance
satisfactory to the Agent, the Lenders, and their respective counsel.
(f) The Agent shall have received an ALTA title policy, in
form and substance acceptable to Agent, with respect to the Mortgage,
accompanied by a current survey satisfactory in all respects to the Agent of
the subject real property, prepared by a registered land surveyor or engineer
satisfactory to the Agent.
(g) The Agent shall have received:
(i) acknowledgment copies of proper financing
statements, duly filed on or before the Closing Date under the UCC of all
jurisdictions that the Agent may deem necessary or desirable in order to
perfect the Agent's Liens; and
(ii) duly executed UCC-3 Termination Statements and
such other instruments, in form and substance satisfactory to the Agent, as
shall be necessary to terminate and satisfy all Liens on the Property of the
Borrower and its Subsidiaries except Permitted Liens.
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(h) The Borrower shall have paid all fees and expenses of
the Agent and the Attorney Costs incurred in connection with any of the Loan
Documents and the transactions contemplated thereby to the extent invoiced.
(i) The Agent shall have received evidence, in form, scope,
and substance, reasonably satisfactory to the Agent, of all insurance coverage
as required by this Agreement.
(j) The Agent and the Lenders shall have had an opportunity,
if they so choose, to examine the books of account and other records and files
of the Borrower and to make copies thereof, and to conduct a pre-closing audit
which shall include, without limitation, verification of Accounts, and the
Borrowing Base, and the results of such examination and audit shall have been
satisfactory to the Agent and the Lenders in all respects.
(k) All proceedings taken in connection with the execution
of this Agreement, the Term Loan Notes, all other Loan Documents and all
documents and papers relating thereto shall be satisfactory in form, scope,
and substance to the Agent and the Lenders.
(l) Without limiting the generality of the items described
above, the Borrower and each Person guarantying or securing payment of the
Obligations shall have delivered or caused to be delivered to the Agent (in
form and substance reasonably satisfactory to the Agent), the financial
statements, instruments, resolutions, documents, agreements, certificates,
opinions and other items set forth on the "Closing Checklist" delivered by the
Agent to the Borrower prior to the Closing Date.
(m) On or prior to the Closing Date, the Borrower shall
deliver to the Agent a list (the "Collateral Disclosure List") which shall
contain such information with respect to the Borrower's business and real and
personal property as the Agent may require and shall be certified by the chief
financial officer of the Borrower, all in the form provided to the Borrower by
the Agent. Promptly after demand by the Agent, the Borrower shall furnish to
the Agent an update of the information contained in the Collateral Disclosure
List at any time and from time to time as may be requested by the Agent.
(n) No material adverse change shall have occurred, as
determined by Agent and Lenders in their sole discretion, in the business,
operations, profits or prospects of Borrower and its Subsidiary since the
financial statements dated March 31, 2001, and Agent and Lenders shall have
received assurances reasonably satisfactory to them (such as in the form of
quarterly GAAP financial statements) that Borrower shall have, as of the
closing date, met the financial performance projections dated November 7, 2000
as supplemented by quarterly projections heretofore delivered to Agent,
adjusted to eliminate any post-closing savings.
(o) Receipt of a report being prepared by Borrower, at the
request of Agent and Lenders, with respect to an investigation and audit of
the Real Estate, the scope of which has been defined by the Agent, showing
that the Real Estate is environmentally acceptable to the Agent and Lenders.
All aspects of the environmental report and the review thereof by an
independent environmental consultant acceptable to the Lenders must be
satisfactory to the Lenders in all respects.
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(p) There shall exist (i) no action, suit, investigation,
litigation, or proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality, other than the litigation listed
on Schedule 5.8 to the Merger Agreement and the Summary of Current Significant
Litigation dated March 2001 delivered by the Borrower to the Agent, updated as
of the date hereof on Schedule 6.14, and (ii) no development in any of the
pending matters disclosed in the deliveries referred to in (i) immediately
above, that in Lenders' reasonable judgment (A) could reasonably be expected
to have a material adverse effect on the business, condition (financial or
otherwise), operations, performance, or properties of Borrower and its
Subsidiaries taken as a whole or which could impair Borrower's ability to
perform satisfactorily under the proposed financing arrangement or (B) could
reasonably be expected to materially and adversely affect the transactions
contemplated under this Agreement. As of the Closing Date, the Borrower shall
have provided to the Agent a current Summary of Current Significant Litigation
in a form consistent with that delivered prior hereto and referred to in (i)
of this subsection (p).
(q) Borrower shall have purchased interest rate protection
on a minimum of twenty five percent (25%) of the Senior Debt through a hedging
arrangement with the Bank or another institution acceptable to Agent. The
Agent will establish a reserve against Availability under the Revolving Loans
to address any credit exposure to Bank associated with this product.
(r) The acquisition and merger contemplated in the Merger
Agreement shall have been completed and closed prior to or simultaneously
herewith upon terms and conditions satisfactory to the Agent, in accordance
with the Merger Agreement and applicable Laws. The Agent shall have received
photocopies of all Merger Agreement Documents executed, delivered and/or
furnished in connection with the consummation of the transactions contemplated
in the Merger Agreement, together with a certificate signed by the chief
executive officer of the Borrower certifying that (i) the Merger Agreement and
the other Merger Agreement Documents furnished to the Agent are true, correct,
in full force and effect and the provisions thereof have not been in any way
modified, amended or waived and (ii) the acquisition and merger contemplated
in the Merger Agreement has been closed and completed in accordance with the
Merger Agreement and the other Merger Agreement Documents furnished to the
Agent and in accordance with all applicable Laws.
(s) Evidence satisfactory to Agent and Lenders that the
Borrower has amended the 401K and "pay-for-performance" bonus plans to obtain
projected cash savings as set forth in projections provided to Lenders by
Parent.
(t) The Agent shall have received the fully executed
Subordination Agreement in form and content acceptable to the Agent. The Agent
shall have received and approved copies of the fully executed Subordinated
Debt Loan Documents, all of which must be in form and content acceptable to
the Agent.
(u) The Agent shall have received a certificate signed by
the chief executive officer of the Borrower, certifying to the Agent and the
Lenders that the Borrower (i) has received the proceeds of the Subordinated
Debt in an aggregate amount not less than $27,000,000, in accordance with, and
pursuant to, the terms and conditions of the Subordinated
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Debt Loan Documents, and has applied the same to such purposes as has been
previously disclosed to, and approved by, the Agent and the Lenders, (ii) has
delivered to the Agent a true and correct photocopy of all Subordinated Debt
Loan Documents, and (iii) has received Equity in an aggregate amount at least
equal to $3,500,000. The Borrower shall have delivered such evidence of the
Equity as may be requested by the Agent. The Agent and the Lenders must be
satisfied that such Equity has been paid to the Borrower on such terms and
conditions as shall have been previously disclosed to, and approved by, the
Agent.
(v) The Borrower shall have executed and delivered to the
Agent the Fee Letters.
The acceptance by the Borrower of any Loans made or Letters of Credit
issued on the Closing Date shall be deemed to be a representation and warranty
made by the Borrower to the effect that all of the conditions precedent to the
making of such Loans or the issuance of such Letters of Credit have been
satisfied, with the same effect as delivery to the Agent and the Lenders of a
certificate signed by a Responsible Officer of the Borrower, dated the Closing
Date, to such effect.
Execution and delivery to the Agent by a Lender of a counterpart of this
Agreement shall be deemed confirmation by such Lender that (a) all conditions
precedent in this Section 8.1 have been fulfilled to the satisfaction of such
Lender, (b) the decision of such Lender to execute and deliver to the Agent an
executed counterpart of this Agreement was made by such Lender independently
and without reliance on the Agent or any other Lender as to the satisfaction
of any condition precedent set forth in this Section 8.1, and (c) all
documents sent to such Lender for approval consent, or satisfaction were
acceptable to such Lender.
8.2 Conditions Precedent to Each Loan.
The obligation of the Lenders to make each Loan, including the initial
Revolving Loans on the Closing Date and the Term Loans, and the obligation of
the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit
shall be subject to the further conditions precedent that on and as of the
date of any such extension of credit:
(a) The following statements shall be true, and the
acceptance by the Borrower of any extension of credit shall be deemed to be a
statement to the effect set forth in clauses (i), (ii) and (iii) with the same
effect as the delivery to the Agent and the Lenders of a certificate signed by
a Responsible Officer, dated the date of such extension of credit, stating
that:
(i) The representations and warranties contained in
this Agreement and the other Loan Documents are correct in all material
respects on and as of the date of such extension of credit as though made on
and as of such date, other than any such representation or warranty which
relates to a specified prior date and except to the extent the Agent and the
Lenders have been notified in writing by the Borrower that any representation
or warranty is not correct and the Required Lenders have explicitly waived in
writing compliance with such representation or warranty; and
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(ii) No event has occurred, or would result from such
extension of credit, that constitutes a Default or an Event of Default; and
(iii) No event has occurred, or would result from such
extension of credit, which has had or would have a Material Adverse Effect.
(b) No such Borrowing shall exceed Availability, provided,
however, that the foregoing conditions precedent are not conditions to each
Lender participating in or reimbursing the Bank or the Agent for such Lenders'
Revolving Loan Pro Rata Share of any Non-Ratable Loan or Agent Advance made in
accordance with the provisions of Section 1.2(h) (Making of Non-Ratable Loans)
and Section 1.2(i) (Agent Advances).
ARTICLE 9
DEFAULT; REMEDIES
9.1 Events of Default.
It shall constitute an event of default ("Event of Default") if any one or
more of the following shall occur for any reason:
(a) Payment. Any failure by the Borrower to pay the principal
of or interest or premium on any of the Obligations or any fee or other amount
owing hereunder when due, whether upon demand or otherwise;
(b) Representations and Warranties. Any representation or
warranty made or deemed made by the Borrower in this Agreement or by the
Borrower or any of its Subsidiaries in any of the other Loan Documents, any
Financial Statement, or any certificate furnished by the Borrower or any of its
Subsidiaries at any time to the Agent or any Lender shall prove to be untrue in
any material respect as of the date on which made, deemed made, or furnished;
(c) Specific Covenants. Any default shall occur in the
observance or performance of any of the covenants or agreements contained in
this Agreement or any other Loan Document, or any other agreement entered into
at any time to which the Borrower or any Subsidiary and the Agent or any Lender
are party (including in respect of any Bank Products);
(d) Other Indebtedness. Any default shall occur with respect
to any Debt (other than the Obligations) of the Borrower or any of its
Subsidiaries in an outstanding principal amount which exceeds $250,000, or under
any agreement or instrument under or pursuant to which any such Debt may have
been issued, created, assumed, or guaranteed by the Borrower or any of its
Subsidiaries, and such default shall continue for more than the period of grace,
if any, therein specified, if the effect thereof (with or without the giving of
notice or further lapse of time or both) is to accelerate, or to permit the
holders of any such Debt to accelerate, the maturity of any such Debt; or any
such Debt shall be declared due and payable or be required to be prepaid (other
than by a regularly scheduled required prepayment) prior to the stated maturity
thereof;
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(e) Bankruptcy. The Borrower or any Guarantor shall (i) file a
voluntary petition in bankruptcy or file a voluntary petition or an answer or
otherwise commence any action or proceeding seeking reorganization, arrangement
or readjustment of its debts or for any other relief under the federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing, or consent to, approve of, or
acquiesce in, any such petition, action or proceeding; (ii) apply for or
acquiesce in the appointment of a receiver, assignee, liquidator, sequestrator,
custodian, monitor, trustee or similar officer for it or for all or any part of
its property; (iii) make an assignment for the benefit of creditors; or (iv) be
unable generally to pay its debts as they become due;
(f) Involuntary Bankruptcy. An involuntary petition shall be
filed or an action or proceeding otherwise commenced seeking reorganization,
arrangement, consolidation or readjustment of the debts of the Borrower or any
Guarantor or for any other relief under the federal Bankruptcy Code, as amended,
or under any other bankruptcy or insolvency act or law, state or federal, now or
hereafter existing and such petition or proceeding shall not be dismissed within
thirty (30) days after the filing or commencement thereof or an order of relief
shall be entered with respect thereto;
(g) Receiver; Attachment. A receiver, assignee, liquidator,
sequestrator, custodian, monitor, trustee or similar officer for the Borrower or
any Guarantor or for all or any part of its property shall be appointed or a
warrant of attachment, execution or similar process shall be issued against any
part of the property of the Borrower or any of its Subsidiaries;
(h) Dissolution. The Borrower or any Guarantor shall file a
certificate of dissolution under applicable state law or shall be liquidated,
dissolved or wound-up or shall commence or have commenced against it any action
or proceeding for dissolution, winding-up or liquidation, or shall take any
corporate action in furtherance thereof;
(i) Condemnation; Seizure. All or any material part of the
property of the Borrower or any Guarantor shall be nationalized, expropriated or
condemned, seized or otherwise appropriated, or custody or control of such
property or of the Borrower or such Guarantor shall be assumed by any
Governmental Authority or any court of competent jurisdiction at the instance of
any Governmental Authority, except where contested in good faith by proper
proceedings diligently pursued where a stay of enforcement is in effect;
(j) Termination of Loan Documents. Any Loan Document shall be
terminated, revoked or declared void or invalid or unenforceable or challenged
by the Borrower or any other obligor;
(k) Judgments. One or more judgments, orders, decrees or
arbitration awards is entered against the Borrower involving in the aggregate
liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage) as to any single or related or
unrelated series of transactions, incidents or conditions, of $250,000 or more,
and the same shall remain unsatisfied, unvacated and unstayed pending appeal for
a period of ten (10) days after the entry thereof;
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(l) Uninsured Loss. Any loss, theft, damage or destruction of
any item or items of Collateral or other property of the Borrower or any
Subsidiary occurs that could reasonably be expected to cause a Material Adverse
Effect and is not adequately covered by insurance;
(m) RICO Action. There is filed against the Borrower or any of
its Subsidiaries any action, suit or proceeding under any federal or state
racketeering statute (including the Racketeer Influenced and Corrupt
Organization Act of 1970), which action, suit or proceeding (i) is not dismissed
within one hundred twenty (120) days, and (ii) could reasonably be expected to
result in the confiscation or forfeiture of any material portion of the
Collateral;
(n) Loss of Lien. For any reason other than the failure of the
Agent to take any action available to it to maintain perfection of the Agent's
Liens, pursuant to the Loan Documents, any Loan Document ceases to be in full
force and effect or any Lien with respect to any material portion of the
Collateral intended to be secured thereby ceases to be, or is not, valid,
perfected and prior to all other Liens (other than Permitted Liens) or is
terminated, revoked or declared void;
(o) ERISA. An ERISA Event shall occur with respect to a
Pension Plan or Multi-employer Plan that has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multi-employer Plan or the PBGC in an aggregate amount in excess
of $100,000; (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds $100,000; or (iii) the Borrower or any
Subsidiary shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multi-employer Plan in an aggregate amount
in excess of $100,000;
(p) Change of Control. There occurs a Change of Control; or
(q) Material Adverse Effect. There occurs an event having a
Material Adverse Effect.
(r) Contract Default, Debarment or Suspension. Default shall
be made under any Federal Government Contract, or any Federal Government
Contract is terminated for default by the Federal Government for any reason
whatsoever, or if the Borrower is debarred or suspended, whether temporarily or
permanently, by the Federal Government.
9.2 Remedies.
(a) If a Default or an Event of Default exists, the Agent may,
in its discretion, and shall, at the direction of the Required Lenders, do one
or more of the following at any time or times and in any order, without notice
to or demand on the Borrower: (i) reduce the Maximum Revolver Amount, or the
advance rates against Eligible Accounts used in computing the Borrowing Base, or
reduce one or more of the other elements used in computing the Borrowing Base;
(ii) restrict the amount of or refuse to make Revolving Loans; and (iii)
restrict or refuse to provide Letters of Credit or Credit Support. If an Event
of Default exists, the Agent shall, at the direction of the Required Lenders, do
one or more of the following, in addition to the actions described in the
preceding sentence, at any time or times and in any order, without notice
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to or demand on the Borrower: (A) terminate the Commitments and this
Agreement; (B) declare any or all Obligations to be immediately due and
payable; provided, however, that upon the occurrence of any Event of Default
described in Section 9.1(e) (Bankruptcy, Section 9.1(f) (Involuntary
Bankruptcy), Section 9.1(g) (Receiver: Attachment), or Section 9.1(h)
(Dissolution), the Commitments shall automatically and immediately expire and
all Obligations shall automatically become immediately due and payable without
notice or demand of any kind; (C) require the Borrower to cash collateralize
all outstanding Letter of Credit Obligations; and (D) pursue its other rights
and remedies under the Loan Documents and applicable law.
(b) If an Event of Default has occurred: (i) the Agent shall
have for the benefit of the Lenders, in addition to all other rights of the
Agent and the Lenders, the rights and remedies of a secured party under the Loan
Documents and the UCC; (ii) the Agent may, at any time, take possession of the
Collateral and keep it on the Borrower's premises, at no cost to the Agent or
any Lender, or remove any part of it to such other place or places as the Agent
may desire, or the Borrower shall, upon the Agent's demand, at the Borrower's
cost, assemble the Collateral and make it available to the Agent at a place
reasonably convenient to the Agent; and (iii) the Agent may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise, at
such prices and upon such terms as the Agent deems advisable, in its sole
discretion, and may, if the Agent deems it reasonable, postpone or adjourn any
sale of the Collateral by an announcement at the time and place of sale or of
such postponed or adjourned sale without giving a new notice of sale. Without in
any way requiring notice to be given in the following manner, the Borrower
agrees that any notice by the Agent of sale, disposition or other intended
action hereunder or in connection herewith, whether required by the UCC or
otherwise, shall constitute reasonable notice to the Borrower if such notice is
mailed by registered or certified mail, return receipt requested, postage
prepaid, or is delivered personally against receipt, at least five (5) Business
Days prior to such action to the Borrower's address specified in or pursuant to
Section 13.8 (Notices). If any Collateral is sold on terms other than payment in
full at the time of sale, no credit shall be given against the Obligations until
the Agent or the Lenders receive payment, and if the buyer defaults in payment,
the Agent may resell the Collateral without further notice to the Borrower. In
the event the Agent seeks to take possession of all or any portion of the
Collateral by judicial process, the Borrower irrevocably waives: (A) the posting
of any bond, surety or security with respect thereto which might otherwise be
required; (B) any demand for possession prior to the commencement of any suit or
action to recover the Collateral; and (C) any requirement that the Agent retain
possession and not dispose of any Collateral until after trial or final
judgment. The Borrower agrees that the Agent has no obligation to preserve
rights to the Collateral or marshal any Collateral for the benefit of any
Person. The Agent is hereby granted a license or other right to use, without
charge, the Borrower's labels, patents, copyrights, name, trade secrets, trade
names, trademarks, and advertising matter, or any similar property, in
completing production of, advertising or selling any Collateral, and the
Borrower's rights under all licenses and all franchise agreements shall inure to
the Agent's benefit for such purpose. The proceeds of sale shall be applied
first to all expenses of sale, including attorneys' fees, and then to the
Obligations. The Agent will return any excess to the Borrower and the Borrower
shall remain liable for any deficiency.
(c) If an Event of Default occurs, the Borrower hereby waives
all rights to notice and hearing prior to the exercise by the Agent of the
Agent's rights to repossess
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the Collateral without judicial process or to reply, attach or levy upon the
Collateral without notice or hearing.
ARTICLE 10
TERM AND TERMINATION
The term of this Agreement shall end on the Stated Termination Date
unless sooner terminated in accordance with the terms hereof. The Agent upon
direction from the Required Lenders may terminate this Agreement without notice
upon the occurrence of an Event of Default. Upon the effective date of
termination of this Agreement for any reason whatsoever, all Obligations
(including all unpaid principal, accrued and unpaid interest and any early
termination or prepayment fees or penalties) shall become immediately due and
payable and the Borrower shall immediately arrange for the cancellation and
return of Letters of Credit then outstanding. Notwithstanding the termination of
this Agreement, until all Obligations are indefeasibly paid and performed in
full in cash, the Borrower shall remain bound by the terms of this Agreement and
shall not be relieved of any of its Obligations hereunder or under any other
Loan Document, and the Agent and the Lenders shall retain all their rights and
remedies hereunder (including the Agent's Liens in and all rights and remedies
with respect to all then existing and after-arising Collateral).
ARTICLE 11
AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1 Amendments and Waivers.
(a) No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders (or by the Agent at the written
request of the Required Lenders) and the Borrower and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Lenders and the Borrower
and acknowledged by the Agent, do any of the following:
(i) increase or extend the Commitment of any
Lender;
(ii) postpone or delay any date fixed by this
Agreement or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document;
(iii) reduce the principal of, or the rate of
interest specified herein on any Loan, or any fees or other amounts
payable hereunder or under any other Loan Document;
(iv) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Loans which is
required for the Lenders or any of them to take any action hereunder;
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(v) increase any of the percentages set
forth in the definition of the Borrowing Base;
(vi) amend this Section 11.1 or any provision
of this Agreement providing for consent or other action by all Lenders;
(vii) release any Guaranties of the
Obligations or release Collateral other than as permitted by Section
12.11 (Collateral Matters);
(viii) change the definition of "Required
Lenders"; or
(ix) increase the Maximum Revolver Amount and
Letter of Credit Subfacility;
provided, however, the Agent may, in its sole discretion and notwithstanding the
limitations contained in clauses (v) and (ix) above and any other terms of this
Agreement, make Agent Advances in accordance with Section 1.2(i) (Agent
Advances) and, provided further, that no amendment, waiver or consent shall,
unless in writing and signed by the Agent, affect the rights or duties of the
Agent under this Agreement or any other Loan Document and provided further, that
Schedule 1.2 hereto (Commitments) may be amended from time to time by Agent
alone to reflect assignments of Commitments in accordance herewith.
(b) If any fees are paid to the Lenders as
consideration for amendments, waivers or consents with respect to this
Agreement, at Agent's election, such fees may be paid only to those Lenders that
agree to such amendments, waivers or consents within the time specified for
submission thereof.
(c) If, in connection with any proposed amendment,
waiver or consent (a "Proposed Change"):
(i) requiring the consent of all Lenders,
the consent of Required Lenders is obtained, but the consent of other
Lenders is not obtained (any such Lender whose consent is not obtained
as described in this clause (i) and in clause (ii) below being referred
to as a "Non-Consenting Lender"), or
(ii) requiring the consent of Required
Lenders, the consent of Required Lenders is obtained,
then, so long as the Agent is not a Non-Consenting Lender, at the Borrower's
request, the Agent or an Eligible Assignee shall have the right (but not the
obligation) with the Agent's approval, to purchase from the Non-Consenting
Lenders, and the Non-Consenting Lenders agree that they shall sell, all the
Non-Consenting Lenders' Commitments for an amount equal to the principal
balances thereof and all accrued interest and fees with respect thereto through
the date of sale pursuant to Assignment and Acceptance Agreement(s), without
premium or discount. Any such sale shall not be subject to payment of any early
termination fee required pursuant to Section 3.2 (Termination of Facility).
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11.2 Assignments; Participations.
(a) Any Lender may, with the written consent of the
Agent (which consent shall not be unreasonably withheld), assign and delegate to
one or more Eligible Assignees (provided that no consent of the Agent shall be
required in connection with any assignment and delegation by a Lender to an
Affiliate of such Lender) (each an "Assignee") all, or any part, of the Loans,
the Commitments and the other rights and obligations of such Lender hereunder,
in a minimum amount of $5,000,000 (provided that, unless an assignor Lender has
assigned and delegated all of its Loans and Commitments, no such assignment
and/or delegation shall be permitted unless, after giving effect thereto, such
assignor Lender retains a Commitment in a minimum amount of $5,000,000;
provided, however, that the Borrower and the Agent may continue to deal solely
and directly with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Borrower and the Agent by such Lender and the
Assignee; (ii) such Lender and its Assignee shall have delivered to the Borrower
and the Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment
and Acceptance") together with any note or notes subject to such assignment and
(iii) the assignor Lender or Assignee has paid to the Agent a processing fee in
the amount of $3,500. The Borrower agrees to execute and deliver promptly new
promissory notes and replacement promissory notes, on the same terms as the
outstanding notes, as reasonably requested by the Agent to evidence assignments
of the Loans and Commitments in accordance herewith.
(b) From and after the date that the Agent receives
from the assignor Lender an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations, including, but not
limited to, the obligation to participate in Letters of Credit and Credit
Support have been assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender under the Loan Documents, and
(ii) the assignor Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (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, such Lender shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, 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 the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto or the attachment, perfection, or priority of any Lien granted
by the Borrower to the Agent or any Lender in the Collateral; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other Loan Document furnished pursuant hereto; (iii) such
Assignee confirms that it has
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received a copy of this Agreement, together with 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; (iv) such Assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such Assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers, including the discretionary rights and
incidental power, as are reasonably incidental thereto; and (vi) such Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) Immediately upon satisfaction of the
requirements of Section 11.2(a) (Assignments; Participations) shall be deemed to
be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more
commercial banks, financial institutions, or other Persons not Affiliates of the
Borrower (a "Participant") participating interests in any Loans, the Commitment
of that Lender and the other interests of that Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Borrower and the Agent shall continue to deal
solely and directly with the originating Lender in connection with the
originating Lender's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Lender shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan Document
except the matters set forth in Section 11.1(a) (i), (ii) and (iii) (Amendments
and Waivers), and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation; except that, if
amounts outstanding under this Agreement are due and unpaid, or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
and subject to the same limitation as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest in, or pledge,
all or any portion of its rights under and interest in this Agreement in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
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ARTICLE 12
THE AGENT
12.1 Appointment and Authorization.
Each Lender hereby designates and appoints Bank as its Agent
under this Agreement and the other Loan Documents and each Lender hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. The Agent agrees to act as such on the express
conditions contained in this ARTICLE 12. The provisions of this ARTICLE 12 are
solely for the benefit of the Agent and the Lenders and the Borrower shall have
no rights as a third party beneficiary of any of the provisions contained
herein. Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Agent have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties. Except as expressly otherwise provided in this Agreement,
the Agent shall have and may use its sole discretion with respect to exercising
or refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Agent is expressly entitled to take or assert
under this Agreement and the other Loan Documents, including (a) the
determination of the applicability of ineligibility criteria with respect to the
calculation of the Borrowing Base, (b) the making of Agent Advances pursuant to
Section 1.2(i) (Agent Advances), and (c) the exercise of remedies pursuant to
Section 9.2 (Remedies), and any action so taken or not taken shall be deemed
consented to by the Lenders.
12.2 Delegation of Duties.
The Agent may execute any of its duties under this Agreement or
any other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects as long as such selection was made
without gross negligence or willful misconduct.
12.3 Liability of Agent.
None of the Agent-Related Persons shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct), or (b) be
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary or Affiliate
of the
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Borrower, or any officer thereof, contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of the Borrower's
Subsidiaries or Affiliates.
12.4 Reliance by Agent.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Lenders (or all Lenders if so required by Section 11.1 (Amendments and Waivers))
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all of the Lenders.
12.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, unless the Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders in
accordance with ARTICLE 9; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable.
12.6 Credit Decision.
Each Lender acknowledges that none of the Agent-Related Persons
has made any representation or warranty to it, and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower and its
Affiliates, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender. Each Lender represents
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to the Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Affiliates, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower.
Each Lender also represents that it will, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of any of
the Agent-Related Persons.
12.7 Indemnification.
Whether or not the transactions contemplated hereby are
consummated, the Lenders shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrower and without
limiting the obligation of the Borrower to do so), in accordance with their Pro
Rata Shares of the Loans, from and against any and all Indemnified Liabilities
as such term is defined in Section 13.11 (Indemnity of the Agent and the Lenders
by the Borrower); provided, however, that no Lender shall be liable for the
payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall reimburse the
Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrower. The undertaking in this Section 12.7 shall survive the payment
of all Obligations hereunder and the resignation or replacement of the Agent.
12.8 Agent in Individual Capacity.
The Bank and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and its Subsidiaries and Affiliates as
though the Bank were not the Agent hereunder and without notice to or consent of
the Lenders. The Bank or its Affiliates may receive information regarding the
Borrower, its Affiliates and Account Debtors (including information that may be
subject to confidentiality obligations in favor of the Borrower or such
Subsidiary) and the Lenders acknowledge that the Agent and the Bank shall be
under no obligation to provide such information to them. With respect to its
Loans, the Bank shall have the same rights and powers
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under this Agreement as any other Lender and may exercise the same as though it
were not the Agent, and the terms "Lender" and "Lenders" include the Bank in its
individual capacity.
12.9 Successor Agent.
The Agent may resign as Agent upon at least thirty (30) days'
prior notice to the Lenders and the Borrower, such resignation to be effective
upon the acceptance of a successor agent to its appointment as Agent. In the
event the Bank sells all of its Commitment and Revolving Loans as part of a
sale, transfer or other disposition by the Bank of substantially all of its loan
portfolio, the Bank shall resign as Agent and such purchaser or transferee shall
become the successor Agent hereunder. Subject to the foregoing, if the Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders. If no successor agent is appointed
prior to the effective date of the resignation of the Agent, the Agent may
appoint, after consulting with the Lenders and the Borrower, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this ARTICLE 12 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
12.10 Withholding Tax.
(a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Agent, to deliver
to the Agent:
(i) if such Lender claims an exemption from,
or a reduction of, withholding tax under a United States of America tax
treaty, properly completed IRS Forms W-8BEN and W-8ECI before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid
under this Agreement is exempt from United States of America withholding
tax because it is effectively connected with a United States of America
trade or business of such Lender, two properly completed and executed
copies of IRS Form W-8ECI before the payment of any interest is due in
the first taxable year of such Lender and in each succeeding taxable
year of such Lender during which interest may be paid under this
Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be
required under the Code or other laws of the United States of America as
a condition to exemption from, or reduction of, United States of America
withholding tax.
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Such Lender agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or
reduction of, withholding tax under a United States of America tax treaty by
providing IRS Form FW-8BEN and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations owing to
such Lender, such Lender agrees to notify the Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Borrower to
such Lender. To the extent of such percentage amount, the Agent will treat such
Lender's IRS Form W-8BEN as no longer valid.
(c) If any Lender claiming exemption from United
States of America withholding tax by filing IRS Form W-8ECI with the Agent
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations owing to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest payment to
such Lender an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required by
subsection (a) of this Section 12.10 are not delivered to the Agent, then the
Agent may withhold from any interest payment to such Lender not providing such
forms or other documentation an amount equivalent to the applicable withholding
tax.
(e) If the IRS or any other Governmental Authority
of the United States of America or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including any taxes imposed by
any jurisdiction on the amounts payable to the Agent under this Section 12.10,
together with all costs and expenses (including Attorney Costs). The obligation
of the Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
12.11 Collateral Matters.
(a) The Lenders hereby irrevocably authorize the
Agent, at its option and in its sole discretion, to release any Agent's Liens
upon any Collateral (i) upon the termination of the Commitments and payment and
satisfaction in full by Borrower of all Loans and reimbursement obligations in
respect of Letters of Credit and Credit Support, and the termination of all
outstanding Letters of Credit (whether or not any of such obligations are due)
and all other Obligations; (ii) constituting property being sold or disposed of
if the Borrower certifies to the Agent that the sale or disposition is made in
compliance with Section 7.9 (Mergers, Consolidations or Sales) (and the Agent
may rely conclusively on any such certificate,
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without further inquiry); (iii) constituting property in which the Borrower
owned no interest at the time the Lien was granted or at any time thereafter; or
(iv) constituting property leased to the Borrower under a lease which has
expired or been terminated in a transaction permitted under this Agreement.
Except as provided above, the Agent will not release any of the Agent's Liens
without the prior written authorization of all of the Lenders; provided that the
Agent may, in its discretion, release the Agent's Liens on Collateral valued in
the aggregate not in excess of $500,000 during each Fiscal Year without the
prior written authorization of the Lenders and the Agent may release the Agent's
Liens on Collateral valued in the aggregate not in excess of $1,000,000 during
each Fiscal Year with the prior written authorization of Required Lenders. Upon
request by the Agent or the Borrower at any time, the Lenders will confirm in
writing the Agent's authority to release any Agent's Liens upon particular types
or items of Collateral pursuant to this Section 12.11.
(b) Upon receipt by the Agent of any authorization
required pursuant to Section 12.11(a) (Collateral Matters) from the Lenders of
the Agent's authority to release Agent's Liens upon particular types or items of
Collateral, and upon at least five (5) Business Days prior written request by
the Borrower, the Agent shall (and is hereby irrevocably authorized by the
Lenders to) execute such documents as may be necessary to evidence the release
of the Agent's Liens upon such Collateral; provided, however, that (i) the Agent
shall not be required to execute any such document on terms which, in the
Agent's opinion, would expose the Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations or any Liens (other than those expressly being released)
upon (or obligations of the Borrower in respect of) all interests retained by
the Borrower, including the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to
any of the Lenders to assure that the Collateral exists or is owned by the
Borrower or is cared for, protected or insured or has been encumbered, or that
the Agent's Liens have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Agent pursuant to any of the
Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Agent may act in
any manner it may deem appropriate, in its sole discretion given the Agent's own
interest in the Collateral in its capacity as one of the Lenders and that the
Agent shall have no other duty or liability whatsoever to any Lender as to any
of the foregoing.
12.12 Restrictions on Actions by Lenders; Sharing of Payments.
(a) Each of the Lenders agrees that it shall not,
without the express consent of all Lenders, and that it shall, to the extent it
is lawfully entitled to do so, upon the request of all Lenders, set off against
the Obligations, any amounts owing by such Lender to the Borrower or any
accounts of the Borrower now or hereafter maintained with such Lender. Each of
the Lenders further agrees that it shall not, unless specifically requested to
do so by the Agent, take or cause to be taken any action to enforce its rights
under this Agreement or against the
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Borrower, including the commencement of any legal or equitable proceedings, to
foreclose any Lien on, or otherwise enforce any security interest in, any of the
Collateral.
(b) If at any time or times any Lender shall receive
(i) by payment, foreclosure, setoff or otherwise, any proceeds of Collateral or
any payments with respect to the Obligations of the Borrower to such Lender
arising under, or relating to, this Agreement or the other Loan Documents,
except for any such proceeds or payments received by such Lender from the Agent
pursuant to the terms of this Agreement, or (ii) payments from the Agent in
excess of such Lender's ratable portion of all such distributions by the Agent,
such Lender shall promptly (A) turn the same over to the Agent, in kind, and
with such endorsements as may be required to negotiate the same to the Agent, or
in same day funds, as applicable, for the account of all of the Lenders and for
application to the Obligations in accordance with the applicable provisions of
this Agreement, or (B) purchase, without recourse or warranty, an undivided
interest and participation in the Obligations owed to the other Lenders so that
such excess payment received shall be applied ratably as among the Lenders in
accordance with their Pro Rata Shares; provided, however, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases of participations shall be rescinded in whole or in
part, as applicable, and the applicable portion of the purchase price paid
therefor shall be returned to such purchasing party, but without interest except
to the extent that such purchasing party is required to pay interest in
connection with the recovery of the excess payment.
12.13 Agency for Perfection.
Each Lender hereby appoints each other Lender as agent for the
purpose of perfecting the Lenders' security interest in assets that, in
accordance with Article 9 of the UCC can be perfected only by possession. Should
any Lender (other than the Agent) obtain possession of any such Collateral, such
Lender shall notify the Agent thereof, and, promptly upon the Agent's request
therefor shall deliver such Collateral to the Agent or in accordance with the
Agent's instructions.
12.14 Payments by Agent to Lenders.
All payments to be made by the Agent to the Lenders shall be
made by bank wire transfer or internal transfer of immediately available funds
to each Lender pursuant to wire transfer instructions delivered in writing to
the Agent on or prior to the Closing Date (or if such Lender is an Assignee, on
the applicable Assignment and Acceptance), or pursuant to such other wire
transfer instructions as each party may designate for itself by written notice
to the Agent. Concurrently with each such payment, the Agent shall identify
whether such payment (or any portion thereof) represents principal, premium or
interest on the Revolving Loans, Term Loans or otherwise. Unless the Agent
receives notice from the Borrower prior to the date on which any payment is due
to the Lenders that the Borrower will not make such payment in full as and when
required, the Agent may assume that the Borrower has made such payment in full
to the Agent on such date in immediately available funds and the Agent may (but
shall not be so required), in reliance upon such assumption, distribute to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower has not made such payment in full to the Agent,
each Lender shall repay to the Agent on demand such amount distributed to such
Lender, together with interest thereon at the Federal Funds Rate for each day
from the date
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such amount is distributed to such Lender until the date repaid.
12.15 Settlement.
(a) General Procedures. Each Lender's funded portion
of the Revolving Loans is intended by the Lenders to be equal at all times to
such Lender's Pro Rata Share of the outstanding Revolving Loans. Notwithstanding
such agreement, the Agent, the Bank, and the other Lenders agree (which
agreement shall not be for the benefit of or enforceable by the Borrower) that
in order to facilitate the administration of this Agreement and the other Loan
Documents, settlement among them as to the Revolving Loans, the Non-Ratable
Loans and the Agent Advances shall take place on a periodic basis in accordance
with the following provisions:
(i) The Agent shall request settlement
("Settlement") with the Lenders on at least a weekly basis, or on a more
frequent basis at Agent's election, (A) on behalf of the Bank, with respect to
each outstanding Non-Ratable Loan, (B) for itself, with respect to each Agent
Advance, and (C) with respect to collections received, in each case, by
notifying the Lenders of such requested Settlement by telecopy, telephone or
other similar form of transmission, of such requested Settlement, no later than
12:00 noon (Eastern time) on the date of such requested Settlement (the
"Settlement Date"). Each Lender (other than the Bank, in the case of Non-Ratable
Loans and the Agent in the case of Agent Advances) shall transfer the amount of
such Lender's Pro Rata Share of the outstanding principal amount of the
Non-Ratable Loans and Agent Advances with respect to each Settlement to the
Agent, to Agent's account, not later than 2:00 p.m. (Eastern time), on the
Settlement Date applicable thereto. Settlements may occur during the
continuation of a Default or an Event of Default and whether or not the
applicable conditions precedent set forth in ARTICLE 8 have then been satisfied.
Such amounts made available to the Agent shall be applied against the amounts of
the applicable Non-Ratable Loan or Agent Advance and, together with the portion
of such Non-Ratable Loan or Agent Advance representing the Bank's Pro Rata Share
thereof, shall constitute Revolving Loans of such Lenders. If any such amount is
not transferred to the Agent by any Lender on the Settlement Date applicable
thereto, the Agent shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the Federal Funds Rate for the first
three (3) days from and after the Settlement Date and thereafter at the Interest
Rate then applicable to the Revolving Loans (A) on behalf of the Bank, with
respect to each outstanding Non-Ratable Loan, and (B) for itself, with respect
to each Agent Advance.
(ii) Notwithstanding the foregoing, not more
than one (1) Business Day after demand is made by the Agent (whether before or
after the occurrence of a Default or an Event of Default and regardless of
whether the Agent has requested a Settlement with respect to a Non-Ratable Loan
or Agent Advance), each other Lender (A) shall irrevocably and unconditionally
purchase and receive from the Bank or the Agent, as applicable, without recourse
or warranty, an undivided interest and participation in such Non-Ratable Loan or
Agent Advance equal to such Lender's Pro Rata Share of such Non-Ratable Loan or
Agent Advance and (B) if Settlement has not previously occurred with respect to
such Non-Ratable Loans or Agent Advances, upon demand by Bank or Agent, as
applicable, shall pay to Bank or Agent, as applicable, as the purchase price of
such participation an amount equal to one-hundred percent (100%) of such
Lender's Pro Rata Share of such Non-Ratable Loans or Agent Advances. If such
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amount is not in fact made available to the Agent by any Lender, the Agent shall
be entitled to recover such amount on demand from such Lender together with
interest thereon at the Federal Funds Rate for the first three (3) days from and
after such demand and thereafter at the Interest Rate then applicable to Base
Rate Revolving Loans.
(iii) From and after the date, if any, on
which any Lender purchases an undivided interest and participation in any
Non-Ratable Loan or Agent Advance pursuant to clause (ii) above, the Agent shall
promptly distribute to such Lender, such Lender's Pro Rata Share of all payments
of principal and interest and all proceeds of Collateral received by the Agent
in respect of such Non-Ratable Loan or Agent Advance.
(iv) Between Settlement Dates, the Agent, to
the extent no Agent Advances are outstanding, may pay over to the Bank any
payments received by the Agent, that in accordance with the terms of this
Agreement would be applied to the reduction of the Revolving Loans, for
application to the Bank's Revolving Loans including Non-Ratable Loans. If, as of
any Settlement Date, collections received since the then immediately preceding
Settlement Date have been applied to the Bank's Revolving Loans (other than to
Non-Ratable Loans or Agent Advances in which such Lender has not yet funded its
purchase of a participation pursuant to clause (ii) above), as provided for in
the previous sentence, the Bank shall pay to the Agent for the accounts of the
Lenders, to be applied to the outstanding Revolving Loans of such Lenders, an
amount such that each Lender shall, upon receipt of such amount, have, as of
such Settlement Date, its Pro Rata Share of the Revolving Loans. During the
period between Settlement Dates, the Bank with respect to Non-Ratable Loans, the
Agent with respect to Agent Advances, and each Lender with respect to the
Revolving Loans other than Non-Ratable Loans and Agent Advances, shall be
entitled to interest at the applicable rate or rates payable under this
Agreement on the actual average daily amount of funds employed by the Bank, the
Agent and the other Lenders.
(v) Unless the Agent has received written
notice from a Lender to the contrary, the Agent may assume that the applicable
conditions precedent set forth in ARTICLE 8 have been satisfied and the
requested Borrowing will not exceed Availability on any Funding Date for a
Revolving Loan or Non-Ratable Loan.
(b) Lenders' Failure to Perform. All Revolving Loans
(other than Non-Ratable Loans and Agent Advances) shall be made by the Lenders
simultaneously and in accordance with their Pro Rata Shares. It is understood
that (i) no Lender shall be responsible for any failure by any other Lender to
perform its obligation to make any Revolving Loans hereunder, nor shall any
Commitment of any Lender be increased or decreased as a result of any failure by
any other Lender to perform its obligation to make any Revolving Loans
hereunder, (ii) no failure by any Lender to perform its obligation to make any
Revolving Loans hereunder shall excuse any other Lender from its obligation to
make any Revolving Loans hereunder, and (iii) the obligations of each Lender
hereunder shall be several, not joint and several.
(c) Defaulting Lenders. Unless the Agent receives
notice from a Lender on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior to the date of
such Borrowing, that such Lender will not make available as and when required
hereunder to the Agent that Lender's Pro Rata Share of a
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Borrowing, the Agent may assume that each Lender has made such amount available
to the Agent in immediately available funds on the Funding Date. Furthermore,
the Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If any Lender has not transferred its full
Pro Rata Share to the Agent in immediately available funds and the Agent has
transferred corresponding amount to the Borrower on the Business Day following
such Funding Date that Lender shall make such amount available to the Agent,
together with interest at the Federal Funds Rate for that day. A notice by the
Agent submitted to any Lender with respect to amounts owing shall be conclusive,
absent manifest error. If each Lender's full Pro Rata Share is transferred to
the Agent as required, the amount transferred to the Agent shall constitute that
Lender's Revolving Loan for all purposes of this Agreement. If that amount is
not transferred to the Agent on the Business Day following the Funding Date, the
Agent will notify the Borrower of such failure to fund and, upon demand by the
Agent, the Borrower shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the Interest Rate applicable at the time
to the Revolving Loans comprising that particular Borrowing. The failure of any
Lender to make any Revolving Loan on any Funding Date (any such Lender, prior to
the cure of such failure, being hereinafter referred to as a "Defaulting
Lender") shall not relieve any other Lender of its obligation hereunder to make
a Revolving Loan on that Funding Date. No Lender shall be responsible for any
other Lender's failure to advance such other Lenders' Pro Rata Share of any
Borrowing.
(d) Retention of Defaulting Lender's Payments. The
Agent shall not be obligated to transfer to a Defaulting Lender any payments
made by Borrower to the Agent for the Defaulting Lender's benefit; nor shall a
Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts
payable to a Defaulting Lender shall instead be paid to or retained by the
Agent. In its discretion, the Agent may loan Borrower the amount of all such
payments received or retained by it for the account of such Defaulting Lender.
Any amounts so loaned to the Borrower shall bear interest at the rate applicable
to Base Rate Revolving Loans and for all other purposes of this Agreement shall
be treated as if they were Revolving Loans, provided, however, that for purposes
of voting or consenting to matters with respect to the Loan Documents and
determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a
"Lender". Until a Defaulting Lender cures its failure to fund its Pro Rata Share
of any Borrowing (i) such Defaulting Lender shall not be entitled to any portion
of the Unused Line Fee and (ii) the Unused Line Fee shall accrue in favor of the
Lenders which have funded their respective Pro Rata Shares of such requested
Borrowing and shall be allocated among such performing Lenders ratably based
upon their relative Commitments. This Section 12.15 shall remain effective with
respect to such Lender until such time as the Defaulting Lender shall no longer
be in default of any of its obligations under this Agreement. The terms of this
Section 12.15 shall not be construed to increase or otherwise affect the
Commitment of any Lender, or relieve or excuse the performance by the Borrower
of its duties and obligations hereunder.
(e) Removal of Defaulting Lender. At the Borrower's
request at any time prior to the occurrence of a Default or an Event of Default,
the Agent or an Eligible Assignee reasonably acceptable to the Agent and the
Borrower shall have the right (but not the obligation) to purchase from any
Defaulting Lender, and each Defaulting Lender shall, upon such request, sell and
assign to the Agent or such Eligible Assignee, all of the Defaulting Lender's
outstanding Commitments hereunder. Such sale shall be consummated promptly after
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Agent has arranged for a purchase by Agent or an Eligible Assignee pursuant to
an Assignment and Acceptance, and at a price equal to the outstanding principal
balance of the Defaulting Lender's Loans, plus accrued interest and fees,
without premium or discount.
12.16 Letters of Credit; Intra-Lender Issues.
(a) Notice of Letter of Credit Balance.
On each Settlement Date the Agent shall notify each Lender of
the issuance of all Letters of Credit since the prior Settlement Date.
(b) Participations in Letters of Credit.
(i) Purchase of Participations. Immediately
upon issuance of any Letter of Credit in accordance with Section 1.4(d)
(Issuance of Letters of Credit), each Lender shall be deemed to have irrevocably
and unconditionally purchased and received without recourse or warranty, an
undivided interest and participation equal to such Lender's Pro Rata Share of
the face amount of such Letter of Credit or the Credit Support provided through
the Agent to the Letter of Credit Issuer, if not the Bank, in connection with
the issuance of such Letter of Credit (including all obligations of the Borrower
with respect thereto, and any security therefor or guaranty pertaining thereto).
(ii) Sharing of Reimbursement Obligation
Payments. Whenever the Agent receives a payment from the Borrower on account of
reimbursement obligations in respect of a Letter of Credit or Credit Support as
to which the Agent has previously received for the account of the Letter of
Credit Issuer thereof payment from a Lender, the Agent shall promptly pay to
such Lender such Lender's Pro Rata Share of such payment from the Borrower. Each
such payment shall be made by the Agent on the next Settlement Date.
(iii) Documentation. Upon the request of any
Lender, the Agent shall furnish to such Lender copies of any Letter of Credit,
Credit Support for any Letter of Credit, reimbursement agreements executed in
connection therewith, applications for any Letter of Credit, and such other
documentation as may reasonably be requested by such Lender.
(iv) Obligations Irrevocable. The obligations
of each Lender to make payments to the Agent with respect to any Letter of
Credit or with respect to their participation therein or with respect to any
Credit Support for any Letter of Credit or with respect to the Revolving Loans
made as a result of a drawing under a Letter of Credit and the obligations of
the Borrower for whose account the Letter of Credit or Credit Support was issued
to make payments to the Agent, for the account of the Lenders, shall be
irrevocable and shall not be subject to any qualification or exception
whatsoever, including any of the following circumstances:
(A) any lack of validity or enforceability
of this Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against a
beneficiary named in a
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Letter of Credit or any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), any Lender, the
Agent, the issuer of such Letter of Credit, or any other Person, whether
in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Borrower or any other
Person and the beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other
document presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any
security for the performance or observance of any of the terms of any of
the Loan Documents;
(E) the occurrence of any Default or Event
of Default; or
(F) the failure of the Borrower to satisfy
the applicable conditions precedent set forth in ARTICLE 8.
(c) Recovery or Avoidance of Payments; Refund of
Payments In Error. In the event any payment by or on behalf of the Borrower
received by the Agent with respect to any Letter of Credit or Credit Support
provided for any Letter of Credit and distributed by the Agent to the Lenders on
account of their respective participations therein is thereafter set aside,
avoided or recovered from the Agent in connection with any receivership,
liquidation or bankruptcy proceeding, the Lenders shall, upon demand by the
Agent, pay to the Agent their respective Pro Rata Shares of such amount set
aside, avoided or recovered, together with interest at the rate required to be
paid by the Agent upon the amount required to be repaid by it. Unless the Agent
receives notice from the Borrower prior to the date on which any payment is due
to the Lenders that the Borrower will not make such payment in full as and when
required, the Agent may assume that the Borrower has made such payment in full
to the Agent on such date in immediately available funds and the Agent may (but
shall not be so required), in reliance upon such assumption, distribute to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower has not made such payment in full to the Agent,
each Lender shall repay to the Agent on demand such amount distributed to such
Lender, together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Lender until the date repaid.
(d) Indemnification by Lenders. To the extent not
reimbursed by the Borrower and without limiting the obligations of the Borrower
hereunder, the Lenders agree to indemnify the Letter of Credit Issuer ratably in
accordance with their respective Pro Rata Shares, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees) or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Letter of Credit Issuer in any way relating to or arising out of any Letter of
Credit or the transactions contemplated thereby or any action taken or omitted
by the Letter of Credit Issuer under any Letter of Credit or any
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Loan Document in connection therewith; provided that no Lender shall be liable
for any of the foregoing to the extent it arises from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Letter of Credit Issuer promptly
upon demand for its Pro Rata Share of any costs or expenses payable by the
Borrower to the Letter of Credit Issuer, to the extent that the Letter of Credit
Issuer is not promptly reimbursed for such costs and expenses by the Borrower.
The agreement contained in this Section 12.16 shall survive payment in full of
all other Obligations.
12.17 Concerning the Collateral and the Related Loan
Documents.
Each Lender authorizes and directs the Agent to enter into the
other Loan Documents, for the ratable benefit and obligation of the Agent and
the Lenders. Each Lender agrees that any action taken by the Agent or Required
Lenders, as applicable, in accordance with the terms of this Agreement or the
other Loan Documents, and the exercise by the Agent or the Required Lenders, as
applicable, of their respective powers set forth therein or herein, together
with such other powers that are reasonably incidental thereto, shall be binding
upon all of the Lenders. The Lenders acknowledge that the Revolving Loans, Term
Loans, Agent Advances, Non-Ratable Loans, Hedge Agreements, Bank Products and
all interest, fees and expenses hereunder constitute one Debt, secured pari
passu by all of the Collateral.
12.18 Field Audit and Examination Reports; Disclaimer by
Lenders.
By signing this Agreement, each Lender:
(a) is deemed to have requested that the Agent
furnish such Lender, promptly after it becomes available, a copy of each
field audit or examination report (each a "Report" and collectively,
"Reports") prepared by or on behalf of the Agent;
(b) expressly agrees and acknowledges that neither
the Bank nor the Agent (i) makes any representation or warranty as to
the accuracy of any Report, or (ii) shall be liable for any information
contained in any Report;
(c) expressly agrees and acknowledges that the
Reports are not comprehensive audits or examinations, that the Agent or
the Bank or other party performing any audit or examination will inspect
only specific information regarding the Borrower and will rely
significantly upon the Borrower's books and records, as well as on
representations of the Borrower's personnel;
(d) agrees to keep all Reports confidential and
strictly for its internal use, and not to distribute except to its
participants, or use any Report in any other manner; and
(e) without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to
hold the Agent and any such other Lender preparing a Report harmless
from any action the indemnifying Lender may take or conclusion the
indemnifying Lender may reach or draw from any Report in connection with
any loans or other credit accommodations that the
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indemnifying Lender has made or may make to the Borrower, or the
indemnifying Lender's participation in, or the indemnifying Lender's
purchase of, a loan or loans of the Borrower; and (ii) to pay and
protect, and indemnify, defend and hold the Agent and any such other
Lender preparing a Report harmless from and against, the claims,
actions, proceedings, damages, costs, expenses and other amounts
(including Attorney Costs) incurred by the Agent and any such other
Lender preparing a Report as the direct or indirect result of any third
parties who might obtain all or part of any Report through the
indemnifying Lender.
12.19 Relation Among Lenders.
The Lenders are not partners or co-venturers, and no Lender
shall be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Agent) authorized to act for, any other Lender.
ARTICLE 13
MISCELLANEOUS
13.1 No Waivers; Cumulative Remedies.
No failure by the Agent or any Lender to exercise any right,
remedy, or option under this Agreement or any present or future supplement
thereto, or in any other agreement between or among the Borrower and the Agent
and/or any Lender, or delay by the Agent or any Lender in exercising the same,
will operate as a waiver thereof. No waiver by the Agent or any Lender will be
effective unless it is in writing, and then only to the extent specifically
stated. No waiver by the Agent or the Lenders on any occasion shall affect or
diminish the Agent's and each Lender's rights thereafter to require strict
performance by the Borrower of any provision of this Agreement. The Agent and
the Lenders may proceed directly to collect the Obligations without any prior
recourse to the Collateral. The Agent's and each Lender's rights under this
Agreement will be cumulative and not exclusive of any other right or remedy
which the Agent or any Lender may have.
13.2 Severability.
The illegality or unenforceability of any provision of this
Agreement or any Loan Document or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
13.3 Governing Law; Choice of Forum; Service of Process.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS
PROVIDED THAT PERFECTION ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE
EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF
THE UCC) OF THE
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COMMONWEALTH OF VIRGINIA; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) CONSENT TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF VIRGINIA OR OF THE UNITED STATES OF
AMERICA LOCATED IN FAIRFAX COUNTY, VIRGINIA, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE BORROWER, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE FOREGOING: (i) THE
AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE
AGENT OR THE LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE
COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (ii) EACH OF THE PARTIES
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS.
(c) WAIVER OF SERVICE OF PROCESS. THE BORROWER
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO THE BORROWER AT ITS ADDRESS SET FORTH IN SECTION 13.8
(Notices) AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID.
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT OR THE LENDERS TO SERVE
LEGAL PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
13.4 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER, THE
LENDERS AND THE AGENT EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED
TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWER, THE
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LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION 13.4 AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
13.5 Survival of Representations and Warranties.
All of the Borrower's representations and warranties contained
in this Agreement shall survive the execution, delivery, and acceptance thereof
by the parties, notwithstanding any investigation by the Agent or the Lenders or
their respective agents.
13.6 Other Security and Guaranties.
The Agent, may, without notice or demand and without affecting
the Borrower's obligations hereunder, from time to time: (a) take from any
Person and hold collateral (other than the Collateral) for the payment of all or
any part of the Obligations and exchange, enforce or release such collateral or
any part thereof; and (b) accept and hold any endorsement or guaranty of payment
of all or any part of the Obligations and release or substitute any such
endorser or guarantor, or any Person who has given any Lien in any other
collateral as security for the payment of all or any part of the Obligations, or
any other Person in any way obligated to pay all or any part of the Obligations.
13.7 Fees and Expenses.
The Borrower agrees to pay to the Agent, for its benefit, on
demand, all costs and expenses that Agent pays or incurs in connection with the
negotiation, preparation, syndication, consummation, administration,
enforcement, and termination of this Agreement or any of the other Loan
Documents, including: (a) Attorney Costs; (b) costs and expenses (including
reasonable attorneys' and paralegals' fees and disbursements) for any amendment,
supplement, waiver, consent, or subsequent closing in connection with the Loan
Documents and the transactions contemplated thereby; (c) costs and expenses of
lien and title searches and title insurance; (d) taxes, fees and other charges
for recording the Mortgages, filing financing statements and continuations, and
other actions to perfect, protect, and continue the Agent's Liens (including
costs and expenses paid or incurred by the Agent in connection with the
consummation of Agreement); (e) sums paid or incurred to pay any amount or take
any action required of the Borrower under the Loan Documents that the Borrower
fails to pay or take; (f) costs of appraisals, inspections, and verifications of
the Collateral, including travel, lodging, and meals for inspections of the
Collateral and the Borrower's operations by the Agent plus the Agent's then
customary charge for field examinations and audits and the preparation of
reports thereof (such charge is currently $750 per day (or portion thereof) for
each Person retained or employed by the Agent with respect to each field
examination or audit); and (g) costs and
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expenses of forwarding loan proceeds, collecting checks and other items of
payment, and establishing and maintaining Payment Accounts and lock boxes, and
costs and expenses of preserving and protecting the Collateral. In addition, the
Borrower agrees to pay costs and expenses incurred by the Agent (including
Attorneys' Costs) to the Agent, for its benefit, on demand, and to the other
Lenders for their benefit, on demand, and all reasonable fees, expenses and
disbursements incurred by such other Lenders for one law firm retained by such
other Lenders, in each case, paid or incurred to obtain payment of the
Obligations, enforce the Agent's Liens, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of the Loan Documents, or to
defend any claims made or threatened against the Agent or any Lender arising out
of the transactions contemplated hereby (including preparations for and
consultations concerning any such matters). The foregoing shall not be construed
to limit any other provisions of the Loan Documents regarding costs and expenses
to be paid by the Borrower. All of the foregoing costs and expenses shall be
charged to the Borrower's Loan Account as Revolving Loans as described in
Section 3.7 (Payments as Revolving Loans).
13.8 Notices.
Except as otherwise provided herein, all notices, demands and
requests that any party is required or elects to give to any other shall be in
writing, or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including, but not limited to, delivery by overnight mail and courier service,
(b) four (4) days after it shall have been mailed by United States mail, first
class, certified or registered, with postage prepaid, or (c) in the case of
notice by such a telecommunications device, when properly transmitted, in each
case addressed to the party to be notified as follows:
If to the Agent or to the Bank:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Business Credit Account Executive
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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If to the Lenders:
Fleet Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration
Chevy Chase Bank, F.S.B.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Borrower:
▇▇▇ ▇. ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
or to such other address as each party may designate for itself by like notice.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall not adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
13.9 Waiver of Notices.
Unless otherwise expressly provided herein, the Borrower waives
presentment, and notice of demand or dishonor and protest as to any instrument,
notice of intent to accelerate the Obligations and notice of acceleration of the
Obligations, as well as any and all other notices to which it might otherwise be
entitled. No notice to or demand on the Borrower that the Agent or any Lender
may elect to give shall entitle the Borrower to any or further notice or demand
in the same, similar or other circumstances.
13.10 Binding Effect.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective representatives, successors, and assigns of the
parties hereto; provided, however, that no interest herein may be assigned by
the Borrower without prior written consent of the Agent and each Lender. The
rights and benefits of the Agent and the Lenders hereunder shall, if
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such Persons so agree, inure to any party acquiring any interest in the
Obligations or any part thereof.
13.11 Indemnity of the Agent and the Lenders by the Borrower.
(a) The Borrower agrees to defend, indemnify and
hold the Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, representatives, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time (including at any
time following repayment of the Loans and the termination, resignation or
replacement of the Agent or replacement of any Lender) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement,
any other Loan Document, or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting solely from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section 13.11
shall survive payment of all other Obligations.
(b) The Borrower agrees to indemnify, defend and
hold harmless the Agent and the Lenders from any loss or liability directly or
indirectly arising out of the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal or presence of a hazardous
substance relating to the Borrower's operations, business or property. This
indemnity will apply whether the hazardous substance is on, under or about the
Borrower's property or operations or property leased to the Borrower. The
indemnity includes but is not limited to Attorneys Costs. The indemnity extends
to the Agent and the Lenders, their parents, affiliates, subsidiaries and all of
their directors, officers, employees, agents, successors, attorneys and assigns.
"Hazardous substances" means any substance, material or waste that is or becomes
designated or regulated as "toxic," "hazardous," "pollutant," or "contaminant"
or a similar designation or regulation under any federal, state or local law
(whether under common law, statute, regulation or otherwise) or judicial or
administrative interpretation of such, including petroleum or natural gas. This
indemnity will survive repayment of all other Obligations.
13.12 Limitation of Liability.
NO CLAIM MAY BE MADE BY THE BORROWER, ANY LENDER OR OTHER PERSON
AGAINST THE AGENT, ANY LENDER, OR THE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR
RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
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ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND THE BORROWER AND EACH LENDER HEREBY WAIVE, RELEASE AND AGREE NOT
TO ▇▇▇ UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR
NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
13.13 Final Agreement.
This Agreement and the other Loan Documents are intended by the
Borrower, the Agent and the Lenders to be the final, complete, and exclusive
expression of the agreement between them. This Agreement supersedes any and all
prior oral or written agreements relating to the subject matter hereof except
for that certain "Fee Letter A" and "Fee Letter B", each dated as of March 7,
2001 between the Borrower and the Agent and "Fee Letter C" dated as of the
Closing Date between the Agent and Chevy Chase Bank, F.S.B. No modification,
rescission, waiver, release, or amendment of any provision of this Agreement or
any other Loan Document shall be made, except by a written agreement signed by
the Borrower and a duly authorized officer of each of the Agent and the
requisite Lenders.
13.14 Counterparts.
This Agreement may be executed in any number of counterparts,
and by the Agent, each Lender and the Borrower in separate counterparts, each of
which shall be an original, but all of which shall together constitute one and
the same agreement; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
13.15 Captions.
The captions contained in this Agreement are for convenience of
reference only, are without substantive meaning and should not be construed to
modify, enlarge, or restrict any provision.
13.16 Right of Setoff.
In addition to any rights and remedies of the Lenders provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender or any Affiliate of such Lender
to or for the credit or the account of the Borrower against any and all
Obligations owing to such Lender, now or hereafter existing, irrespective of
whether or not the Agent or such Lender shall have made demand under this
Agreement or any Loan Document and although such Obligations may be contingent
or unmatured. Each Lender agrees promptly to notify the Borrower and the Agent
after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE
ANY RIGHT OF SET-OFF, BANKER'S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR
PROPERTY OF THE
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BORROWER HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR WRITTEN UNANIMOUS
CONSENT OF THE LENDERS.
13.17 Confidentiality.
(a) The Borrower hereby consents that the Agent and
each Lender may issue and disseminate to the public general information
describing the credit accommodation entered into pursuant to this Agreement,
including the name and address of the Borrower and a general description of the
Borrower's business and may use the Borrower's name in advertising and other
promotional material.
(b) Each Lender severally agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" or "secret" by the Borrower and
provided to the Agent or such Lender by or on behalf of the Borrower, under this
Agreement or any other Loan Document, except to the extent that such information
(i) was or becomes generally available to the public other than as a result of
disclosure by the Agent or such Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided that such
source is not bound by a confidentiality agreement with the Borrower known to
the Agent or such Lender; provided, however, that the Agent and any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Agent or such Lender is subject or in
connection with an examination of the Agent or such Lender by any such
Governmental Authority; (B) pursuant to subpoena or other court process; (C)
when required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding (including, but not limited to, any bankruptcy
proceeding) to which the Agent, any Lender or their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to the Agent's or
such Lender's independent auditors, accountants, attorneys and other
professional advisors; (G) to any prospective Participant or Assignee under any
Assignment and Acceptance, actual or potential, provided that such prospective
Participant or Assignee agrees to keep such information confidential to the same
extent required of the Agent and the Lenders hereunder; (H) as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Borrower is party or is deemed party with the Agent
or such Lender, and (I) to its Affiliates.
13.18 Conflicts with Other Loan Documents.
Unless otherwise expressly provided in this Agreement (or in
another Loan Document by specific reference to the applicable provision
contained in this Agreement), if any provision contained in this Agreement
conflicts with any provision of any other Loan Document, the provision contained
in this Agreement shall govern and control.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
WITNESS OR ATTEST: ▇▇▇ ▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
WITNESS: BANK OF AMERICA, N.A., as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
WITNESS: BANK OF AMERICA, N.A., as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
WITNESS: FLEET CAPITAL CORPORATION, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WITNESS: CHEVY CHASE BANK, F.S.B., as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (SEAL)
------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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ANNEX A
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have the following
respective meanings (unless otherwise defined therein), and all section
references in the following definitions shall refer to sections of the
Agreement:
"ACAS" means American Capital Strategies, Ltd., a Delaware corporation,
and its successors and assigns.
"Accounts" means all of the Borrower's now owned or hereafter acquired
or arising accounts, as defined in the UCC, including any rights to payment for
the sale or lease of goods or rendition of services, whether or not they have
been earned by performance, Supporting Obligations, letter-of-credit rights and
letters of credit given by any Person with respect to any of the foregoing.
"Account Debtor" means each Person obligated in any way on or in
connection with an Account.
"ACH Transactions" means any cash management or related services
including the automatic clearing house transfer of funds by the Bank for the
account of the Borrower pursuant to agreement or overdrafts.
"Acquiring Person" means any Person who or which, together with all
Affiliates of such Person, shall acquire, directly or indirectly, the right to
vote, or dispose of, or "beneficial ownership" (as defined in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) of, more than fifty percent (50%) of the shares of the voting stock of
Borrower then outstanding.
"ACS Commitment" means the commitment letter dated March 7, 2001 issued
by ACAS to Parent, in connection with financing in the aggregate amount of
$30,000,000.
"Additional Guarantor" shall have the meaning given to such term in the
Guaranty of Payment Agreement.
"Additional Guarantor Joinder Supplement" shall have the meaning give
to such term in the Guaranty of Payment Agreement.
"Adjusted Net Earnings from Operations" means, with respect to any
fiscal period of the Borrower, the Borrower's net income (including
restructuring credits related to the RECRA Note) after provision for income
taxes for such fiscal period, as determined in accordance with GAAP and reported
on the Financial Statements for such period, excluding any and all of the
following included in such net income: (a) gain or loss arising from the sale of
any capital assets; (b) gain arising from any write-up in the book value of any
asset; (c) earnings of any
86
Person, substantially all the assets of which have been acquired by the Borrower
in any manner, to the extent realized by such other Person prior to the date of
acquisition; (d) earnings of any Person in which the Borrower has an ownership
interest unless (and only to the extent) such earnings shall actually have been
received by the Borrower in the form of cash distributions; (e) earnings of any
Person to which assets of the Borrower shall have been sold, transferred or
disposed of, or into which the Borrower shall have been merged, or which has
been a party with the Borrower to any consolidation or other form of
reorganization, prior to the date of such transaction; (f) gain arising from the
acquisition of debt or equity securities of the Borrower or from cancellation or
forgiveness of Debt; and (g) gain arising from extraordinary items, as
determined in accordance with GAAP, or from any other non-recurring transaction.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person or which owns, directly or indirectly, ten percent (10%) or
more of the outstanding equity interest of such Person. A Person shall be deemed
to control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of the other Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agent" means the Bank, solely in its capacity as agent for the
Lenders, and any successor agent.
"Agent Advances" has the meaning specified in Section 1.2(i) (Agent
Advances).
"Agent's Liens" means the Liens in the Collateral granted to the Agent,
for the benefit of the Lenders, Bank, and Agent pursuant to this Agreement and
the other Loan Documents.
"Agent-Related Persons" means the Agent, together with its Affiliates,
and the officers, directors, employees, counsel, representatives, agents and
attorneys-in-fact of the Agent and such Affiliates.
"Aggregate Revolver Outstandings" means, at any date of determination:
the sum of (a) the unpaid balance of Revolving Loans, (b) the aggregate amount
of Pending Revolving Loans, (c) one hundred percent (100%) of the aggregate
undrawn face amount of all outstanding Letters of Credit, and (d) the aggregate
amount of any unpaid reimbursement obligations in respect of Letters of Credit.
"Agreement" means the Credit Agreement to which this Annex A is
attached, as from time to time amended, modified or restated.
"Anniversary Date" means each anniversary of the Closing Date.
"Applicable Margin" means
(a) with respect to Base Rate Revolving Loans and all
other Obligations (other than Base Rate Term Loans and LIBOR Rate
Loans), 1.0%;
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(b) with respect to Base Rate Term Loans, 1.0%;
(c) with respect to LIBOR Revolving Loans, 335 basis
points; and
(d) with respect to LIBOR Term Loans, 335 basis points.
The Applicable Margins shall be adjusted (up or down) prospectively on
a quarterly basis as determined by the Borrower's consolidated financial
performance, commencing with the first day of the first calendar month that
occurs more than five (5) Business Days after delivery of the Borrower's
quarterly Financial Statements to Lenders for the fiscal quarter ending
September 30, 2001. Adjustments in Applicable Margins shall be determined by
reference to the following grid:
--------------------------------------------------------------------------------------------------------------------
Pricing Ratio Applicable Margin for Revolving Applicable Margin for
------------- ------------------------------- ---------------------
Loans Term Loans
----- ----------
--------------------------------------------------------------------------------------------------------------------
Less than or equal to 3.0 to 1.0 215 basis points per annum 215 basis points per annum
--------------------------------------------------------------------------------------------------------------------
Greater than 3.0 and less than or equal to 245 basis points per annum 245 basis points per annum
3.5
--------------------------------------------------------------------------------------------------------------------
Greater than 3.5 and less than or equal to 275 basis points per annum 275 basis points per annum
4.0
--------------------------------------------------------------------------------------------------------------------
Greater than 4.0 and less than or equal to 305 basis points per annum 305 basis points per annum
4.5
--------------------------------------------------------------------------------------------------------------------
Greater than 4.5 to 1.0 335 basis points per annum 335 basis points per annum
--------------------------------------------------------------------------------------------------------------------
All adjustments in the Applicable Margins after September 30, 2001
shall be implemented quarterly on a prospective basis, for each calendar month
commencing at least five (5) Business Days after the date of delivery to the
Lenders of quarterly unaudited or annual audited (as applicable) Financial
Statements evidencing the need for an adjustment. Concurrently with the delivery
of those Financial Statements, the Borrower shall deliver to the Agent and the
Lenders a certificate, signed by its chief financial officer, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to timely deliver such Financial Statements shall,
in addition to any other remedy provided for in this Agreement, result in an
increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an increase is
not required. If a Default or Event of Default has occurred at the time any
reduction in the Applicable Margins is to be implemented, no reduction may occur
until the first day of the first calendar month following the date on which such
Default or Event of Default is waived or cured.
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"Assigned Contracts" means, collectively, all of the Borrower's rights
and remedies under, and all moneys and claims for money due or to become due to
the Borrower under those contracts set forth on Schedule 1.1, and any other
material contracts, and any and all amendments, supplements, extensions, and
renewals thereof including all rights and claims of the Borrower now or
hereafter existing: (i) under any insurance, indemnities, warranties, and
guarantees provided for or arising out of or in connection with any of the
foregoing agreements; (ii) for any damages arising out of or for breach or
default under or in connection with any of the foregoing contracts ; (iii) to
all other amounts from time to time paid or payable under or in connection with
any of the foregoing agreements; or (iv) to exercise or enforce any and all
covenants, remedies, powers and privileges thereunder.
"Assignee" has the meaning specified in Section 11.2(a) (Assignments;
Participations).
"Assignment and Acceptance" has the meaning specified in Section
11.2(a) (Assignments; Participations).
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other counsel engaged by the Agent, the
reasonably allocated costs and expenses of internal legal services of the Agent.
"Availability" means, at any time (a) the lesser of (i) the Maximum
Revolver Amount or (ii) the Borrowing Base, minus (b) Reserves other than
Reserves deducted in the calculation of the Borrowing Base, minus (c) in each
case, the Aggregate Revolver Outstandings.
"Bank" means Bank of America, N.A., a national banking association, or
any successor entity thereto.
"Bank Products" means any one or more of the following types of
services or facilities extended to the Borrower by the Bank or any affiliate of
the Bank in reliance on the Bank's agreement to indemnify such affiliate: (a)
credit cards; (b) ACH Transactions; (c) cash management, including controlled
disbursement services; and (d) Hedge Agreements.
"Bank Product Reserves" means all reserves that the Agent from time to
time establishes in its reasonable discretion for the Bank Products then
provided or outstanding.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.).
"Base Rate" means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by the Bank in Charlotte, North
Carolina as its "prime rate" (the "prime rate" being a rate set by the Bank
based upon various factors including the Bank's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate). Any change in the prime rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of such
change. Each Interest Rate based upon the Base Rate shall be adjusted
simultaneously with any change in the Base Rate.
"Base Rate Loans" means, collectively, the Base Rate Revolving Loans
and the Base Rate Term Loans.
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"Base Rate Revolving Loan" means a Revolving Loan during any period in
which it bears interest based on the Base Rate.
"Base Rate Term Loan" means any portion of a Term Loan during any
period in which such portion bears interest based on the Base Rate.
"▇▇▇▇▇▇▇▇ in Excess of Costs" means invoices, or portions of invoices,
for sums that exceed the hard costs associated with a contract or represent work
that has not been performed.
"Blocked Account Agreement" means an agreement among the Borrower, the
Agent and a Clearing Bank, in form and substance reasonably satisfactory to the
Agent, concerning the collection of payments that represent the proceeds of
Accounts or of any other Collateral.
"Borrowing" means a borrowing hereunder consisting of Revolving Loans
or Term Loans made on the same day by the Lenders to the Borrower or by Bank in
the case of a Borrowing funded by Non-Ratable Loans or by the Agent in the case
of a Borrowing consisting of an Agent Advance, or the issuance of Letters of
Credit hereunder.
"Borrowing Base" means, at any time, an amount equal to (a) the sum of
(A) ninety percent (90%) of the Net Amount of Eligible Accounts derived from
Federal Government Contracts, (B) ninety percent (90%) of the Net Amount of
Eligible Accounts derived from Government Contracts, (C) eighty five percent
(85%) of the Net Amount of Eligible Accounts other than those derived from
Federal Government Contracts or Government Contracts approved by the Agent and
(D) the lesser of (1) fifty percent (50%) of the Borrower's Unbilled Receivables
that otherwise qualify as Eligible Accounts (but which shall be billed within
thirty (30) days and which shall be limited to costs incurred as of the date of
the applicable Borrowing Base) or (2) Ten Million Dollars ($10,000,000); minus
(b) Reserves from time to time established by the Agent in its reasonable credit
judgment.
"Borrowing Base Certificate" means a certificate by a Responsible
Officer of the Borrower, substantially in the form of Exhibit B (or another form
acceptable to the Agent) setting forth the calculation of the Borrowing Base,
including a calculation of each component thereof, all in such detail as shall
be reasonably satisfactory to the Agent. All calculations of the Borrowing Base
in connection with the preparation of any Borrowing Base Certificate shall
originally be made by the Borrower and certified to the Agent; provided, that
the Agent shall have the right to review and adjust, in the exercise of its
reasonable credit judgment, any such calculation (a) to reflect its reasonable
estimate of declines in value of any of the Collateral described therein, and
(b) to the extent that such calculation is not in accordance with this
Agreement.
"Business Day" means (a) any day that is not a Saturday, Sunday, or a
day on which banks in the Commonwealth of Virginia or Charlotte, North Carolina
are required or permitted to be closed, and (b) with respect to all notices,
determinations, fundings and payments in connection with the LIBOR Rate or LIBOR
Rate Loans, any day that is a Business Day pursuant to clause (a) above and that
is also a day on which trading in Dollars is carried on by and between banks in
the London interbank market.
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90
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditures" means all payments due (whether or not paid
during any fiscal period) in respect of the cost of any fixed asset or
improvement, or replacement, substitution, or addition thereto, which has a
useful life of more than one year, including, without limitation, those costs
arising in connection with the direct or indirect acquisition of such asset by
way of increased product or service charges or in connection with a Capital
Lease.
"Capital Lease" means any lease of property by the Borrower which, in
accordance with GAAP, should be reflected as a capital lease on the balance
sheet of the Borrower.
"Change of Control" shall mean the occurrence of any of the following:
(a) any sale or other disposition of assets of any type or
nature having fair market value of eighty percent (80%) or more of the
fair market value of all such assets of the Borrower;
(b) any consolidation, merger or recapitalization of the
Parent in which the Parent is not the continuing or surviving
corporation or pursuant to which the Parent's voting stock would be
converted into cash, securities and/or other property, other than any
such transaction in which holders of the Parent's voting stock
immediately before the transaction, in the aggregate, have (or upon
conversion, exercise or similar action would have) more than fifty
percent (50%) of the voting power of all issued and outstanding
securities of the surviving corporation after the transaction;
(c) any liquidation or dissolution of the Parent (but not
any Subsidiaries);
(d) any "person" (as such term is used in sections 13(d)
and 14(d) of the Exchange Act) (other than ACAS, an Affiliate of ACAS
or other persons who are stockholders of the Parent on the Closing Date
and other than an employee stock ownership or stock bonus plan
maintained by the Purchaser or a Subsidiary) becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Parent that permit the person to name
or elect a majority of the members of the Board of Directors of the
Parent, or otherwise becomes entitled to name or elect a majority of
the members of the Board of Directors of the Parent; provided that a
Change of Control shall not be deemed to occur under this subsection
(d) as a result of a restructuring or other transaction in which the
Parent becomes a controlled subsidiary of another entity (the
"controlling entity") and stockholders of the Parent who, immediately
prior to the transaction, own securities of the Parent that permit them
to name or elect a majority of the members of the Board of Directors of
the Parent will beneficially own, immediately after the transaction,
directly or indirectly, shares of the
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controlling entity that permit them to name or elect a majority of the
members of the board of directors of the controlling entity, or such
stockholders otherwise are entitled to name or elect a majority of the
members of the board of directors of the controlling entity; and
(e) the initial public offer of securities by Parent other
than an offering of securities for an employee benefit plan on SEC Form
S-8 or a successor form.
"Chattel Paper" means all of the Borrower's now owned or hereafter
acquired chattel paper, as defined in the UCC, including electronic chattel
paper.
"Clearing Bank" means the Bank or any other banking institution with
whom a Payment Account has been established pursuant to a Blocked Account
Agreement.
"Closing Date" means the date of this Agreement.
"Closing Fee" has the meaning specified in Section 2.4 (Closing Fee).
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all of the Borrower's real and personal property and
all other assets of any Person from time to time subject to Agent's Liens
securing payment or performance of the Obligations.
"Collateral Disclosure List" has the meaning described in Section 8.1
(Conditions Precedent).
"Commitment" means, at any time with respect to a Lender, the principal
amount set forth beside such Lender's name under the heading "Commitment" on
Schedule 1.2 attached to the Agreement or on the signature page of the
Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 11.2 (Assignments;
Participations), as such Commitment may be adjusted from time to time in
accordance with the provisions of Section 11.2 (Assignments; Participations),
and "Commitments" means, collectively, the aggregate amount of the commitments
of all of the Lenders.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos in any form or condition, polychlorinated biphenyls
("PCBs"), or any constituent of any such substance or waste.
"Continuation/Conversion Date" means the date on which a Loan is
converted into or continued as a LIBOR Rate Loan.
"Credit Support" has the meaning specified in Section 1.4(a) (Letters
of Credit).
"Debt" means, without duplication, all liabilities, obligations and
indebtedness of the Borrower to any Person, of any kind or nature, now or
hereafter owing, arising, due or payable,
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howsoever evidenced, created, incurred, acquired or owing, whether primary,
secondary, direct, contingent, fixed or otherwise, consisting of indebtedness
for borrowed money or the deferred purchase price of property, excluding debt
secured in the ordinary course of business with respect to customer deposits and
trade payables, but including (a) all Obligations; (b) all obligations and
liabilities of any Person secured by any Lien on the Borrower's property, even
though the Borrower shall not have assumed or become liable for the payment
thereof; provided, however, that all such obligations and liabilities which are
limited in recourse to such property shall be included in Debt only to the
extent of the book value of such property as would be shown on a balance sheet
of the Borrower prepared in accordance with GAAP; (c) all obligations or
liabilities created or arising under any Capital Lease or conditional sale or
other title retention agreement with respect to property used or acquired by the
Borrower, even if the rights and remedies of the lessor, seller or lender
thereunder are limited to repossession of such property; provided, however, that
all such obligations and liabilities which are limited in recourse to such
property shall be included in Debt only to the extent of the book value of such
property as would be shown on a balance sheet of the Borrower prepared in
accordance with GAAP; (d) all obligations and liabilities under Guaranties and
(e) the present value (discounted at the Base Rate) of lease payments due under
synthetic leases.
"Default" means any event or circumstance that, with the giving of
notice, the lapse of time, or both, would (if not cured, waived, or otherwise
remedied during such time) constitute an Event of Default.
"Default Rate" means a fluctuating per annum interest rate at all times
equal to the sum of (a) the applicable Interest Rate hereunder plus (b) two
percent (2%) per annum. Each Default Rate shall be adjusted simultaneously with
any change in the applicable Interest Rate. In addition, the Default Rate shall
result in an increase in the Letter of Credit Fee by two (2) percentage points
per annum.
"Defaulting Lender" has the meaning specified in Section 12.15(c)
(Defaulting Lenders).
"Designated Account" has the meaning specified in Section 1.2(c)
(Reliance Upon Authority).
"Distribution" means, in respect of any corporation: (a) the payment or
making of any dividend or other distribution of property in respect of capital
stock (or any options or warrants for, or other rights with respect to, such
stock) of such corporation, other than distributions in capital stock (or any
options or warrants for such stock) of the same class; or (b) the redemption or
other acquisition by such corporation of any capital stock (or any options or
warrants for such stock) of such corporation.
"Documents" means all documents as such term is defined in the UCC,
including bills of lading, warehouse receipts or other documents of title, now
owned or hereafter acquired by the Borrower.
"DOL" means the United States Department of Labor or any successor
department or agency.
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"Dollar" and "$" means dollars in the lawful currency of the United
States. Unless otherwise specified, all payments under the Agreements shall be
made in Dollars.
"EBITDA" means, with respect to any fiscal period of the Borrower,
Adjusted Net Earnings from Operations, plus, to the extent deducted in the
determination of Adjusted Net Earnings from Operations for that fiscal period,
interest expenses, Federal, state, local and foreign income taxes, depreciation
and amortization.
"Eligible Accounts" means the Accounts that the Agent in the exercise
of its reasonable commercial discretion determines to be Eligible Accounts.
Without limiting the discretion of the Agent to establish other criteria of
ineligibility, Eligible Accounts shall not, unless the Agent in its sole
discretion elects, include any Account:
(a) with respect to which more than ninety (90) days have
elapsed since the date of the original invoice therefor or which is
more than sixty (60) days past due, which shall not be later than
thirty (30) days after the invoice date;
(b) with respect to which any of the representations,
warranties, covenants, and agreements contained in the Security
Agreement are incorrect or have been breached;
(c) with respect to which Account (or any other Account
due from such Account Debtor), in whole or in part, a check, promissory
note, draft, trade acceptance or other instrument for the payment of
money has been received, presented for payment and returned uncollected
for any reason;
(d) which represents a progress billing (as hereinafter
defined) or as to which the Borrower has extended the time for payment
without the consent of the Agent; for the purposes hereof, "progress
billing" means any invoice for goods sold or leased or services
rendered under a contract or agreement pursuant to which the Account
Debtor's obligation to pay such invoice is conditioned upon the
Borrower's completion of any further performance under the contract or
agreement;
(e) with respect to which any one or more of the following
events has occurred to the Account Debtor on such Account: death or
judicial declaration of incompetency of an Account Debtor who is an
individual; the filing by or against the Account Debtor of a request or
petition for liquidation, reorganization, arrangement, adjustment of
debts, adjudication as a bankrupt, winding-up, or other relief under
the bankruptcy, insolvency, or similar laws of the United States, any
state or territory thereof, or any foreign jurisdiction, now or
hereafter in effect; the making of any general assignment by the
Account Debtor for the benefit of creditors; the appointment of a
receiver or trustee for the Account Debtor or for any of the assets of
the Account Debtor, including, without limitation, the appointment of
or taking possession by a "custodian," as defined in the Federal
Bankruptcy Code; the institution by or against the Account Debtor of
any other type of insolvency proceeding (under the bankruptcy laws of
the United
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States or otherwise) or of any formal or informal proceeding for the
dissolution or liquidation of, settlement of claims against, or winding
up of affairs of, the Account Debtor; the sale, assignment, or transfer
of all or any material part of the assets of the Account Debtor; the
nonpayment generally by the Account Debtor of its debts as they become
due; or the cessation of the business of the Account Debtor as a going
concern;
(f) if fifty percent (50%) or more of the aggregate Dollar
amount of outstanding Accounts owed at such time by the Account Debtor
thereon is classified as ineligible under clause (a) above;
(g) owed by an Account Debtor which: (i) does not maintain
its chief executive office in the United States of America or Canada;
or (ii) is not organized under the laws of the United States of America
or Canada or any state or province thereof; or (iii) is the government
of any foreign country or sovereign state, or of any state, province,
municipality, or other political subdivision thereof, or of any
department, agency, public corporation, or other instrumentality
thereof; except to the extent that such Account is secured or payable
by a letter of credit satisfactory to the Agent in its discretion;
(h) owed by an Account Debtor which is an Affiliate or
employee of the Borrower;
(i) except as provided in clause (k) below, with respect
to which either the perfection, enforceability, or validity of the
Agent's Liens in such Account, or the Agent's right or ability to
obtain direct payment to the Agent of the proceeds of such Account, is
governed by any federal, state, or local statutory requirements other
than those of the UCC;
(j) owed by an Account Debtor to which the Borrower or any
of its Subsidiaries, is indebted in any way, or which is subject to any
right of setoff or recoupment by the Account Debtor, unless the Account
Debtor has entered into an agreement acceptable to the Agent to waive
setoff rights; or if the Account Debtor thereon has disputed liability
or made any claim with respect to any other Account due from such
Account Debtor; but in each such case only to the extent of such
indebtedness, setoff, recoupment, dispute, or claim;
(k) owed by the government of the United States of
America, or any department, agency, public corporation, or other
instrumentality thereof, unless the Federal Assignment of Claims Act of
1940, as amended (31 U.S.C. Section 3727 et seq.), and any other steps
necessary to perfect the Agent's Liens therein, have been complied with
to the Agent's satisfaction with respect to such Account;
(l) owed by any state, municipality, or other political
subdivision of the United States of America, or any department, agency,
public corporation, or other instrumentality thereof and as to which
the Agent determines that its Lien therein is not or cannot be
perfected;
▇-▇▇
▇▇
(▇) which represents a sale on a ▇▇▇▇-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or other
repurchase or return basis;
(n) which is evidenced by a promissory note or other
instrument or by chattel paper;
(o) if the Agent believes, in the exercise of its
reasonable judgment, that the prospect of collection of such Account is
impaired or that the Account may not be paid by reason of the Account
Debtor's financial inability to pay;
(p) with respect to which the Account Debtor is located in
any state requiring the filing of a Notice of Business Activities
Report or similar report in order to permit the Borrower to seek
judicial enforcement in such State of payment of such Account, unless
such Borrower has qualified to do business in such state or has filed a
Notice of Business Activities Report or equivalent report for the then
current year;
(q) which arises out of a sale not made in the ordinary
course of the Borrower's business;
(r) owed by an Account Debtor which is obligated to the
Borrower respecting Accounts the aggregate unpaid balance of which
exceeds fifteen percent (15%) of the aggregate unpaid balance of all
Accounts owed to the Borrower at such time by all of the Borrower's
Account Debtors, but only to the extent of such excess;
(t) which is not subject to a first priority and perfected
security interest in favor of the Agent for the benefit of the Lenders;
(u) for which a bond or other undertaking by a guarantor
or surety has been or is required to be obtained, supporting the
performance of the Borrower or any other obligor in respect of any of
the Borrower's agreements with the Account Debtor; and
(v) which constitutes a retainage or close out billing
relating to a completed contract.
If any Account at any time ceases to be an Eligible Account, then such
Account shall promptly be excluded from the calculation of Eligible Accounts.
"Eligible Assignee" means (a) a commercial bank, commercial finance
company or other asset based lender, having total assets in excess of
$1,000,000,000; (b) any Lender listed on the signature page of this Agreement;
(c) any Affiliate of any Lender; and (d) if an Event of Default has occurred,
any Person reasonably acceptable to the Required Lenders.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for a Release or
injury to the environment.
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"Environmental Compliance Reserve" means any reserve which the Agent
establishes in its reasonable discretion after prior written notice to the
Borrower from time to time for amounts that are reasonably likely to be expended
by the Borrower in order for the Borrower and its operations and property (a) to
comply with any notice from a Governmental Authority asserting material
non-compliance with Environmental Laws, or (b) to correct any such material
non-compliance identified in a report delivered to the Agent and the Lenders
pursuant to Section 7.7 (Environmental Laws).
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, licenses, authorizations and permits of,
and agreements with, any Governmental Authority, in each case relating to
environmental, health, safety and land use matters.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"Equipment" means all of the Borrower's now owned and hereafter
acquired machinery, equipment, furniture, furnishings, fixtures, and other
tangible personal property, including embedded software, motor vehicles with
respect to which a certificate of title has been issued, aircraft, dies, tools,
jigs, molds and office equipment, as well as all of such types of property
leased by the Borrower and all of the Borrower's rights and interests with
respect thereto under such leases (including, without limitation, options to
purchase); together with all present and future additions and accessions
thereto, replacements therefor, component and auxiliary parts and supplies used
or to be used in connection therewith, and all substitutes for any of the
foregoing, and all manuals, drawings, instructions, warranties and rights with
respect thereto; wherever any of the foregoing is located.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Event" means any one of the following events: (a) a Reportable
Event with respect to a Pension Plan, (b) a withdrawal by the Borrower or any
Subsidiary from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA, (c) a complete or partial withdrawal (within the
meaning of Section 4203 or 4205 of ERISA)by the Borrower or any Subsidiary from
a Multi-employer Plan or notification that a Multi-employer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), (d) the filing of
a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or to have a trustee
appointed to administer such Plan, (e) the occurrence of an event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multi-employer Plan, or (f) the imposition of any liability
under Title IV of ERISA, other than for PBGC
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premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any Subsidiary.
"Event of Default" has the meaning specified in Section 9.1 (Events of
Default).
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Bank on such
day on such transactions as determined by the Agent.
"Federal Government" means each and every department, agency or
instrumentality of the United States.
"Federal Government Contracts" means any contract with the Federal
Government.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"Fee Letters" mean the Fee Letter A and Fee Letter B, each dated March
7, 2001 by and between the Bank and the Borrower.
"Financial Statements" means, according to the context in which it is
used, the financial statements referred to in Section 5.2 (Financial
Information) and Section 6.6 (Financial Statements and Projections) or any other
financial statements required to be given to the Lenders pursuant to this
Agreement.
"Fiscal Year" means the Borrower's fiscal year for financial accounting
purposes. The current Fiscal Year of the Borrower will end on December 31, 2001.
"Fixed Assets" means the Equipment and Real Estate of the Borrower.
"Fixed Charge Coverage Ratio" means, with respect to any fiscal period
of Borrower, the ratio of (a) EBITDA minus non-financed Capital Expenditures to
(b) cash interest expense, scheduled principal payments of Debt, and Federal,
state, local and foreign income taxes, excluding deferred taxes.
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"Funded Debt to EBITDA Ratio" means the ratio of (a) Funded Debt to (b)
EBITDA.
"Funding Date" means the date on which a Borrowing occurs.
"Funded Debt" means the aggregate of Senior Debt and all other Debt
that accrues interest.
"GAAP" means generally accepted accounting principles and practices set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
Closing Date.
"General Intangibles" means all of the Borrower's now owned or
hereafter acquired general intangibles, choses in action and causes of action
and all other intangible personal property of the Borrower of every kind and
nature (other than Accounts), including, without limitation, all contract
rights, payment intangibles, Proprietary Rights, corporate or other business
records, inventions, designs, blueprints, plans, specifications, patents, patent
applications, trademarks, service marks, trade names, trade secrets, goodwill,
copyrights, computer software, customer lists, registrations, licenses,
franchises, tax refund claims, any funds which may become due to the Borrower in
connection with the termination of any Plan or other employee benefit plan or
any rights thereto and any other amounts payable to the Borrower from any Plan
or other employee benefit plan, rights and claims against carriers and shippers,
rights to indemnification, business interruption insurance and proceeds thereof,
property, casualty or any similar type of insurance and any proceeds thereof,
proceeds of insurance covering the lives of key employees on which the Borrower
is beneficiary, rights to receive dividends, distributions, cash, Instruments
and other property in respect of or in exchange for pledged equity interests or
Investment Property and any letter of credit, guarantee, claim, security
interest or other security held by or granted to the Borrower.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Government Contracts" means any contract with any department, agency
or instrumentality of any state in the United States or any political
subdivision thereof.
"Guarantor" and "Guarantors" shall have the meanings given to such
terms in the Guaranty of Payment Agreement.
"Guaranty" means, with respect to any Person, all obligations of such
Person which in any manner directly or indirectly guarantee or assure, or in
effect guarantee or assure, the payment or performance of any indebtedness,
dividend or other obligations of any other Person (the "guaranteed
obligations"), or assure or in effect assure the holder of the guaranteed
obligations against loss in respect thereof, including any such obligations
incurred through an
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agreement, contingent or otherwise: (a) to purchase the guaranteed obligations
or any property constituting security therefor; (b) to advance or supply funds
for the purchase or payment of the guaranteed obligations or to maintain a
working capital or other balance sheet condition; or (c) to lease property or to
purchase any debt or equity securities or other property or services.
"Guaranty of Payment Agreement" means the Guaranty of Payment Agreement
of even date herewith from Weston ACAS Holding, Inc., a Delaware corporation,
▇▇▇ ▇. ▇▇▇▇▇▇ (Delaware), Inc., a Delaware corporation, ▇▇▇ ▇. ▇▇▇▇▇▇ (IPR),
Inc., a Delaware corporation, Moorstein, Inc., a Delaware corporation, ▇▇▇ ▇.
▇▇▇▇▇▇ of New York, Inc., a New York corporation, ▇▇▇ ▇. ▇▇▇▇▇▇ of Missouri,
Inc., a Delaware corporation, ▇▇▇ ▇. ▇▇▇▇▇▇ Inc. of Michigan, a Michigan
corporation, ▇▇▇ ▇. ▇▇▇▇▇▇, P.E., P.C., a District of Columbia professional
corporation, Weston International Holdings, Inc., a Delaware corporation, of New
Jersey, Inc., a Delaware corporation, RFW Properties I, Inc., a Delaware
corporation, Trans-Thermal Systems, Inc., a Delaware corporation, Weston
International, Inc., a Texas corporation, Weston Interactive, Inc., a Delaware
corporation, Weston Environmental Metrics, Inc., a Pennsylvania corporation, RFW
Carteret I LLC, a Maryland limited liability company, RFW Birmingham I LLC, a
Maryland limited liability company, and RFW Bessemer I LLC, a Maryland limited
liability company in favor of the Agent.
"Hedge Agreement" means any and all transactions, agreements or
documents now existing or hereafter entered into, which provides for an interest
rate, credit, commodity or equity swap, cap, floor, collar, forward foreign
exchange transaction, currency swap, cross currency rate swap, currency option,
or any combination of, or option with respect to, these or similar transactions,
for the purpose of hedging the Borrower's exposure to fluctuations in interest
or exchange rates, loan, credit exchange, security or currency valuations or
commodity prices.
"Instruments" means all instruments as such term is defined in the UCC,
now owned or hereafter acquired by the Borrower.
"Interest Period" means, as to any LIBOR Rate Loan, the period
commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which the Loan is converted into or continued as a LIBOR Rate Loan, and
ending on the date one, two, or three months thereafter as selected by the
Borrower in its Notice of Borrowing, in the form attached hereto as Exhibit D,
or Notice of Continuation/Conversion, in the form attached hereto as Exhibit E,
provided that:
(a) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be extended to
the following Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
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(c) no Interest Period shall extend beyond the Stated
Termination Date.
"Interest Rate" means each or any of the interest rates, including the
Default Rate, set forth in Section 2.1 (Interest).
"Investment Property" means all of the Borrower's right title and
interest in and to any and all: (a) securities whether certificated or
uncertificated; (b) securities entitlements; (c) securities accounts; (d)
commodity contracts; or (e) commodity accounts.
"IRS" means the Internal Revenue Service and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Latest Projections" means: (a) on the Closing Date and thereafter
until the Agent receives new projections pursuant to Section 5.2(f) (Financial
Information), the projections of the Borrower's financial condition, results of
operations, and cash flows, for the period commencing on April 1, 2001 and
ending on December 31, 2006 and delivered to the Agent prior to the Closing
Date; and (b) thereafter, the projections most recently received by the Agent
pursuant to Section 5.2(f) (Financial Information).
"Lender" and "Lenders" have the meanings specified in the introductory
paragraph hereof and shall include the Agent to the extent of any Agent Advance
outstanding and the Bank to the extent of any Non-Ratable Loan outstanding;
provided that no such Agent Advance or Non-Ratable Loan shall be taken into
account in determining any Lender's Pro Rata Share.
"Letter of Credit" has the meaning specified in Section 1.4(a) (Letters
of Credit).
"Letter of Credit Cash Collateral Account" has the meaning specified in
Section 1.4(g) (Supporting Letter of Credit).
"Letter of Credit Fee" has the meaning specified in Section 2.6 (Letter
of Credit Fee).
"Letter of Credit Issuer" means the Bank, any affiliate of the Bank or
any other financial institution that issues any Letter of Credit pursuant to
this Agreement.
"Letter-of-credit right" means a right to payment or performance under
a letter of credit, whether or not the beneficiary has demanded or is at the
time entitled to demand payment or performance.
"Letter of Credit Subfacility" means $7,500,000.
"LIBOR Interest Payment Date" means, with respect to a LIBOR Rate Loan,
the Termination Date and the last day of each Interest Period applicable to such
Loan or, with respect to each Interest Period of greater than one (1) month in
duration, the last day of each month of such Interest Period and the last day of
such Interest Period.
"LIBOR Rate" means, for any Interest Period, with respect to LIBOR Rate
Loans, the rate of interest per annum determined pursuant to the following
formula:
▇-▇▇
▇▇▇
▇▇▇▇▇ Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means the rate per annum appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in 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. If for any reason
such rate is not available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in 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. If for any reason none of the
foregoing rates is available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum determined by Agent as the rate of
interest at which dollar deposits in the approximate amount of the
LIBOR Rate Loan comprising part of such Borrowing would be offered by
the Bank's London Branch to major banks in the offshore dollar market
at their request at or about 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.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day
applicable to member banks under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Offshore Rate for each
outstanding LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIBOR Rate Loans" means, collectively, the LIBOR Revolving Loans and
the LIBOR Term Loans.
"LIBOR Revolving Loan" means a Revolving Loan during any period in
which it bears interest based on the LIBOR Rate.
"LIBOR Term Loan" means any portion of a Term Loan during any period in
which such portion bears interest based on the LIBOR Rate.
"Lien" means: (a) any interest in property securing an obligation owed
to, or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute, or contract, and including a
security interest, charge, claim, or lien arising from a mortgage, deed of
trust, encumbrance, pledge, hypothecation, assignment, deposit arrangement,
agreement, security agreement, conditional sale or trust receipt or a lease,
consignment or
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bailment for security purposes; (b) to the extent not included under clause (a),
any reservation, exception, encroachment, easement, right-of-way, covenant,
condition, restriction, lease or other title exception or encumbrance affecting
property; and (c) any contingent or other agreement to provide any of the
foregoing.
"Loan Account" means the loan account of the Borrower, which account
shall be maintained by the Agent.
"Loan Documents" means this Agreement, the Term Loan Notes, the
Security Agreement, the Mortgage, the Parent Guaranty, the Subsidiary Guaranty,
and any other agreements, instruments, and documents heretofore, now or
hereafter evidencing, securing, guaranteeing or otherwise relating to the
Obligations, the Collateral, or any other aspect of the transactions
contemplated by this Agreement.
"Loan Payment Account" means the Borrower's account
#______N/A__________ with the Agent and from which the Agent is authorized to
deduct any payment due under the Loan Documents on or after the date the payment
is due.
"Loans" means, collectively, all loans and advances provided for in
ARTICLE 1 (Loans and Letters of Credit).
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower, the Collateral and/or,
taken as a whole, the Guarantors of the Obligations; (b) a material impairment
of the ability of the Borrower or any Affiliate of Parent, the Borrower and/or
any Subsidiary of the Borrower to perform under any Loan Document to which it is
a party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against the Borrower, any guarantor and/or any other
obligor of any Loan Document to which it is a party.
"Maximum Revolver Amount" means $40,000,000.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
March 9, 2001 by and among Parent, Weston Acquisition Corporation and the
Borrower.
"Merger Agreement Documents" means collectively the Merger Agreement
and any and all other agreements, documents or instruments (together with any
and all amendments, modifications, and supplements thereto, restatements
thereof, and substitutes therefor) previously, now or hereafter executed and
delivered by the Borrower, the Parent, or any other Person in connection with
the transaction contemplated by the Merger Agreement.
"Mortgage" means and includes any and all of the mortgages, deeds of
trust, deeds to secure debt, assignments and other instruments executed and
delivered by the Borrower to or for the benefit of the Agent by which the Agent,
on behalf of the Lenders, acquires a Lien on the
▇-▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ or a collateral assignment of the Borrower's interest under leases
of Real Estate, and all amendments, modifications and supplements thereto.
"Multi-employer Plan" means a "multi-employer plan" as defined in
Section 4001(a)(3) of ERISA that is or was at any time during the current year
or the immediately preceding six (6) years contributed to by the Borrower or any
Subsidiary.
"Net Amount of Eligible Accounts" means, at any time, the gross amount
of Eligible Accounts less sales, excise or similar taxes, and less returns,
discounts, claims, credits, allowances offsets, deductions, counterclaims,
disputes and other defenses of any nature at any time issued, owing, granted,
outstanding, available or claimed.
"Net ▇▇▇▇▇▇▇▇ in Excess of Costs" means ▇▇▇▇▇▇▇▇ in Excess of Costs as
calculated by the Borrower, excluding invoices that have been deemed by Agent
ineligible for any reason.
"Net Proceeds" has the meaning specified in Section 3.4(b) (Prepayments
of the Term Loans).
"Net Worth" means the Borrower's consolidated shareholders' equity,
defined in accordance with GAAP.
"Non-Ratable Loan" and "Non-Ratable Loans" have the meanings specified
in Section 1.2(h) (Making of Non-Ratable Loans).
"Notes" means Revolving Loan Notes and Term Loan Notes.
"Notice of Borrowing" has the meaning specified in Section 1.2(b)
(Procedure for Borrowing).
"Notice of Continuation/Conversion" has the meaning specified in
Section 2.2(b) (Continuation and Conversion Elections).
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by the Borrower to
the Agent and/or any Lender, arising under or pursuant to this Agreement or any
of the other Loan Documents, whether or not evidenced by any note, or other
instrument or document, whether arising from an extension of credit, opening of
a letter of credit, acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect, absolute or contingent, due or to become due,
primary or secondary, as principal or guarantor, and including all principal,
interest, charges, expenses, fees, attorneys' fees, filing fees and any other
sums chargeable to the Borrower hereunder or under any of the other Loan
Documents. "Obligations" includes, without limitation, (a) all debts,
liabilities, and obligations now or hereafter arising from or in connection with
the Letters of Credit and (b) all debts, liabilities and obligations now or
hereafter arising from or in connection with Bank Products.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from
any payment made hereunder
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or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
"Parent" means Weston ACAS Holdings, Inc. a Delaware corporation.
"Parent Guaranty" means that certain guaranty of payment for the
benefit of the Lenders ratably and the Agent dated the date hereof to the Agent,
as agent, from the Parent, as the same may from time to time be amended,
restated, supplemented or otherwise modified.
"Participant" means any Person who shall have been granted the right by
any Lender to participate in the financing provided by such Lender under this
Agreement, and who shall have entered into a participation agreement in form and
substance satisfactory to such Lender.
"Payment Account" means each bank account established pursuant to the
Security Agreement, to which the proceeds of Accounts and other Collateral are
deposited or credited, and which is maintained in the name of the Agent or the
Borrower, as the Agent may determine, on terms acceptable to the Agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to the functions thereof.
"Pending Revolving Loans" means, at any time, the aggregate principal
amount of all Revolving Loans requested in any Notice of Borrowing received by
the Agent that have not yet been advanced.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA), other than a Multi-Employer Plan subject to Title IV of ERISA which the
Borrower sponsors, maintains, or to which it makes, is making, or is obligated
to make contributions.
"Permitted Liens" means:
(a) Liens for taxes not delinquent or statutory Liens for
taxes in an amount not to exceed $100,000 provided that the payment of
such taxes which are due and payable is being contested in good faith
and by appropriate proceedings diligently pursued and as to which
adequate financial reserves have been established on Borrower's books
and records and a stay of enforcement of any such Lien is in effect;
(b) the Agent's Liens;
(c) Liens consisting of deposits made in the ordinary
course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance, social
security and other similar laws, or to secure the performance of bids,
tenders or contracts (other than for the repayment of Debt) or to
secure indemnity, performance or other similar bonds for the
performance of bids, tenders or contracts (other than for the
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repayment of Debt) or to secure statutory obligations (other than liens
arising under ERISA or Environmental Liens) or surety or appeal bonds,
or to secure indemnity, performance or other similar bonds;
(d) Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons,
provided that if any such Lien arises from the nonpayment of such
claims or demand when due, such claims or demands do not exceed
$100,000 in the aggregate;
(e) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way,
covenants running with the land, and other similar title exceptions or
encumbrances affecting any Real Estate; provided that they do not in
the aggregate materially detract from the value of the Real Estate or
materially interfere with its use in the ordinary conduct of the
Borrower's business; and
(f) Liens arising from judgments and attachments in
connection with court proceedings provided that the attachment or
enforcement of such Liens would not result in an Event of Default
hereunder and such Liens are being contested in good faith by
appropriate proceedings, adequate reserves have been set aside and no
material Property is subject to a material risk of loss or forfeiture
and the claims in respect of such Liens are fully covered by insurance
(subject to ordinary and customary deductibles) and a stay of execution
pending appeal or proceeding for review is in effect.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, Governmental Authority, or any other entity.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA), other than a Multi-Employer Plan which the Borrower sponsors or
maintains or to which the Borrower makes, is making, or is obligated to make
contributions and includes any Pension Plan.
"Post-Expiration Date Letter of Credit" and "Post-Expiration Date
Letters of Credit" have the meanings described in Section 1.4(g) (Supporting
Letter of Credit).
"Pricing Ratio" means the Funded Debt to EBITDA Ratio.
"Proprietary Rights" means all of the Borrower's now owned and
hereafter arising or acquired: licenses, franchises, permits, patents, patent
rights, copyrights, works which are the subject matter of copyrights,
trademarks, service marks, trade names, trade styles, patent, trademark and
service ▇▇▇▇ applications, and all licenses and rights related to any of the
foregoing, including those patents, trademarks, service marks, trade names and
copyrights set forth on Schedule 6.12 hereto, and all other rights under any of
the foregoing, all extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing, and all rights to ▇▇▇ for past,
present and future infringement of any of the foregoing.
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"Pro Rata Share" means, with respect to a Lender, a fraction (expressed
as a percentage), the numerator of which is the amount of such Lender's
Commitment and the denominator of which is the sum of the amounts of all of the
Lenders' Commitments, or if no Commitments are outstanding, a fraction
(expressed as a percentage), the numerator of which is the amount of Obligations
owed to such Lender and the denominator of which is the aggregate amount of the
Obligations owed to the Lenders, in each case giving effect to a Lender's
participation in Non-Ratable Loans and Agent Advances.
"Real Estate" means all of the Borrower's now or hereafter owned or
leased estates in real property, including, without limitation, all fees,
leaseholds and future interests, together with all of the Borrower's now or
hereafter owned or leased interests in the improvements thereon, the fixtures
attached thereto and the easements appurtenant thereto.
"Real Estate Equity" has the meaning described in Section 7.31 (Net
▇▇▇▇▇▇▇▇ in Excess of Costs).
"Release" means a release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration of a
Contaminant into the indoor or outdoor environment or into or out of any Real
Estate or other property, including the movement of Contaminants through or in
the air, soil, surface water, groundwater or Real Estate or other property.
"Reportable Event" means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"Required Lenders" means at any time Lenders whose Pro Rata Shares
aggregate more than fifty five percent (55%).
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Reserves" means reserves that limit the availability of credit
hereunder, consisting of reserves against Availability or Eligible Accounts,
established by Agent from time to time in Agent's reasonable credit judgment.
Without limiting the generality of the foregoing, the following reserves shall
be deemed to be a reasonable exercise of Agent's credit judgment: (a) Bank
Product Reserves, (b) a reserve for accrued, unpaid interest on the Obligations,
(c) reserves for rent at leased locations subject to statutory or contractual
landlord liens, (d) Environmental Compliance Reserves, (e) Net ▇▇▇▇▇▇▇▇ in
Excess of Costs, (f) reserves for any amounts over thirty (30) days past due
related to unpaid sub-contractor payables with possible mechanics' lien rights,
except for amounts in good faith dispute, (g) customs charges, (h) dilution, and
(i) warehousemen's or bailees' charges.
"Responsible Officer" means the chief executive officer or the
president of the Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants and the preparation of the Borrowing Base Certificate, the
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chief financial officer or the treasurer of the Borrower, or any other officer
having substantially the same authority and responsibility.
"Restricted Investment" means, as to the Borrower, any acquisition of
property by the Borrower in exchange for cash or other property, whether in the
form of an acquisition of stock, debt, or other indebtedness or obligation, or
the purchase or acquisition of any other property, or a loan, advance, capital
contribution, or subscription, except the following: (a) acquisitions of
Equipment to be used in the business of the Borrower so long as the acquisition
costs thereof constitute Capital Expenditures permitted hereunder; (b)
acquisitions of current assets acquired in the ordinary course of business of
the Borrower; (c) direct obligations of the United States of America, or any
agency thereof, or obligations guaranteed by the United States of America,
provided that such obligations mature within one year from the date of
acquisition thereof; (d) acquisitions of certificates of deposit maturing within
one year from the date of acquisition, bankers' acceptances, Eurodollar bank
deposits, or overnight bank deposits, in each case issued by, created by, or
with a bank or trust company organized under the laws of the United States of
America or any state thereof having capital and surplus aggregating at least
$100,000,000; (e) acquisitions of commercial paper given a rating of "A2" or
better by Standard & Poor's Corporation or "P2" or better by ▇▇▇▇▇'▇ Investors
Service, Inc. and maturing not more than 90 days from the date of creation
thereof; and (f) Hedge Agreements.
"Revolving Loans" has the meaning specified in Section 1.2 (Revolving
Loans) and includes each Agent Advance and Non-Ratable Loan.
"Revolving Loan Note" and "Revolving Loan Notes" have the meanings
specified in Section 1.2(a)(ii) (Revolving Loans).
"Security Agreement" means the Security Agreement of even date herewith
among Borrower, others and Agent for the benefit of Agent and other Lenders.
"Senior Debt" means all unsubordinated indebtedness, liabilities and
obligations of the Borrower of every kind and nature whatsoever, whether now
existing or hereafter arising or created at any time, including, without
limitation, the Obligations and, further including, without limitation, such
indebtedness, liabilities and obligations of the Borrower (a) which are direct,
indirect, contingent, primary, secondary, alone, jointly with others, acquired
directly or by assignment, due, to become due, unsecured, secured, future
advances, incurred or assumed, (b) which relate to or arise from the issuance of
letters of credit, overdrafts, other credit facilities (including, but not
limited to, facilities for Capital Leases), or guaranties, indemnifications or
other similar agreements in favor of third parties made by the Agent, the Bank
or the Lenders at the request or for the benefit of the Borrower, (c) which are
claims of subrogation, indemnification, reimbursement or contribution against
the Borrower or any other Person relating in any manner to obligations of the
Borrower or the Collateral, (d) which are claims of whatever nature and whenever
arising on account of the avoidance of payments or other transfers in Insolvency
Proceedings or otherwise, or (e) that are claims (including, without limitation,
claims arising or accruing after the commencement of Insolvency Proceedings by
or against the Borrower or any assets of the Borrower, whether or not such
claims are allowed) for principal, interest, expense payments, liquidation
costs, and attorneys' fees and expenses, all of the foregoing whether arising
under contract, by tort, at law, in equity or otherwise.
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"Senior Debt to EBITDA Ratio" means the ratio of Senior Debt to EBITDA.
"Settlement" and "Settlement Date" have the meanings specified in
Section 12.15(a)(ii) (Settlement).
"Solvent" means, when used with respect to any Person, that at the time
of determination:
(a) the assets of such Person, at a fair valuation, are in
excess of the total amount of its debts (including contingent
liabilities); and
(b) the present fair saleable value of its assets is
greater than its probable liability on its existing debts as such debts
become absolute and matured; and
(c) it is then able and expects to be able to pay its
debts (including contingent debts and other commitments) as they
mature; and
(d) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the amount of
any contingent liability shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Stated Termination Date" means May 31, 2006.
"Subordinated Debt" means that certain Indebtedness for Borrowed Money
of the Borrower in favor of American Capital Financial Services, Inc. Agent. a
corporation organized and existing under the laws of State of Delaware in a face
principal amount of Twenty Seven Million Dollars ($27,000,000).
"Subordinated Debt Loan Documents" means any and all promissory notes,
agreements, documents or instruments now or at any time evidencing, securing,
guarantying or otherwise executed and delivered in connection with the
Subordinated Debt, as the same may from time to time be amended, restated,
supplemented or modified.
"Subordinate Lender" means ACAS, a Delaware corporation, its successors
and assigns.
"Subordination Agreement" means that certain Subordination agreement by
and among the Subordinate Lender, the Borrower and the Agent, as the same may be
from time to time amended, restated, supplemented or modified.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50%) of the voting stock or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a
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109
"Subsidiary" refer to a Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain guaranty of payment for the
benefit of the Lenders ratably and the Agent dated the date hereof to the Agent,
as agent, from each Subsidiary of the Borrower, as the same may from time to
time be amended, restated, supplemented or otherwise modified.
"Supporting Obligations" means all supporting obligations as such term
is defined in the UCC.
"Tangible Net Worth" means as to the Borrower at any date of
determination thereof, the sum at such time of: the Net Worth less the total of
(a) all assets which would be classified as intangible assets under GAAP
consistently applied, (b) leasehold improvements incurred subsequent to the
Closing Date, (c) applicable reserves, allowances and other similar properly
deductible items under GAAP as interpreted by Agent in its sole discretion to
the extent such reserves, allowances and other similar properly deductible items
have not been previously deducted by the Agent in the calculation of Net Worth,
(d) any revaluation or other write-up in book value of assets subsequent to the
date of the estimated opening balance sheet that are recommended by
PriceWaterhouseCoopers and delivered to the Agent by the Borrower not later than
August 15, 2001, and (e) the amount of all loans and advances to, or investments
in, any Person, excluding cash equivalents and deposit accounts maintained by
the Borrower with any financial institution.
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, such taxes (including
income taxes or franchise taxes) as are imposed on or measured by the Agent's or
each Lender's net income in any the jurisdiction (whether federal, state or
local and including any political subdivision thereof) under the laws of which
such Lender or the Agent, as the case may be, is organized or maintains a
lending office.
"Term Loan" and "Term Loans" have the meanings specified in Section
1.3(a) (Term Loans).
"Term Loan Note" and "Term Loan Notes" have the meanings specified in
Section 1.3(c) (Term Loans).
"Termination Date" means the earliest to occur of (i) the Stated
Termination Date, (ii) the date the Total Facility is terminated either by the
Borrower pursuant to Section 3.2 (Termination of Facility) or by the Required
Lenders pursuant to Section 9.2 (Remedies), and (iii) the date this Agreement is
otherwise terminated for any reason whatsoever pursuant to the terms of this
Agreement.
"Total Facility" has the meaning specified in Section 1.1 (Total
Facility).
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"UCC" means the Uniform Commercial Code, as in effect from time to
time, of the Commonwealth of Virginia or of any other state the laws of that are
required as a result thereof to be applied in connection with the issue of
perfection of security interests.
"Unbilled Receivables" means Accounts which otherwise qualify as
Eligible Receivables which will be billed within thirty (30) days, and which are
not used to offset any reserve for ▇▇▇▇▇▇▇▇ in Excess of Costs.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"Unused Letter of Credit Subfacility" means an amount equal to
$7,500,000 minus the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit plus, without duplication, (b) the aggregate unpaid
reimbursement obligations with respect to all Letters of Credit.
"▇▇▇▇▇▇ Springs Settlement" means the final award granted to the
Borrower from the appeal of a contracting officer's final decision in a dispute
between the Borrower and the United States Government which arose out of thermal
remediation work the Borrower performed for the U.S. Army Corps of Engineers
(USACE) at the ▇▇▇▇▇▇ Springs Ordnance Works in St. ▇▇▇▇▇▇▇, MO.
Accounting Terms. Any accounting term used in the Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations in the
Agreement shall be computed, unless otherwise specifically provided therein, in
accordance with GAAP as consistently applied and using the same method for
inventory valuation as used in the preparation of the Financial Statements.
Interpretive Provisions.
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and
similar words refer to the Agreement as a whole and not to any particular
provision of the Agreement; and Subsection, Section, Schedule and Exhibit
references are to the Agreement unless otherwise specified.
(c) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(d) The term "including" is not limiting and means
"including without limitation."
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(e) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to but excluding" and the word
"through" means "to and including."
(f) The word "or" is not exclusive.
(g) Unless otherwise expressly provided herein,
(A) references to agreements (including the Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and (B)
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(h) The captions and headings of the Agreement and
other Loan Documents are for convenience of reference only and shall not affect
the interpretation of the Agreement.
(i) The Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms.
(j) For purposes of Section 9.1 (Events of
Default), a breach of a financial covenant contained in Section 7.22 (Capital
Expenditures) through Section 7.27 (Minimum Availability), inclusive, shall be
deemed to have occurred as of any date of determination thereof by the Agent or
as of the last day of any specified measuring period, regardless of when the
Financial Statements reflecting such breach are delivered to the Agent.
(k) The Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by counsel to the Agent,
the Borrower and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the Agent merely
because of the Agent's or Lenders' involvement in their preparation.
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EXHIBIT A-1
FORM OF REVOLVING LOAN NOTE
113
EXHIBIT A-2
FORM OF TERM LOAN NOTE
114
EXHIBIT B
FORM OF BORROWING BASE CERTIFICATE
115
EXHIBIT C
FINANCIAL STATEMENTS
116
EXHIBIT D
NOTICE OF BORROWING
Date: ______________, 200_
To: Bank of America, N.A. as Agent for the Lenders who are parties to the
Credit Agreement dated as of June __, 2001 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement") among
▇▇▇ ▇. ▇▇▇▇▇▇, Inc., certain Lenders which are signatories thereto and
Bank of America, N.A., as Agent
Ladies and Gentlemen:
The undersigned, ▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (the "Borrower"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the Borrowing specified
below:
1. The Business Day of the proposed Borrowing is
____________ , 200_.
2. The aggregate amount of the proposed Borrowing is
$___________.
3. The Borrowing is to be comprised of $ _________ of
Base Rate and $________ of LIBOR Rate Loans.
4. The duration of the Interest Period for the LIBOR Rate
Loans, if any, included in the Borrowing shall be
_____ months.
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 representations and warranties of the
Borrower contained in the Credit Agreement are true and correct as though made
on and as of such date;
(b) No Default or Event of Default has occurred,
or would result from such proposed Borrowing; and
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(c) The proposed Borrowing will not cause the
aggregate principal amount of all outstanding Revolving Loans plus the aggregate
amount available for drawing under all outstanding Letters of Credit, to exceed
the Borrowing Base or the combined Commitments of the Lenders.
▇▇▇ ▇. ▇▇▇▇▇▇, INC.
By:
---------------------------------
Title:
---------------------------------
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EXHIBIT E
NOTICE OF CONTINUATION/CONVERSION
Date: __________, 200_
To: Bank of America, N.A. as Agent for the Lenders to the Credit Agreement
dated as of June __, 2001 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement") among ▇▇▇ ▇. ▇▇▇▇▇▇, Inc.,
certain Lenders which are signatories thereto and Bank of America,
N.A., as Agent
Ladies and Gentlemen:
The undersigned, ▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (the "Borrower"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the conversion/continuation
of the Loans specified herein, that:
1. The Continuation/Conversion Date is _________, 200_.
2. The aggregate amount of the Loans to be
converted/continued is $___________.
3. The Loans are to be converted into/continued as LIBOR
Rate/Base Rate Loans.
4. The duration of the Interest Period for the LIBOR Rate
Loans included in the conversion/continuation shall
be _________ months.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed Continuation/Conversion
Date, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The representations and warranties
of the Borrower contained in the Credit Agreement are true and correct
as though made on and as of such date;
(b) Default or Event of Default has
occurred, or would result from such proposed conversion/continuation;
and
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(c) The proposed conversion-continuation will not
cause the aggregate principal amount of all outstanding Revolving Loans plus the
aggregate amount available for drawing under all outstanding Letters of Credit
to exceed the Borrowing Base or the combined Commitments of the Lenders.
▇▇▇ ▇. ▇▇▇▇▇▇, INC.
By:
--------------------------------
Title:
--------------------------------
2
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EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of ____________________, 200_ is made between
______________________________ (the "Assignor") and __________________________
(the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated
as of _____________, 200_ (as amended, amended and restated, modified,
supplemented or renewed, the "Credit Agreement") among ▇▇▇ ▇. ▇▇▇▇▇▇, Inc., a
Pennsylvania corporation (the "Borrower"), the several financial institutions
from time to time party thereto (including the Assignor, the "Lenders"), and
Bank of America, N. A., as agent for the Lenders (the "Agent"). Any terms
defined in the Credit Agreement and not defined in this Assignment and
Acceptance are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Loans (the "Committed Loans") to the Borrower in an
aggregate amount not to exceed $__________ (the "Commitment");
WHEREAS, the Assignor has made Committed Loans in the aggregate
principal amount of $__________ to the Borrower
WHEREAS, the Assignor has acquired a participation in its Pro Rata
Share of the Lenders' liabilities under Letters of Credit in an aggregate
principal amount of $____________ (the "L/C Obligations")/no Letters of Credit
are outstanding under the Credit Agreement; and
WHEREAS, the Assignor wishes to assign to the Assignee part of the/all
rights and obligations of the Assignor under the Credit Agreement in respect of
its Commitment, together with a corresponding portion of each of its outstanding
Committed Loans and L/C Obligations, in an amount equal to $__________ (the
"Assigned Amount") on the terms and subject to the conditions set forth herein
and the Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this
Assignment and Acceptance, (i) the Assignor hereby sells, transfers and assigns
to the Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes
from the Assignor, without recourse and without representation or warranty
(except as provided in this Assignment and Acceptance) __% (the "Assignee's
Percentage Share") of (A) the Commitment, the Committed Loans and the L/C
121
Obligations of the Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Credit Agreement and the Loan Documents.
(b) With effect on and after the Effective Date
(as defined in Section 5 (Effective Date; Notices)), the Assignee shall be a
party to the Credit Agreement and succeed to all of the rights and be obligated
to perform all of the obligations of a Lender under the Credit Agreement,
including the requirements concerning confidentiality and the payment of
indemnification, with a Commitment in an amount equal to the Assigned Amount.
The Assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender. It is the intent of the parties hereto that the
Commitment of the Assignor shall, as of the Effective Date, be reduced by an
amount equal to the Assigned Amount and the Assignor shall relinquish its rights
and be released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee; provided, however, the
Assignor shall not relinquish its rights under Sections 13.12 and 13.13 of the
Credit Agreement to the extent such rights relate to the time prior to the
Effective Date.
(c) After giving effect to the assignment and
assumption set forth herein, on the Effective Date the Assignee's Commitment
will be $__________.
(d) After giving effect to the assignment and
assumption set forth herein, on the Effective Date the Assignor's Commitment
will be $__________.
2. Payments.
(a) As consideration for the sale, assignment and
transfer contemplated in Section 1 (Assignment and Acceptance), the Assignee
shall pay to the Assignor on the Effective Date in immediately available funds
an amount equal to $__________, representing the Assignee's Pro Rata Share of
the principal amount of all Committed Loans.
(b) The Assignee further agrees to pay to the
Agent a processing fee in the amount specified in Section 11.2(a) of the Credit
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Commitment, and Committed Loans and L/C Obligations shall be
for the account of the Assignor. Any interest, fees and other payments accrued
on and after the Effective Date with respect to the Assigned Amount shall be for
the account of the Assignee. Each of the Assignor and the Assignee agrees that
it will hold in trust for the other party any interest, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding sentence and pay to the other party any such amounts which it may
receive promptly upon receipt.
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122
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements of the Borrower, and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Assignment and Acceptance; and (b)
agrees that it will, independently and without reliance upon the Assignor, the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the
effective date for this Assignment and Acceptance shall be __________, 200_ (the
"Effective Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be
executed and delivered by the Assignor and the Assignee;
(ii) the consent of the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the
Assignee shall have been duly obtained and shall be in full force and
effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Assignment and Acceptance;
(iv) the Assignee shall have complied with Section
11.2 of the Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b)
(Payments) and in Section 11.2(a) of the Credit Agreement shall have
been paid to the Agent; and
(b) Promptly following the execution of this
Assignment and Acceptance, the Assignor shall deliver to the Borrower and the
Agent for acknowledgment by the Agent, a Notice of Assignment in the form
attached hereto as Schedule 1.
6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT
(a) The Assignee hereby appoints and authorizes
the Assignor to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Agent by the Lenders
pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as Agent under the Credit
Agreement.
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7. Withholding Tax.
The Assignee (a) represents and warrants to the Lender, the Agent and
the Borrower that under applicable law and treaties no tax will be required to
be withheld by the Lender with respect to any payments to be made to the
Assignee hereunder, (b) agrees to furnish (if it is organized under the laws of
any jurisdiction other than the United States or any State thereof) to the Agent
and the Borrower prior to the time that the Agent or Borrower is required to
make any payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form W-8ECI or U.S. Internal
Revenue Service Form W-8BEN (wherein the Assignee claims entitlement to the
benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms W-8ECI or W-8BEN upon the expiration of any previously delivered form
or comparable statements in accordance with applicable U.S. law and regulations
and amendments thereto, duly executed and completed by the Assignee, and (c)
agrees to comply with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i)
it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any Lien or other adverse
claim; (ii) it is duly organized and existing and it has the full power and
authority to take, and has taken, all action necessary to execute and deliver
this Assignment and Acceptance and any other documents required or permitted to
be executed or delivered by it in connection with this Assignment and Acceptance
and to fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance, and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in connection
with, and assumes no responsibility with respect to, the solvency, financial
condition or statements of the Borrower, or the performance or observance by the
Borrower, of any of its respective obligations under the Credit Agreement or any
other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i)
it is duly organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents
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124
required or permitted to be executed or delivered by it in connection with this
Assignment and Acceptance, and to fulfill its obligations hereunder; (ii) no
notices to, or consents, authorizations or approvals of, any Person are required
(other than any already given or obtained) for its due execution, delivery and
performance of this Assignment and Acceptance; and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further action by,
or notice to, or filing with, any Person is required of it for such execution,
delivery or performance; (iii) this Assignment and Acceptance has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the Assignee, enforceable against the Assignee in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Borrower or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made
without any set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay
its own costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed
in any number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF __________
NOTE: CONFIRM CHOICE OF LAW. The Assignor and the Assignee each irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court sitting
in _____________ over any suit, action or proceeding arising out of or relating
to this Assignment and Acceptance and irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such
_________ State or Federal court. Each party to this Assignment and
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125
Acceptance hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
ASSIGNOR
By:
------------------------------
Title:
------------------------------
Address:
------------------------------
ASSIGNEE
By:
------------------------------
Title:
------------------------------
Address:
------------------------------
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SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 200_
Bank of America, N.A
----------------------------
----------------------------
Attn:
-------------------------------
Re: Name and Address of Borrower
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of June __, 2001 (as amended,
amended and restated, modified, supplemented or renewed from time to time the
"Credit Agreement") among ▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (the "Borrower"), the Lenders
referred to therein and Bank of America, N. A., as agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement are used herein as therein
defined.
1. We hereby give you notice of, and request your
consent to, the assignment by __________________ (the "Assignor") to
_______________ (the "Assignee") of _____% of the right, title and interest of
the Assignor in and to the Credit Agreement (including the right, title and
interest of the Assignor in and to the Commitments of the Assignor, all
outstanding Loans made by the Assignor and the Assignor's participation in the
Letters of Credit pursuant to the Assignment and Acceptance Agreement attached
hereto (the "Assignment and Acceptance"). We understand and agree that the
Assignor's Commitment, as of __________, 200 , is $ ___________, the aggregate
amount of its outstanding Loans is $_____________, and its participation in L/C
Obligations is $_____________.
2. The Assignee agrees that, upon receiving the
consent of the Agent and, if applicable, the Borrower to such assignment, the
Assignee will be bound by the terms of the Credit Agreement as fully and to the
same extent as if the Assignee were the Lender originally holding such interest
in the Credit Agreement.
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3. The following administrative details apply to
the Assignee:
(A) Notice Address:
Assignee name:
---------------------------
Address:
-------
-------
-------
Attention:
-------
Telephone: (___)
---------------------------------
Telecopier: (___)
--------------------------------
Telex (Answerback):
------------------------------
(B) Payment Instructions:
Account No.:
-----------------------------
At:
-----------------------------
-------
-------
Reference:
----------------------------
Attention:
----------------------------
4. You are entitled to rely upon the
representations, warranties and covenants of each of the Assignor and Assignee
contained in the Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
NAME OF ASSIGNOR
By:
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Title:
-----------------------------------
NAME OF ASSIGNEE
By:
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Title:
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2
128
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
Bank of America, N. A.
as Agent
By:
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Title:
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3
129
SCHEDULE 1.1
ASSIGNED CONTRACTS
Parties Title Date
------- ----- ----
130
SCHEDULE 1.2
COMMITMENTS
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Lender Revolving Loan Term Loan Commitment Total Commitment Pro Rata Share
------ -------------- -------------------- ---------------- --------------
Commitment (5 decimals)
---------- ------------
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Bank of America, N.A. $17,551,020 $3,948,,980 $21,500,000 43.87775%
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Fleet Capital
Corporation $16,326,531 $3,673,469 $20,000,000 40.81632%
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Chevy Chase Bank, F.S.B. $6,122,449 $1,377,551 $7,500,000 15.30612%
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