EXHIBIT 4.1
AMENDED AND RESTATED
CREDIT FACILITIES
AND
REIMBURSEMENT AGREEMENT
by and among
REPUBLIC INDUSTRIES, INC., and
REPUBLIC RESOURCES COMPANY,
as Borrowers,
NATIONSBANK, N.A.,
as Administrative Agent,
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC,
as Lead Arranger and Book Manager,
THE CHASE MANHATTAN BANK,
CITICORP USA, INC.,
as Co-Arrangers,
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA,
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
CIBC INC.,
CREDIT SUISSE FIRST BOSTON,
THE FIRST NATIONAL BANK OF CHICAGO,
FIRST UNION NATIONAL BANK,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
PNC BANK, N.A.,
as Co-Agents,
NATIONSBANK, N.A.,
BANK OF AMERICA NT & SA,
THE CHASE MANHATTAN BANK,
CITICORP USA, INC.,
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA,
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
CIBC INC.,
CREDIT SUISSE FIRST BOSTON,
THE FIRST NATIONAL BANK OF CHICAGO,
FIRST UNION NATIONAL BANK,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
PNC BANK, N.A.,
BANK OF MONTREAL,
CREDIT AGRICOLE INDOSUEZ,
THE BANK OF NEW YORK,
COMMERZBANK AKTIENGESELLSCHAFT, ATLANTA AGENCY,
BANCA MONTE DEI PASCHI DI SIENA SpA,
THE SUMITOMO BANK, LIMITED,
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
MERCANTILE BANK N.A.,
NATIONAL WESTMINSTER BANK PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Lenders
March 12, 1999
TABLE OF CONTENTS
Page
ARTICLE I Definitions
1.01 Amendment and Restatement............................................................................2
1.02 Definitions..........................................................................................2
1.03 Use of Defined Terms................................................................................22
1.04 Cross References....................................................................................22
1.05 Accounting and Financial Determinations.............................................................23
1.06 General Provisions Relating to Definitions..........................................................23
ARTICLE II The Loans
2.01 Commitments; Joint and Several Liability............................................................24
2.02 Competitive Bid Loans...............................................................................27
2.03 Payment of Interest.................................................................................32
2.04 Payment of Principal................................................................................33
2.05 Non-Conforming Payments.............................................................................33
2.06 Borrowers' Accounts.................................................................................34
2.07 Notes...............................................................................................34
2.08 Pro Rata Payments...................................................................................34
2.09 Reductions..........................................................................................35
2.10 Increase and Decrease in Amounts....................................................................35
2.11 Conversions and Elections of Subsequent Interest Periods............................................35
2.12 Fees................................................................................................36
2.13 Deficiency Advances.................................................................................36
2.14 Use of Proceeds.....................................................................................36
2.15 Swing Line..........................................................................................37
ARTICLE III Letters of Credit
3.01 Letters of Credit...................................................................................39
3.02 Reimbursement.......................................................................................39
3.03 Letter of Credit Fee................................................................................42
3.04 Administrative Fees.................................................................................43
ARTICLE IV Yield Protection and Illegality
4.01 Additional Costs....................................................................................44
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Page
4.02 Suspension of Loans.................................................................................45
4.03 Illegality..........................................................................................46
4.04 Compensation........................................................................................46
4.05 Alternate Loan and Lender...........................................................................47
4.06 Taxes...............................................................................................47
4.07 Replacement Lenders.................................................................................49
ARTICLE V Conditions to Making Loans and IssuingLetters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit.....................................50
5.02 Conditions of Loans.................................................................................51
5.03 Supplements to Schedules............................................................................52
ARTICLE VI Representations and Warranties
6.01 Representations and Warranties......................................................................53
ARTICLE VII Affirmative Covenants
7.01 Financial Reports, Etc..............................................................................60
7.02 Maintain Properties.................................................................................61
7.03 Existence, Qualification, Etc.......................................................................61
7.04 Regulations and Taxes...............................................................................61
7.05 Insurance...........................................................................................61
7.06 True Books..........................................................................................62
7.07 Pay Indebtedness to Lenders and Perform Other Covenants.............................................62
7.08 Right of Inspection.................................................................................62
7.09 Observe all Laws....................................................................................62
7.10 Covenants Extending to Subsidiaries.................................................................62
7.11 Officer's Knowledge of Default......................................................................62
7.12 Suits or Other Proceedings..........................................................................63
7.13 Notice of Discharge of Hazardous Material or Environmental Complaint................................63
7.14 Environmental Compliance............................................................................63
7.15 Further Assurances..................................................................................63
7.16 Benefit Plans.......................................................................................63
7.17 Continued Operations................................................................................64
7.18 Use of Proceeds.....................................................................................64
7.19 Year 2000 Compliance................................................................................64
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Page
ARTICLE VIII Negative Covenants
8.01 Indebtedness to Capitalization......................................................................65
8.02 Consolidated Fixed Charge Ratio.....................................................................65
8.03 Indebtedness........................................................................................65
8.04 Liens...............................................................................................66
8.05 Transfer of Assets..................................................................................67
8.06 Investments; Acquisitions...........................................................................67
8.07 Merger or Consolidation.............................................................................68
8.08 Transactions with Affiliates........................................................................68
8.09 Benefit Plans.......................................................................................68
8.10 Fiscal Year.........................................................................................69
8.11 Dissolution, etc....................................................................................69
8.12 Change in Control...................................................................................69
ARTICLE IX Events of Default and Acceleration
9.01 Events of Default...................................................................................70
9.02 Administrative Agent to Act.........................................................................73
9.03 Cumulative Rights...................................................................................73
9.04 No Waiver...........................................................................................74
9.05 Default.............................................................................................74
9.06 Allocation of Proceeds..............................................................................74
ARTICLE X The Administrative Agent
10.01 Appointment.........................................................................................75
10.02 Attorneys-in-fact...................................................................................75
10.03 Limitation on Liability.............................................................................75
10.04 Reliance............................................................................................75
10.05 Notice of Default...................................................................................76
10.06 No Representations..................................................................................76
10.07 Indemnification.....................................................................................77
10.08 Lender..............................................................................................77
10.09 Resignation.........................................................................................77
10.10 Sharing of Payments, etc............................................................................78
10.11 One Lender..........................................................................................78
10.12 Additional Fees.....................................................................................78
ARTICLE XI Miscellaneous
11.01 Assignments and Participations......................................................................79
11.02 Notices.............................................................................................81
11.03 Setoff..............................................................................................82
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11.04 Survival............................................................................................82
11.05 Expenses............................................................................................83
11.06 Amendments..........................................................................................83
11.07 Counterparts........................................................................................84
11.08 WAIVERS BY BORROWERS................................................................................84
11.09 Termination.........................................................................................85
11.10 Governing Law.......................................................................................85
11.11 Indemnification.....................................................................................85
11.12 Headings and References.............................................................................87
11.13 Severability........................................................................................87
11.14 Entire Agreement....................................................................................87
11.15 Agreement Controls..................................................................................87
11.16 Usury Savings Clause................................................................................88
11.17 Consents to Renewals, Modifications and Other Actions and Events....................................88
11.18 Confidentiality.....................................................................................89
EXHIBIT A Applicable Commitment Percentages..................................................................111
EXHIBIT B Form of Assignment and Acceptance..................................................................113
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative.................................119
EXHIBIT D-1 Form of Borrowing Notice--Revolving Credit Loans...................................................120
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.........................................................122
EXHIBIT E Form of Competitive Bid Note.......................................................................124
EXHIBIT F Permitted Acquisitions Certificate.................................................................128
EXHIBIT G-1 Form of Revolving Credit Notes.....................................................................133
EXHIBIT G-2 Form of Swing Line Note............................................................................136
EXHIBIT H Interest Rate Selection Notice.....................................................................139
EXHIBIT I Form of Competitive Bid Quote Request..............................................................141
EXHIBIT J Form of Competitive Bid Quote......................................................................142
EXHIBIT K Form of Opinion of Borrowers' Counsel..............................................................144
EXHIBIT L Compliance Certificate.............................................................................145
Schedule 1.02(a) Existing Letters of Credit.....................................................................148
Schedule 1.02(b) Pricing Grid...................................................................................149
Schedule 6.01(d) Subsidiaries and Investments in Other Persons..................................................150
Schedule 6.01(f) Contingent Liabilities.........................................................................151
Schedule 6.01(g) Liens..........................................................................................152
Schedule 6.01(j) Litigation.....................................................................................153
Schedule 6.01(p) ERISA Matters..................................................................................154
Schedule 6.01(r) Environmental Issues...........................................................................155
Schedule 7.05 Existing Insurance.............................................................................156
Schedule 8.03 Indebtedness...................................................................................157
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AMENDED AND RESTATED
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS AMENDED AND RESTATED CREDIT FACILITIES AND REIMBURSEMENT
AGREEMENT, dated as of March 12, 1999 (the "Agreement"), is made by and among:
REPUBLIC INDUSTRIES, INC., a Delaware corporation having its principal
place of business in Ft. Lauderdale, Florida (the "Company"); and
REPUBLIC RESOURCES COMPANY, a Delaware corporation having its principal
place of business in Wilmington, Delaware ("RRC", and together with the Company,
each a "Borrower", and collectively, the "Borrowers"); and
NATIONSBANK, N.A., a national banking association organized and
existing under the laws of the United States of America and having its principal
place of business in Charlotte, North Carolina ("NationsBank"), each other
lender signatory hereto on the Closing Date and each Eligible Assignee which may
hereafter execute and deliver an instrument of assignment with respect to this
Agreement pursuant to Section 11.01 (hereinafter NationsBank and such other
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"; and
NATIONSBANK, N.A., in its capacity as administrative agent for the
Lenders (in such capacity, the "Administrative Agent");
W I T N E S S E T H:
--------------------
WHEREAS, the Borrowers, NationsBank, N.A., as administrative agent and
certain lenders (the "Existing Lenders") have entered into a Credit Facilities
and Reimbursement Agreement dated April 23, 1997, as amended (the "Original
Agreement") pursuant to which the Existing Lenders have made available to the
Borrowers a revolving credit facility of up to $1,000,000,000 with a letter of
credit sublimit of $500,000,000 and a swing line sublimit of $50,000,000; and
WHEREAS, the Borrowers have requested that the Original Agreement be
amended and restated in its entirety; and
WHEREAS, the Lenders are willing to amend and restate the Original
Agreement and to continue to make available to the Borrowers the revolving
credit facility of up to $1,000,000,000 with a letter of credit sublimit of
$500,000,000 and a swing line sublimit of $50,000,000;
NOW, THEREFORE, the Borrowers, the Lenders and the Administrative Agent
hereby agree as follows:
ARTICLE I
Definitions
1.01 Amendment and Restatement. The Borrowers, the Administrative Agent
and the Lenders hereby agree that upon the effectiveness of this Agreement, the
terms and provisions of the Original Agreement shall be and hereby are amended
and restated in their entirety by the terms and conditions of this Agreement and
the terms and provisions of the Original Agreement, except as otherwise provided
herein, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Original Agreement
by this Agreement, the Borrowers shall continue to be liable to the
Administrative Agent and the Existing Lenders with respect to agreements on the
part of the Borrowers under Section 11.11 of the Original Agreement to indemnify
and hold harmless the Administrative Agent and the Existing Lenders from and
against all claims, demands, liabilities, damages, losses, costs, charges and
expenses to which the Administrative Agent and the Existing Lenders may be
subject arising in connection with the Original Agreement. This Agreement is
given as a substitution of, and not as a payment of, the obligations of
Borrowers under the Original Agreement and is not intended to constitute a
novation of the Original Agreement. Except as otherwise selected by the
Borrowers by delivery of a Borrowing Notice or interest rate selection notice
prior to the Closing Date in accordance with the terms hereof, upon the
effectiveness of this Agreement all amounts outstanding and owing by Borrowers
under the Original Agreement as of the Closing Date, as determined by the
Lenders, shall constitute Advances hereunder accruing interest with respect to
the Base Rate Loans under the Original Agreement, at the Base Rate hereunder.
The Borrowers shall furnish to the Administrative Agent a notice pursuant to
Section 2.11 for existing Loans and Borrowing Notices for additional Loans as
may be required in connection with the allocation of Loans among Lenders in
accordance with their Applicable Commitment Percentages.
This Agreement shall become effective upon the execution of the
Agreement by the Borrowers, the Agent and the Required Lenders and the
satisfaction of the conditions set forth in Section 5.01.
1.02 Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" has the meaning assigned to such term in
Section 2.02(c)(ii)(C) hereof;
"Advance" means a borrowing under (i) the Revolving Credit
Facility, consisting of the aggregate principal amount of a Base Rate
Loan or a Eurodollar Loan, as the case may be or (ii) the Swing Line
consisting of Base Rate Loans or Swing Line Loans bearing interest at a
rate mutually agreed upon by NationsBank and a Borrower, or (iii) the
Competitive Bid Facility consisting of Competitive Bid Loans;
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"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with either Borrower; (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of either Borrower; or (iii) 5% or more of any class
of the outstanding voting stock (or in the case of a Person which is
not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by either Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, for each Lender with
respect to the Revolving Credit Facility (including its Participations
and its obligations hereunder to any Issuing Bank or NationsBank to
acquire Participations) (each a type of "credit exposure"), a fraction
(expressed as a percentage), (A) the numerator of which shall be the
then amount of such Lender's Revolving Credit Commitment (which
Revolving Credit Commitment for each Lender as of the Closing Date is
as set forth in Exhibit A attached hereto and incorporated herein by
this reference), and (B) the denominator of which shall be,
respectively, the Total Revolving Credit Commitment; provided that each
Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in
accordance with Section 11.01 hereof and any voluntary or mandatory
reductions in such committed amounts;
"Applicable Eurodollar Margin" means that number of basis
points per annum set forth on the Pricing Grid under the heading
"Applicable Eurodollar Margin" which shall be based upon either the (i)
ratio of Consolidated Funded Indebtedness to Consolidated Total
Capitalization or (ii) the Company's Rating as set forth on the Pricing
Grid, as determined pursuant to Section 2.03(c);
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Company from time to time and delivered to the
applicable Issuing Bank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance substantially in the form of Exhibit B (with blanks
appropriately filled in) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this
Agreement pursuant to Section 11.01;
"Authorized Representative" means any of the Chairman, Vice
Chairmen, President, Executive Vice Presidents or Vice Presidents of
either Borrower and, with respect to financial matters, the Treasurer,
Vice President Finance or Chief Financial Officer of either Borrower or
any other person expressly designated by the Board of Directors of
either Borrower (or the appropriate committee thereof) as an Authorized
Representative of such
3
Borrower, as set forth from time to time in a certificate in the form
attached hereto as Exhibit C;
"Automobile Retailing Activities" means new and used vehicle
retailing, wholesaling, renting, leasing, financing, servicing and
related activities;
"AutoNation TROL" means, the amended and restated Tax
Retention Operating Lease facility entered into as of November 18, 1996
between AutoNation USA Corporation and First Security Bank, National
Association (as successor in interest to First Security Bank of Utah,
N.A.) as owner trustee under the AutoNation Trust 1996-1 as such
facility has been or may be amended, amended and restated, supplemented
or otherwise modified from time to time;
"Base Rate" means the greater of (i) the sum of the Federal
Funds Effective Rate plus one-half of one percent (1/2%), or (ii) the
Prime Rate;
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate;
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay NationsBank in
respect of Swing Line Outstandings;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrower's Account" means (a) with respect to the Company,
demand deposit account number 3750682241, and (b) with respect to RRC,
demand deposit account number 3750794553, or any respective successor
accounts with the Administrative Agent, which may be maintained at one
or more offices of the Administrative Agent or an agent of the
Administrative Agent;
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms attached hereto as Exhibits
D-1 and D-2, respectively;
"Business Day" means (i) with respect to any Eurodollar Loan
or any Competitive Bid Loan at the Eurodollar Competitive Rate, any day
which is a Business Day, as described below, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England and New
York, New York, and (ii) with respect to any other Loan and for any
other purposes hereof, any day which is not a Saturday, Sunday or a day
on which banks in the States of Florida, North Carolina and New York
are authorized or obligated by law, executive order or governmental
decree to be closed;
4
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting Principles
as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof;
"Change in Control" means (i) if any Person or group of
Persons acting in concert other than the owners of more than 35% of the
outstanding voting securities of the Company as of the Closing Date
having voting rights in the election of directors, shall own or
control, directly or indirectly, more than 35% of the outstanding
securities (on a fully diluted basis and taking into account any voting
securities or contract rights exercisable, exchangeable or convertible
into equity securities) of the Company having voting rights in the
election of directors; or (ii) the replacement or resignation (other
than by reason of death, illness or incapacity), within any two-year
period, of a majority of the members of the Board of Directors of the
Company (the "Board") or a change in the size of the Board, within any
two-year period, which results in members of the Board who were in
office at the beginning of such two-year period constituting less than
a majority of the members of the Board (unless such replacement,
resignation or change in size of the Board shall have been effected or
initiated by a majority of the members of the Board in office at the
beginning of such two-year period);
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Lenders and the Administrative Agent and
on which the conditions set forth in Section 5.01 have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Competitive Bid Borrowing" has the meaning assigned to such
term in Section 2.02 hereof;
"Competitive Bid Facility" means the facility described in
Section 2.02 hereof providing for Competitive Bid Loans to the
Borrowers;
"Competitive Bid Loan Commitment" means the amount which a
Lender has offered to loan to the Borrowers pursuant to a Competitive
Bid Quote by such Lender, the sum of all Competitive Bid Loans not to
exceed in the aggregate one hundred percent (100%) of the Total
Revolving Credit Commitment;
"Competitive Bid Loans" means the Loans bearing interest at an
Absolute Rate or a Eurodollar Competitive Rate provided for in Section
2.02 hereof;
"Competitive Bid Notes" means, collectively, the promissory
notes of the Borrowers with respect to Competitive Bid Loans provided
for by Section 2.02 hereof executed and delivered to the Lenders as
provided in Section 2.07(c) substantially in the form attached
5
hereto as Exhibit E and incorporated herein by reference, with
appropriate insertions as to dates and names of Lenders, and all
promissory notes delivered in substitution or exchange therefor, in
each case as the same shall be amended, modified or supplemented and in
effect from time to time;
"Competitive Bid Quote" means an offer in accordance with
Section 2.02 hereof by a Lender to make a Competitive Bid Loan with one
single specified interest rate;
"Competitive Bid Quote Request" has the meaning assigned to
such term in Section 2.02 hereof;
"Compliance Certificate" means a certificate in the form of
Exhibit L furnished to the Administrative Agent and Lenders by the
Company pursuant to Section 7.01 hereof;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of the Company referred to in Section 6.01(f)(i)
hereof;
"Consolidated EBITDA" means, with respect to the Company and
its Subsidiaries for any period of computation thereof during such
period, the sum of, without duplication, (i) Consolidated Net Income,
plus (ii) Consolidated Interest Expense during such period, plus (iii)
taxes on income during such period, plus (iv) amortization during such
period, plus (v) depreciation during such period (with the exclusion of
any depreciation related to Vehicles), determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; provided, however, that with respect to
any Permitted Acquisition which is accounted for as a "purchase", for
the Four-Quarter Period following such acquisition, the Consolidated
EBITDA shall include the results of operations of the Person or assets
so acquired which amounts shall be determined on an historical pro
forma basis in form and substance reasonably satisfactory to the
Administrative Agent so long as the Company has furnished to the
Administrative Agent financial information acceptable to the
Administrative Agent with respect to the Person or assets which are the
subject of such Permitted Acquisition; *
"Consolidated Fixed Charge Ratio" means, with respect to the
Company and its Subsidiaries for the Four-Quarter Period ending on the
date of computation thereof, the ratio of (a) Consolidated EBITDA to
(b) Consolidated Interest Expense; *
-----------
* Excludes Republic Services Group, Inc. and its Subsidiaries ("RSG")
since they are not deemed Subsidiaries for purposes of this Agreement.
6
"Consolidated Funded Indebtedness" means Funded Indebtedness
of the Company and its Subsidiaries, determined on a consolidated basis
in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis, provided, Vehicle Secured Indebtedness and Vehicle
Receivables Indebtedness shall be excluded from the calculation of
Consolidated Funded Indebtedness and the principal amount of loans plus
equity holder advances under the AutoNation TROL shall be included in
Consolidated Funded Indebtedness; *
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Company and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
payable in connection with the incurrence of Indebtedness to the extent
included in interest expense and (iii) the portion of any liabilities
incurred in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis,
provided, however, Consolidated Interest Expense shall not include any
interest expense classified as cost of goods sold in accordance with
Generally Accepted Accounting Principles but shall include as interest
all interest on loans and all yield on equity holder advances under the
AutoNation TROL; *
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Company and its
Subsidiaries, less all operating and non-operating expenses of the
Company and its Subsidiaries including taxes on income, all determined
on a consolidated basis in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis; but excluding all
non-cash, non-recurring and extraordinary gains or losses, all as
determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; *
"Consolidated Shareholders' Equity" means at any time as of
which the amount thereof is to be determined, the sum of the following
in respect of the Company and its Subsidiaries (determined on a
consolidated basis and excluding intercompany items among the Company
and its Subsidiaries and any upward adjustment after December 31, 1998
due to revaluation of assets): (i) the amount of issued and outstanding
share capital, plus (ii) the amount of additional paid-in capital and
retained income (or, in the case of a deficit, minus the amount of such
deficit), minus (iii) the amount of any foreign currency translation
adjustment which is included in the equity section of the consolidated
balance sheet (whether positive or negative), minus (iv) the absolute
value of any treasury stock and the absolute value of any stock
subscription receivables, as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; *
-----------
* Excludes Republic Services Group, Inc. and its Subsidiaries ("RSG")
since they are not deemed Subsidiaries for purposes of this Agreement.
7
"Consolidated Total Assets" means assets of the Company and
its Subsidiaries as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis; *
"Consolidated Total Capitalization" means, as at any time as
of which the amount thereof is to be determined, the sum of
Consolidated Funded Indebtedness plus Consolidated Shareholders'
Equity;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the consolidated financial
statements (including footnotes) of such Person in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis,
including Statement No. 5 of the Financial Accounting Standards Board,
and any obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
with respect to Contingent Obligations (such as litigation, guarantees
and pension plan liabilities), such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can
reasonably be expected to become an actual or matured liability;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
8
"Determination Date" means the last day of each fiscal
quarterly period of the Company;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.01, the Borrower,
such approval not to be unreasonably withheld (provided that the
incurrence by the Borrower of additional costs pursuant to Section 4.05
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Borrower and such approval
to be deemed given by the Borrower (in the absence of notice to the
contrary, effective upon receipt) within two Business Days after notice
of such proposed assignment has been provided by the assigning Lender
to the Borrower; provided, however, that neither the Borrower nor an
affiliate of the Borrower shall qualify as an Eligible Assignee;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Required
Lenders:
(a) Government Securities;
(b) the following debt securities of the following
agencies or instrumentalities of the United States of America
if at all times the full faith and credit of the United States
of America is pledged to the full and timely payment of all
interest and principal thereof:
(i) all direct or fully guaranteed
obligations of the United States Treasury; and
(ii) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
(c) the following obligations of the following
agencies or instrumentalities of the United States of America:
(i) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(ii) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
9
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage
Association which have not had the interest portion
thereof severed therefrom;
(d) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
(e) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of acquisition issued by a bank or trust
company organized under the laws of the United States or of
any state thereof having capital surplus and undivided profits
aggregating at least $400,000,000 and being rated A- or better
by S&P or A or better by ▇▇▇▇▇'▇;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in
obligations described in paragraphs (a) through (g) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
Obligations listed in paragraphs (a), (b) and (c) above which
are in book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Eligible Special Purpose Entity" means any Person which is or
is not a Subsidiary of the Company which has been formed by or for the
benefit of the Company or any Subsidiary for the purpose of (i)
financing or refinancing, leasing, selling or securitizing Vehicles or
related receivables and which finances, refinances or securitizes
Vehicles or related receivables of, leases Vehicles to or purchases
Vehicles or related receivables from the Company or any Subsidiary; or
(ii) financing or refinancing consumer receivables, leases, loans or
retail installment contracts;
"Eligible TROL" means the AutoNation TROL and any similar tax
retention operating lease facility entered into by or for the benefit
of the Company or any Subsidiary;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments
10
and Reauthorization Act of 1986, the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, as amended, the Clean Air Act,
as amended, the Clean Water Act, as amended, any other "Superfund" or
"Superlien" law or any other applicable statute, law, ordinance, code,
rule, regulation, order or decree, of the United States or any foreign
nation or any province, territory, state, protectorate or other
political subdivision thereof, regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Eurodollar Competitive Rate" means, for the Interest Period
for any Competitive Bid Loan at a Eurodollar Competitive Rate, the rate
of interest per annum determined pursuant to the following formula:
Interbank Offered Rate
Eurodollar ----------------------
Competitive = 1-Eurodollar Reserve + or - a margin
Rate Percentage
"Eurodollar Loan" means a Loan for which the rate of interest
is determined by reference to the Eurodollar Revolver Rate;
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D or any successor regulation, as the maximum
reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable with
respect to Eurocurrency liabilities as that term is defined in
Regulation D (or against any other category of liabilities that
includes deposits by reference to which the interest rate of Eurodollar
Loans or Competitive Bid Loans at the Eurodollar Competitive Rate is
determined), whether or not any Lender has any Eurocurrency liabilities
subject to such requirements without benefits of credits or proration,
exceptions or offsets that may be available from time to time to any
Lender. The Eurodollar Revolver Rate and the Eurodollar Competitive
Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurodollar Reserve Percentage;
"Eurodollar Revolver Rate" means, for the Interest Period for
any Eurodollar Loan, the rate of interest per annum determined pursuant
to the following formula:
Interbank Offered Rate
Eurodollar ---------------------- Applicable
Revolver = 1-Eurodollar Reserve + Eurodollar
Rate Percentage Margin
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof, provided that any requirement for notice
or lapse of time, or both, has been satisfied;
11
"Existing Issuing Banks" means those financial institutions
which have issued the Existing Letters of Credit, as described on
Schedule 1.01 attached hereto;
"Existing Letters of Credit" means those Letters of Credit
issued by the Existing Issuing Banks, which are outstanding on the
Closing Date and which are described in Schedule 1.02(a) attached
hereto;
"Facility Fee" means that number of basis points per annum set
forth on the Pricing Grid under the heading "Applicable Facility Fee"
which shall be based upon either the (i) ratio of Consolidated Funded
Indebtedness to Consolidated Total Capitalization or (ii) Borrowers'
Rating as set forth on the Pricing Grid as determined pursuant to
Section 2.03(c) multiplied times each Lender's Revolving Credit
Commitment;
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor)
does not announce such rate on any day, the "Federal Funds Effective
Rate" for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was announced;
"Fiscal Year" means the period of the Company beginning on the
first day of January of each calendar year and ending on December 31 of
such calendar year;
"Four-Quarter Period" means a period of four full consecutive
quarterly periods, taken together as one accounting period;
"Funded Indebtedness" means, with respect to the Company and
its Subsidiaries, without duplication, all indebtedness in respect of
money borrowed, including without limitation all Capital Leases and the
deferred purchase price of any property or asset, evidenced by a
promissory note, bond or similar written obligation for the payment of
money (including, but not limited to, conditional sales or similar
title retention agreements), undrawn amounts of letters of credit and
any Reimbursement Obligations, and the principal amount of loans plus
equity holder advances under the AutoNation TROL all determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis, provided, Vehicle Secured Indebtedness and Vehicle
Receivables Indebtedness shall be excluded from the calculation of
Funded Indebtedness;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American
12
Institute of Certified Public Accountants or which have other
substantial authoritative support and are applicable in the
circumstances as of the date of a report, as such principles are from
time to time supplemented and amended;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government, any court or any arbitrator, in each case whether a
state of the United States, the United States or foreign nation, state,
province or other governmental instrumentality;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Funded Indebtedness, all Vehicle Secured Indebtedness,
all Vehicle Receivables Indebtedness,the principal amount of loans plus
equity holder advances under the AutoNation TROL, all indebtedness for
the acquisition of property, all indebtedness secured by any Lien on
the property of such Person whether or not such indebtedness is
assumed, all liability of such Person by way of endorsements (other
than for collection or deposit in the ordinary course of business), all
Contingent Obligations and other items which in accordance with
Generally Accepted Accounting Principles are classified as a liability
on a balance sheet; but excluding all accounts payable and accruals, in
each case in the ordinary course of business and only so long as
payment therefor is due within one year; provided that in no event
shall the term Indebtedness include partners' capital, surplus and
retained earnings, minority interests in other Persons, lease
obligations (other than pursuant to Capital Leases), reserves for
deferred income taxes and investment credits, other deferred credits
and reserves, and deferred compensation obligations; provided, that
there shall be included in the definition of Indebtedness, for purposes
of Section 9.01(e) only, any indebtedness arising under an Eligible
TROL;
"Interbank Offered Rate" means, with respect to any Eurodollar
Loan or any Competitive Bid Loan at a Eurodollar Competitive Rate, for
the Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) 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 term "Interbank Offered Rate" shall
mean, for any Eurodollar Loan or any Competitive Bid Loan at the
Eurodollar Competitive Rate
13
for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) 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;
"Interest Period" (a) for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at the
Borrowers' option, on the date one week or one, two, three or six
months thereafter as notified to the Administrative Agent by the
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; provided, that,
(i) if the Authorized Representative fails to notify
the Administrative Agent of the length of an Interest Period
three (3) Business Days prior to the first day of such
Interest Period, the Loan for which such Interest Period was
to be determined shall be deemed to be a Base Rate Loan
bearing interest at the Base Rate, as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar Loan
would end on a day which is not a Business Day such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
(iii) on any day, with respect to all Revolving
Credit Loans and Competitive Bid Loans, there shall not be in
effect (x) more than twenty (20) Interest Periods, and (y)
more than one (1) Interest Period having a term of one (1)
week;
(b) for each Competitive Bid Loan at an Absolute Rate means
the period commencing on the date of such Loan and ending on such date
as may be mutually agreed upon by the Borrowers and the Lender or
Lenders making such Competitive Bid Loan or Loans, as the case may be,
comprising such Competitive Bid Loan; provided that no Interest Period
for a Competitive Bid Loan at an Absolute Rate shall be for a period of
less than seven or greater than 90 days;
(c) for each Competitive Bid Loan at a Eurodollar Competitive
Rate means the period commencing on the date such Competitive Bid Loan
is made and ending, at the Borrowers' option, on the date one week or
one, two, three or six months thereafter as notified by the Borrowers
to such Lender by the Authorized Representative three (3) Business Days
prior to the beginning of such Interest Period provided that if an
Interest Period for such Loan would end on a day which is not a
Business Day, such Interest Period shall be extended to the next
Business Day (unless such extension would cause the applicable
14
Interest Period to end in the succeeding calendar month, in which case
such Interest Period shall end in the next preceding Business Day);
"Issuing Banks" means the Lenders who agree from time to time
to issue (provided that no Lender shall be obligated to do so) Letters
of Credit (including the Existing Issuing Banks) in accordance with
Section 3.01 and "Issuing Bank" means any one of such Issuing Banks. On
any date of determination, no more than four (4) Lenders (not including
any Existing Issuing Banks) may be Issuing Banks hereunder;
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Company and the Administrative Agent, as
amended, supplemented or otherwise modified from time to time;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Borrowers and the Administrative Agent as the office by which
its Loans are to be made and maintained;
"Letter of Credit" means (i) a standby letter of credit issued
by an Issuing Bank for the account of the Company in favor of a Person
advancing credit or securing an obligation on behalf of the Company and
(ii) each of the Existing Letters of Credit;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Letter of Credit
Participations up to an aggregate stated amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Letter of Credit Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Banks for
the account of the Company of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment;
"Lien" means any interest in property securing any 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 but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Company and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
15
"Loan" or "Loans" means any of the Revolving Credit Loans or
Swing Line Loans or Competitive Bid Loans;
"Loan Documents" means this Agreement, the Notes, the
Applications and Agreements for Letters of Credit, the LC Account
Agreement and all other instruments and documents heretofore or
hereafter executed or delivered to and in favor of any Lender or the
Administrative Agent in connection with the Loans or the Letters of
Credit made, issued or created under this Agreement as the same may be
amended, modified or supplemented from time to time;
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole, (ii)
the ability of any Borrower to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Administrative
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof (including for purposes of clauses (ii) and
(iii) the imposition of burdensome conditions thereon);
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware
corporation;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which (a) the Company or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, and (b) is a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"Notes" means, collectively, the Revolving Credit Notes, the
Swing Line Note and the Competitive Bid Notes which are to be delivered
to the Lenders;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrowers with respect to (i) the principal and
interest on the Loans, (ii) the Reimbursement Obligations and (iii) the
payment and performance of all other obligations, liabilities and
Indebtedness of the Borrowers to the Lenders or the Administrative
Agent hereunder, under any one or more of the other Loan Documents or
with respect to the Loans;
"Quotation Date" has the meaning assigned to such term in
Section 2.02 hereof;
"Outstanding Credit Obligations" means the sum of (i) the
Revolving Credit Outstandings, (ii) Outstanding Letters of Credit,
(iii) Swing Line Outstandings and (iv) outstanding Competitive Bid
Loans, all as at the date of determination thereof;
"Outstanding Letters of Credit" means all undrawn amounts of
Letters of Credit plus Reimbursement Obligations;
16
"Participation" means, with respect to any Lender (other than
NationsBank with respect to a Swing Line Loan, and other than the
applicable Issuing Bank with respect to a Letter of Credit), the
extension of credit represented by the participation of such Lender
hereunder in (a) the liability of NationsBank in respect of a Swing
Line Loan made or (b) the liability of the applicable Issuing Bank in
respect of Letters of Credit issued, all in accordance with the terms
hereof;
"Permitted Acquisition" means an acquisition of a Person or
the assets of a Person effected with the consent and approval of the
Board of Directors (or the appropriate committee thereof) or other
applicable governing body of such Person and the duly obtained approval
of such shareholders or other holders of equity interests in such
Person as may be required to be obtained under applicable law, the
charter documents of or any shareholder agreements or similar
agreements pertaining to such Person, which Person derives the majority
of its revenues either (x) from service or service related activities
or engages in other business or owns other assets which support or
compliment these service activities or (y) from Automobile Retailing
Activities, provided that after giving effect to such acquisition no
Default or Event of Default exists hereunder;
"Person" means an individual, partnership, corporation,
limited liability company, trust, unincorporated organization,
association, joint venture or a government or agency or political
subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants;
"Pricing Grid" means the table set forth on Schedule 1.02(b)
attached hereto setting forth the basis for (whether Consolidated
Funded Indebtedness to Consolidated Total Capitalization or Rating) and
the number of basis points to be utilized in calculating each of the
Applicable Eurodollar Margin, the Facility Fee and the Utilization Fee;
"Prime Rate" means the rate of interest per annum announced
publicly by the Administrative Agent as its prime rate from time to
time. The Prime Rate is not necessarily the best or the lowest rate of
interest offered by the Administrative Agent;
"Principal Office" means the office of the Administrative
Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor, NC1-001-15-04, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency
17
Services or such other office and address as the Administrative Agent
may from time to time designate;
"RSG" means Republic Services Group, Inc. and its
subsidiaries;
"Rating" means the long-term, unsecured, unenhanced debt
rating assigned to senior Indebtedness of the Company by S&P and
Moody's;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including with respect to "highly leveraged transactions," whether or
not having the force of law, whether or not failure to comply therewith
would be unlawful (but if not unlawful, noncompliance with which would
have the effect in the good faith judgment of the affected Lender of
imposing additional administrative or regulatory burdens or
consequences, costs or other adverse effects on such Lenders) and, to
the knowledge of the affected Lender, not published or proposed prior
to the date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Company with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 3.02) for amounts theretofore
paid by the Issuing Bank or the Lenders pursuant to a drawing under
such Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, the aggregate principal
amount of the Revolving Credit Loans and Competitive Bid Loans owing to
such Lender plus the aggregate unutilized amounts of such Lender's
Revolving Credit Commitment plus the amount of such Lender's Applicable
Commitment
18
Percentage of Swing Line Loans and Outstanding Letters of Credit and of
the Reimbursement Obligations; provided that, if any Lender shall have
failed to pay (x) to NationsBank its Applicable Commitment Percentage
of any Swing Line Loan or (y) to any Issuing Bank its Applicable
Commitment Percentage of any drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to Swing Line Loans shall be deemed to be
held by NationsBank for purposes of this definition, and such Lender's
Credit Exposure attributable to Letters of Credit, Reimbursement
Obligations and the Letter of Credit Commitment shall be deemed to be
held by the applicable Issuing Bank for purposes of this definition;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Loans to the Borrowers
and purchase Participations up to an aggregate principal amount at any
one time outstanding, determined with reference to such Lender's
percentage as set forth on Exhibit A attached hereto of the Total
Revolving Credit Commitment as the same may be increased or decreased
from time to time pursuant to this Agreement;
"Revolving Credit Facility" means the facility described in
Section 2.01(a) hereof providing for Loans to the Borrowers by the
Lenders in the aggregate principal amount of the Total Revolving Credit
Commitment less the aggregate amount of Swing Line Outstandings and
Outstanding Letters of Credit and outstanding Competitive Bid Loans;
"Revolving Credit Loan" means a Loan made pursuant to the
Revolving Credit Facility;
"Revolving Credit Notes" means, collectively, the promissory
notes of the Borrowers evidencing Loans executed and delivered to the
Lenders as provided in Section 2.07(a) hereof substantially in the form
attached hereto as Exhibit G-1, with appropriate insertions as to
amounts, dates and names of Lenders;
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Credit
Loans then outstanding and all interest accrued thereon;
"Revolving Credit Termination Date" means (i) April 22, 2002
or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.01 upon the occurrence of an Event of Default, or
(iii) such date as the Borrowers may voluntarily permanently terminate
the Revolving Credit Facility and the Competitive Bid Facility by
payment in full of all Obligations (including the discharge of all
Obligations of NationsBank, the Issuing Banks and the Lenders with
respect to Letters of Credit, Participations and Competitive Bid
Loans);
"S&P" means Standard & Poor's Rating Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.;
19
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which (a) the Company or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, and (b) is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrowers
and/or by one or more of the Borrowers' Subsidiaries; provided,
however, that RSG shall not be deemed a Subsidiary for all purposes of
this Agreement;
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrowers pursuant to Section 2.15;
"Swing Line Loans" means Loans made by NationsBank to the
Borrowers pursuant to Section 2.15;
"Swing Line Note" means the promissory note of the Borrowers
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.07(c) hereof substantially in the form attached
hereto as Exhibit G-2, with appropriate insertions as to amounts, dates
and names;
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding;
"364 Day Agreement" means the 364 Day Credit Facility and
Reimbursement Agreement dated March 12, 1999 among the Company,
NationsBank, N.A., as Administrative Agent and the Lenders party
thereto;
"364 Day Outstandings" means as at the date of determination,
the sum of the outstanding loans under the 364 Day Agreement and
undrawn amounts of letters of credit issued pursuant to the 364 Day
Agreement;
"Total Letter of Credit Commitment" means an amount not to
exceed $500,000,000;
20
"Total Revolving Credit Commitment" means an amount not to
exceed $1,000,000,000, as reduced from time to time in accordance with
Section 2.09 and Section 2.10, which shall be made available by the
Lenders to the Borrowers during the period from the date hereof until
the Revolving Credit Termination Date;
"TROL Credit Documents" shall have the same meaning as the
meaning assigned to the term `Credit Documents' under Appendix A to
that certain Amended and Restated Participation Agreement, dated as of
November 18, 1996 among AutoNation USA Corporation, as construction
agent and as lessee, First Security Bank, National Association, as
owner trustee under the AutoNation Trust 1996-1, the various banks and
other lending institutions which are parties thereto from time to time,
as the holders and lenders, and the Administrative Agent, as
administrative agent for the lenders thereunder, as such Participation
Agreement and Appendix A thereto may be or may have been amended,
modified or supplemented from time to time;
"Utilization Fee" means a quarterly fee equal to, on an
annualized basis, the product of 12.5 basis points times the average
daily outstanding amount during a fiscal quarter of loans and letters
of credit under this Agreement; provided, however, that a Utilization
Fee shall be payable only when (a) senior unsecured, unenhanced debt
rating of the Company is at Tier II or Tier I as set forth on the
Pricing Grid, and (b) the average daily outstanding amount during such
fiscal quarter of loans and letters of credit under the 364 Day
Agreement, TROL Credit Documents and this Agreement exceeds 50% of the
total committed amount under the 364 Day Agreement, the TROL Credit
Documents and this Agreement;
"Vehicle Receivables Indebtedness" means Indebtedness incurred
by any Eligible Special Purpose Entity to finance, refinance or
guaranty the financing or refinancing of consumer receivables, leases,
loans or retail installment contracts incurred in the sale, transfer or
lease of Vehicles; provided (x) such Indebtedness shall in accordance
with Generally Accepted Accounting Principles not appear as an asset or
liability on the balance sheet of the Company or any of its
Subsidiaries; (y) no assets other than the Vehicles, consumer
receivables, leases, loans, retail installment contracts or related
proceeds (including, without limitation, proceeds from insurance,
Vehicles and other obligations under such receivables, leases, loans or
retail installment contracts) to be financed or refinanced secure such
Indebtedness; and (z) neither the Company nor any of its Subsidiaries
shall incur any liability with respect to such Indebtedness other than
liability arising by reason of a breach of a representation or warranty
contained in any instrument relating to such Indebtedness;
"Vehicle Secured Indebtedness" means Indebtedness incurred by
the Company, any Subsidiary or any Eligible Special Purpose Entity to
lease, finance or refinance or guaranty the leasing, financing or
refinancing of Vehicles or related receivables, which Indebtedness is
secured by the Vehicles or related receivables so financed, to the
extent, at any date of determination thereof, the amount of such
Indebtedness does not exceed the depreciated book
21
value of such Vehicles or the book value of such related receivables as
determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Vehicles" means all now existing or hereafter acquired new
and used automobiles, sport utility vehicles, trucks and vans of all
types and descriptions, whether held for sale, lease, rental or
operational purposes, which relate to the Company's or any Subsidiary's
Automobile Retailing Activities;
"Year 2000 Compliant" means all computer applications of the
Borrowers and their Subsidiaries (including those affected by
information received from its suppliers and vendors) that are material
to the Borrowers' or any of their Subsidiaries' business and operations
will on a timely basis be able to perform properly date-sensitive
functions involving all dates on and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
that are owned or leased and are used by either of the Borrowers or any
of their Subsidiaries (including those affected by information received
from its suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates on and after
January 1, 2000.
1.03 Use of Defined Terms. Terms for which meanings are provided in
this Agreement shall, unless otherwise defined or the context otherwise
requires, have such meanings when used in the Notes, each Borrowing Notice, each
Compliance Certificate, each Loan Document and each notice and other
communication delivered from time to time in connection with this Agreement or
any instrument hereafter executed pursuant hereto.
1.04 Cross References. Unless otherwise specified, references in this
Agreement and in each Loan Document to any Article or Section are references to
such Article or Section of this Agreement or such Loan Document, as the case may
be, and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Section, Article
or definition.
1.05 Accounting and Financial Determinations. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable, be made in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis except insofar as:
(a) the Borrowers shall have elected (with the concurrence of
its independent public accountant and upon prior written notification
to the Lenders) to adopt more recently promulgated Generally Accepted
Accounting Principles (which election shall continue to be effective
for subsequent years);
22
(b) the Administrative Agent and the Required Lenders shall
have consented to such election (it being understood that such consent
may be conditioned upon the implementation of such changes to Sections
8.01 and 8.02 as are appropriate to reflect such adoption of more
recently promulgated Generally Accepted Accounting Principles and it
being further understood that such consent shall be deemed to have been
given upon the implementation of such changes); and
(c) the Company shall have excluded as a Subsidiary RSG from
its financial statements.
Upon a change in Generally Accepted Accounting Principles which becomes
effective after the Closing Date which would have a material effect on the
Company's consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of the
covenants contained in Article VIII hereof, such change shall not be given
effect for purposes hereof until sixty (60) days from the otherwise effective
date of such change. Prior to such effectiveness the Administrative Agent, the
Lenders and the Borrowers shall in good faith negotiate to amend the pertinent
provisions of this Agreement to account for such change to the extent
appropriate to effect the substance thereof as of the Closing Date. If such an
amendment is not entered into with respect to any such change, such change shall
not be given effect for purposes hereof.
1.06 General Provisions Relating to Definitions. Terms for which
meanings are defined in this Agreement shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's successors and assigns. References to any instrument
defined in this Agreement refer to such instrument as originally executed or, if
subsequently varied, replaced or supplemented from time to time, as so varied,
replaced or supplemented and in effect at the relevant time of reference
thereto.
23
ARTICLE II
The Loans
2.01 Commitments; Joint and Several Liability
(a) Revolving Credit Commitment. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances to the Borrowers,
from time to time from the Closing Date until the Revolving Credit Termination
Date, on a pro rata basis as to the total borrowing requested by the Borrowers
under the Revolving Credit Facility on any day determined by its Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender, provided, however, that the Lenders will not be required and shall
have no obligation to make any Advance (i) so long as not all of the conditions
under Section 5.02 hereof have been fulfilled, (ii) so long as a Default or an
Event of Default has occurred and is continuing or (iii) if the Administrative
Agent has accelerated the maturity of the Revolving Credit Notes as a result of
an Event of Default; provided further, however, that immediately after giving
effect to each such Advance, the principal amount of Outstanding Credit
Obligations shall not exceed the Total Revolving Credit Commitment. Within such
limits, the Borrowers may borrow, repay and reborrow hereunder, on a Business
Day in the case of a Base Rate Loan and on a Business Day in the case of a
Eurodollar Loan, from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date; provided,
however, that (x) no Eurodollar Loan that is a Revolving Credit Loan shall be
made which has an Interest Period that extends beyond the Revolving Credit
Termination Date and (y) each Eurodollar Loan may, subject to the provisions of
Section 2.11, be repaid only on the last day of the Interest Period with respect
thereto.
(b) Amounts. Except as otherwise permitted by all of the Lenders from
time to time, the aggregate unpaid principal amount of the Outstanding Credit
Obligations shall not exceed at any time an amount equal to the Total Revolving
Credit Commitment. Each Loan under the Revolving Credit Facility, other than a
Swing Line Loan pursuant to Section 2.15 hereof or a Base Rate Refunding Loan,
and each conversion thereof under Section 2.11 shall be in a principal amount of
at least $10,000,000, and, if greater than $10,000,000, an integral multiple of
$1,000,000.
(c) Advances and Rate Selection. (i) An Authorized Representative shall
give the Administrative Agent (1) at least three (3) Business Days' irrevocable
telephonic notice of each Eurodollar Loan (whether representing an additional
borrowing hereunder or the conversion of borrowing hereunder from Base Rate
Loans or other Eurodollar Loans to Eurodollar Loans) prior to 10:30 A.M.,
Charlotte, North Carolina time; and (2) irrevocable telephonic notice of each
Base Rate Loan (other than Base Rate Refunding Loans to the extent the same are
effected without notice pursuant to Section 2.01(c)(iv)) representing an
additional borrowing hereunder prior to 10:30 A.M. Charlotte, North Carolina
time on the day of such proposed Base Rate Loan. Each such borrowing notice,
which shall be effective upon receipt by the Administrative Agent, shall specify
the amount of the borrowing, the type (Base or Eurodollar) of Loan, the date of
borrowing and, if a Eurodollar Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the
Administrative Agent written confirmation of each such telephonic notice on the
24
same day by telefacsimile transmission in the form of a Borrowing Notice, for
additional Advances, or in the form attached hereto as Exhibit H as to selection
or conversion of interest rates as to outstanding Loans, in each case with
appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. The duration of the initial
Interest Period for each Loan that is a Eurodollar Loan shall be as specified in
the initial Borrowing Notice. The Borrowers shall have the option to elect the
duration of subsequent Interest Periods and to convert the Loans (other than
Swing Line Loans) in accordance with Section 2.11 hereof. If the Administrative
Agent does not receive a notice of election of duration of an Interest Period or
to convert by the time prescribed hereby and by Section 2.11 hereof, the
Borrowers shall be deemed to have elected as to any Revolving Credit Loan, to
convert such Loan to (or continue such Loan as) a Base Rate Loan bearing
interest at the Base Rate until either Borrower notifies the Administrative
Agent in accordance with this Section and Section 2.11.
(ii) Notice of receipt of each Borrowing Notice shall be provided by
the Administrative Agent to each Lender by telefacsimile or telephonic notice
with reasonable promptness, but not later than 2:00 P.M., Charlotte, North
Carolina time on the same day as Administrative Agent's receipt of such
Borrowing Notice.
(iii) Not later than 3:00 P.M., Charlotte, North Carolina time on the
date specified for each Advance, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Loan or
Loans to be made by it on such day available to the Administrative Agent, by
depositing or transferring the proceeds thereof in immediately available funds
at the Principal Office. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to either Borrower by delivery of the proceeds thereof to the applicable
Borrower's Account or otherwise as shall be directed in the applicable Borrowing
Notice by the Authorized Representative.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank thereunder prior
to the Revolving Credit Termination Date, and the Company shall not immediately
fully reimburse such Issuing Bank in respect of such drawing, (A) provided that
the conditions to making a Revolving Credit Loan as herein provided shall then
be satisfied, the Reimbursement Obligation arising from such drawing shall be
paid to such Issuing Bank by the Administrative Agent without the requirement of
notice to or from the Company from immediately available funds which shall be
advanced as a Base Rate Refunding Loan by each Lender under the Revolving Credit
Facility in an amount determined with reference to such Lender's Applicable
Commitment Percentage of such Reimbursement Obligation, and (B) if the
conditions to making a Revolving Credit Loan as herein provided shall not then
be satisfied, each of the Lenders shall fund by payment to the Administrative
Agent (for the benefit of the Issuing Bank) in immediately available funds the
purchase from such Issuing Bank of their respective Participations in the
related Reimbursement Obligation based on their respective Applicable Commitment
Percentages of the Total Letter of Credit Commitment. If a drawing is presented
under any Letter of Credit in accordance with the terms thereof and the Company
shall not immediately reimburse the Issuing Bank thereunder in respect thereof,
then notice of such drawing or payment shall be provided promptly by such
Issuing Bank to the Administrative Agent and the Administrative
25
Agent shall provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any Letter of Credit
is given by the Administrative Agent at or before 12:00 noon on any Business
Day, each Lender shall, pursuant to the conditions specified in this Section
2.01(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Administrative Agent
for the account of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. on the same Business Day. If notice
to the Lenders of a drawing under a Letter of Credit is given by the
Administrative Agent after 12:00 noon on any Business Day, each Lender shall,
pursuant to the conditions specified in this Section 2.01(c)(iv), either make a
Base Rate Refunding Loan or fund the purchase of its Participation in the amount
of such Lender's Applicable Commitment Percentage of such drawing or payment and
shall pay such amount to the Administrative Agent for the account of the Issuing
Bank at the Principal Office in Dollars and in immediately available funds
before 12:00 noon on the next following Business Day. Any such Base Rate
Refunding Loans shall be advanced as, and shall continue as, a Base Rate Loan
unless and until the Company converts such Base Rate Loan in accordance with the
terms of Section 2.11.
(d) Joint and Several Liability, Contribution Rights.
(i) Notwithstanding any other provision of this Agreement,
each Borrower shall be jointly and severally liable as primary obligor
and not merely as surety for repayment of all Obligations arising under
the Loan Documents. Such joint and several liability shall apply to
each Borrower regardless of whether (x) any Loan was only requested by
or made to the other Borrower or the proceeds of any Loan were used
only by the other Borrower, (y) any interest rate selection was made
only by the other Borrower, or (z) any indemnification obligation or
any other obligation arose only as a result of the actions of the other
Borrower; provided that the liability of RRC under this Agreement, the
Notes and the other Loan Documents shall be limited to the amount of
unpaid principal and interest of Revolving Credit Loans, Swing Line
Loans and Competitive Bid Loans made to RRC and fees, cost and expenses
payable by the Borrowers pursuant to this Agreement.
(ii) If any Borrower makes a payment in respect of the
Obligations it shall have the rights of contribution set forth below
against the other Borrower; provided, that such Borrower shall not
exercise its right of contribution until all the Obligations shall have
been finally paid in full in cash.
(iii) It is the intent of each Borrower, the Administrative
Agent and the Lenders that each Borrower's maximum Obligations shall
be, but not in excess of: (x) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code on or within one year
from the date on which any of the Obligations are incurred, the maximum
amount that would not otherwise cause the Obligations (or any other
obligations of such Borrower to the Administrative Agent and the
Lenders) to be avoidable or unenforceable against such Borrower under
(A) Section 548 of the Bankruptcy Code or (B) any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such
case or proceeding by virtue of
26
Section 544 of the Bankruptcy Code; or (y) in a case or proceeding
commenced by or against such Borrower under the Bankruptcy Code
subsequent to one year from the date on which any of the Obligations
are incurred, the maximum amount that would not otherwise cause the
Obligations (or any other obligations of such Borrower to the
Administrative Agent and the Lenders) to be avoidable and unenforceable
against such Borrower under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or (z) in a case or
proceeding commenced by or against such Borrower under any law, statute
or regulation other than the Bankruptcy Code (including, without
limitation, any other bankruptcy, reorganization, arrangement,
moratorium, readjustment of debt, dissolution, liquidation or similar
debtor relief laws), the maximum amount that would not otherwise cause
the Obligations (or any other obligations of such Borrower to the
Administrative Agent and the Lenders) to be avoidable or unenforceable
against such Borrower under such law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding.
(iv) The Borrowers acknowledge and agree that they have
requested that the Lenders make credit available to the Borrowers with
each Borrower expecting to derive benefit, directly and indirectly,
from the Advances and other credit extended by the Lenders to the
Borrowers.
2.02 Competitive Bid Loans.
(a) In addition to Revolving Credit Loans, at any time prior
to the Revolving Credit Termination Date and provided no Default or Event of
Default exists hereunder, the Borrowers may, as set forth in this Section 2.02,
request the Lenders to make offers to make Competitive Bid Loans to the
Borrowers in Dollars. The Lenders may, but shall have no obligation to, make
such offers and the Borrowers may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.02. There may be no more
than twenty (20) different Interest Periods, plus one (1) one week Interest
Period for both Revolving Credit Loans and Competitive Bid Loans outstanding at
the same time (for which purpose Interest Periods for each Eurodollar Loan and
each Competitive Bid Loan shall be deemed to be different Interest Periods even
if they are coterminous). The aggregate principal amount of all Outstanding
Credit Obligations, shall not exceed the Total Revolving Credit Commitment at
any time. The aggregate principal amount of all outstanding Competitive Bid
Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit
Commitment at any time.
(b) When either Borrower wishes to request offers to make
Competitive Bid Loans, it shall give the Administrative Agent and the Lenders
notice (a "Competitive Bid Quote Request") to be received no later than 11:00
a.m. Charlotte, North Carolina time on (A) the fourth Business Day prior to the
date of borrowing proposed therein, in the case of a Competitive Bid Quote
Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Business Day prior to the date of borrowing proposed therein, in the case of a
Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate
(or, in any such case, such other time and date as the
27
Borrowers and the Administrative Agent, with the consent of the Required
Lenders, may agree). The Borrowers may request offers to make Competitive Bid
Loans for up to three (3) different Interest Periods in a single notice;
provided that the request for each separate Interest Period shall be deemed to
be a separate Competitive Bid Quote Request for a separate borrowing (a
"Competitive Bid Borrowing") and there shall not be outstanding at any one time
more than six (6) Competitive Bid Borrowings. Each such Competitive Bid Quote
Request shall be substantially in the form of Exhibit I attached hereto and
shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Competitive Bid
Borrowing, which shall be at least $10,000,000 (or in increments of
$1,000,000 in excess thereof) but shall not cause the limits specified
in Section 2.02(a) hereof to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Competitive Bid Quote Request for a
particular Interest Period is seeking quotes for Competitive Bid Loans
at the Absolute Rate or the Eurodollar Competitive Rate;
(v) whether a Borrower shall have the right to prepay
a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are
to be submitted if it is before the proposed date of borrowing (the
date on which such Competitive Bid Quotes are to be submitted is called
the "Quotation Date").
Except as otherwise provided in this Section 2.02(b), no more than two (2)
Competitive Bid Quote Requests shall be given within five (5) Business Days (or
such other number of days as the Borrowers and the Administrative Agent, with
the consent of the Required Lenders, may agree) of any other Competitive Bid
Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid
Quotes, each containing an offer to make a Competitive Bid Loan in response to
any Competitive Bid Quote Request; provided that, if the Borrower's request
under Section 2.02(b) hereof specified more than one Interest Period, such
Lender may make a single submission containing one or more Competitive Bid
Quotes for each such Interest Period. Each Competitive Bid Quote must be
submitted to the Borrowers not later than 9:30 a.m. Charlotte, North Carolina
time on (A) the third Business Day prior to the proposed date of borrowing, in
the case of a Competitive Bid Quote Request for Competitive Bid Loans at the
Eurodollar Competitive Rate or (B) the Quotation Date, in the case of a
Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate
(or, in any such case, such other time and date as the Borrowers and the
Administrative Agent, with the consent of the Required Lenders, may agree)
provided that if NationsBank is receiving quotes as provided in Section 2.02(g),
any Competitive Bid Quote may be submitted by NationsBank (or its applicable
Lending Office) only if NationsBank (or such applicable Lending Office) notifies
the Borrowers of
28
the terms of the offer contained therein not later than 9:15 a.m. Charlotte,
North Carolina time on the Quotation Date. Subject to Articles IV, V and IX
hereof, any Competitive Bid Quote so made shall be irrevocable except with the
consent of the Administrative Agent given on the instructions of the Borrowers.
(ii) Each Competitive Bid Quote shall be
substantially in the form of Exhibit J attached hereto and shall specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Competitive
Bid Loan for which each such offer is being made, which
principal amount shall be at least $5,000,000 (or in
increments of $1,000,000 in excess thereof); provided that the
aggregate principal amount of all Competitive Bid Loans for
which a Lender submits Competitive Bid Quotes may not exceed
the principal amount of the Competitive Bid Borrowing for a
particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote
for Competitive Bid Loans at an Absolute Rate, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Competitive
Bid Loan (the "Absolute Rate");
(D) in the case of a Competitive Bid Quote
for Competitive Bid Loans at the Eurodollar Competitive Rate,
the positive or negative margin to be added to or deducted
from the Interbank Offered Rate; and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the Borrowers, no
Competitive Bid Quote shall contain qualifying, conditional or similar language
or propose terms other than or in addition to those set forth in the applicable
Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may
be conditioned upon acceptance by the Borrowers of all (or some specified
minimum) of the principal amount of the Competitive Bid Loan for which such
Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote
submitted by a Lender that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request shall be disregarded by the Borrowers unless such
subsequent Competitive Bid Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote.
(d) The Borrowers shall (A) in the case of a Competitive Bid
Loan at an Absolute Rate, as promptly as practicable after the Competitive Bid
Quote is submitted (but in any event not later than 10:30 a.m. Charlotte, North
Carolina time on the Quotation Date (or such other time and date as the
Borrowers and the Administrative Agent, with the consent of the Required
Lenders, may
29
agree) or (B) in the case of a Competitive Bid Loan at a Eurodollar Competitive
Rate, the third Business Day prior to the proposed date of borrowing), notify
the Administrative Agent and Lenders of (A) the aggregate principal amount of
the Competitive Bid Borrowing for which Competitive Bid Quotes have been
received as well as the ranges of bids submitted for each Interest Period
requested, (B) the respective principal amounts and Absolute Rates or Eurodollar
Competitive Rates, as the case may be, so offered by each Lender (identifying
the Lender that made each Competitive Bid Quote), and (C) its acceptance or
nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrowers may accept any Competitive Bid Quote in
whole or in part (provided that any Competitive Bid Quote accepted in part shall
be at least $5,000,000 or in increments of $1,000,000 in excess thereof);
provided that:
(i) the aggregate principal amount of each
Competitive Bid Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each
Competitive Bid Borrowing shall be at least $5,000,000 (or an increment
of $1,000,000 in excess thereof) but shall not cause the limits
specified in Section 2.02(a) hereof to be violated;
(iii) except as provided below, acceptance of
Competitive Bid Quotes for any Interest Period may be made only in
ascending order of Absolute Rates or Eurodollar Competitive Rates, as
the case may be, beginning with the lowest rate so offered; and
(iv) the Borrowers may not accept any Competitive Bid
Quote where such Competitive Bid Quote fails to comply with Section
2.02(c)(ii) hereof or otherwise fails to comply with the requirements
of this Agreement (including, without limitation, Section 2.02(a)
hereof).
Any of the conditions above notwithstanding, the Borrowers may, in their sole
discretion, accept a Competitive Bid Quote that does not contain the lowest
Absolute Rate or Eurodollar Competitive Rates, as the case may be, where
acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or
Eurodollar Competitive Rate, as the case may be, would cause the principal
amount of Outstanding Credit Obligations of a Lender or Lenders offering the
lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to
exceed the Total Revolving Credit Commitment.
If Competitive Bid Quotes are made by two or more Lenders with the same
Absolute Rates or Eurodollar Competitive Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which
Competitive Bid Quotes are accepted for the related Interest Period after the
acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or
Eurodollar Competitive Rates, as the case may be, offered by any Lender for such
related Interest Period, the principal amount of Competitive Bid Loans in
respect of which such Competitive Bid Quotes are accepted shall be allocated by
the Borrowers among such Lenders as nearly as possible (in amounts of at least
$1,000,000 or in increments of $100,000 in excess thereof) in proportion to the
aggregate
30
principal amount of such Competitive Bid Quotes. Determinations by the Borrowers
of the amounts of Competitive Bid Loans and the lowest bid after adjustment as
provided in Section 2.02(d)(iii) shall be conclusive in the absence of manifest
error.
(e) Any Lender whose offer to make any Competitive Bid Loan
has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time
on the date specified for the making of such Loan, make the amount of such Loan
available to the applicable Borrower at the applicable Borrower's Account or
otherwise as shall be directed by the Authorized Representative in Dollars and
in immediately available funds.
(f) From time to time, the Borrowers shall furnish such
information to the Administrative Agent as the Administrative Agent may request
relating to the making of Competitive Bid Loans, including the amounts, interest
rates, dates of borrowings and maturities thereof.
(g) The Borrowers may request the Administrative Agent to
receive the Competitive Bid Quotes, in which event the Administrative Agent
shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as
promptly as practicable after the Competitive Bid Quote is submitted (but in no
event later than 10:00 a.m., Charlotte, North Carolina time on the Quotation
Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive
Rate, by 10:00 a.m. Charlotte, North Carolina time on the date a Competitive
Quote is submitted, notify the Borrowers of the terms of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 2.02(c) hereof.
The Administrative Agent's notice to the Borrowers shall specify (A) the
aggregate principal amount of the Competitive Bid Borrowing for which
Competitive Bid Quotes have been received and (B) the respective principal
amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be,
offered by each Lender (identifying the Lender that made each Competitive Bid
Quote). Not later than 10:30 a.m. Charlotte, North Carolina time on (A) the
third Business Day prior to the proposed date of borrowing, in the case of
Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation
Date (or, in any such case, such other time and date as the Borrowers and the
Administrative Agent, with the consent of the Required Lenders, may agree), the
Borrowers shall notify the Administrative Agent of their acceptance or
nonacceptance of the Competitive Bid Quotes so notified to it (and the failure
of the Borrowers to give such notice by such time shall constitute
nonacceptance) and the Administrative Agent shall promptly notify each affected
Lender. Together with each notice of a request for Competitive Bid Quotes, which
each Borrower requires the Administrative Agent to issue pursuant to this
paragraph (g), such Borrower shall pay to the Administrative Agent for the
account of the Administrative Agent a bid administration fee of $1,500.00.
2.03 Payment of Interest. (a) The Borrowers shall pay interest (i) to
the Administrative Agent at the Principal Office for the account of each Lender
on the outstanding and unpaid principal amount of each Revolving Credit Loan
made by such Lender for the period commencing on the date of such Loan until
such Loan shall be due at the Eurodollar Revolver Rate or the Base Rate, as
elected or deemed elected by such Borrower or otherwise applicable to such Loan
as herein provided, (ii) to the Lender at its Lending Office making each
Competitive Bid Loan, at the applicable
31
Absolute Rate or Eurodollar Competitive Rate, as the case may be, and (iii) to
the Administrative Agent in the case of each Swing Line Loan, at the Base Rate;
provided, however, that if any amount shall not be paid when due (at maturity,
by acceleration or otherwise), all amounts outstanding hereunder shall bear
interest thereafter (i) in the case of a Eurodollar Loan, at a rate of interest
per annum of two percent (2%) above the applicable Eurodollar Revolver Rate for
such Eurodollar Loan, (ii) in the case of a Base Rate Loan, at a rate of
interest per annum which shall be two percent (2%) above the Base Rate, and
(iii) in the case of a Competitive Bid Loan, at a rate of interest per annum
which shall be two percent (2%) above the Absolute Rate or Eurodollar
Competitive Rate, as the case may be, for such Competitive Bid Loan, or (in each
case) the maximum rate permitted by applicable law, whichever is lower, from the
date such amount was due and payable until the date such amount is paid in full.
(b) Interest on the outstanding principal balance of each Loan shall be
computed on the basis of (x) in the case of a Eurodollar Loan or a Competitive
Bid Loan at the Eurodollar Competitive Rate, a year of 360 days and calculated
for the actual number of days elapsed and (y) in the case of a Base Rate Loan, a
year of 365-366 days and calculated for the actual number of days elapsed.
Interest on the outstanding principal balance of each Loan shall be paid (a)
quarterly in arrears, such payment to be made not later than the third (3rd)
Business Day of each April, July, October and January commencing on the third
(3rd) Business Day of July 1997, on each Base Rate Loan, (b) on the last day of
the applicable Interest Period for each Eurodollar Loan and Competitive Bid
Loan, but in no event less frequently than at the end of each three month period
and (c) upon payment in full of the principal amount of such Loan at the
Revolving Credit Termination Date.
(c) From the Closing Date until delivery of a Compliance Certificate
for the period ending December 31, 1998, the Applicable Eurodollar Margin,
Facility Fee and Utilization Fee shall be determined by using the amounts set
forth in Tier IV of the Pricing Grid. For each period beginning on the date of
receipt by the Administrative Agent of a Compliance Certificate in respect of a
quarterly fiscal period of the Company ending on or after December 31, 1998 and
ending on the date next following the date of receipt by the Administrative
Agent of a Compliance Certificate in respect of a subsequent fiscal quarter the
Applicable Eurodollar Margin, Facility Fee and Utilization Fee shall be
determined based upon the ratio of Consolidated Funded Indebtedness to
Consolidated Total Capitalization. Any change in the Eurodollar Margin, Facility
Fee and Utilization Fee, if any, shall become effective on the first Business
Day next following receipt of a Compliance Certificate. Notwithstanding the
foregoing, if the Company shall receive a Rating from both S&P and ▇▇▇▇▇'▇, then
upon receipt by the Administrative Agent of evidence of the Ratings, the
Applicable Eurodollar Margin, Facility Fee and Utilization Fee shall be
determined by its then Ratings as set forth on the Pricing Grid and subsequent
changes in the Applicable Eurodollar Margin, Facility Fee and Utilization Fee,
if any, shall become effective on the day next following the receipt by the
Agent of evidence of such change in Rating.
2.04 Payment of Principal. The principal amount of the Revolving Credit
Outstandings and all Swing Line Outstandings shall be due and payable to the
Administrative Agent for the benefit of each Lender in full on the Revolving
Credit Termination Date, or earlier as herein expressly provided. The principal
amount of all Competitive Bid Loans shall be due and payable to the Lender
32
making such Competitive Bid Loan in full on the last day of the Interest Period
therefor, or earlier as herein expressly provided. The principal amount of
Eurodollar Loans may only be prepaid at the end of the applicable Interest
Period, unless the Borrowers shall pay to the Administrative Agent for the
account of the Lenders the amount, if any, required under Section 4.04. The
principal amount of Competitive Bid Loans may only be prepaid at the end of the
applicable Interest Period, unless (i) the applicable Borrower shall have
retained in the Competitive Bid Quote Request with respect to such Competitive
Bid Loans the right of prepayment, and (ii) the applicable Borrower shall have
paid to the Lender making such Competitive Bid Loans or to the Administrative
Agent, as applicable, the amounts, if any, required under Section 4.04. Each
Borrower shall furnish the Administrative Agent telephonic notice of its
intention to make a principal payment (including Competitive Bid Loans) prior to
11:00 A.M. Charlotte, North Carolina time on the date of such payment. All
payments of principal on Loans other than Competitive Bid Loans and Swing Line
Loans shall be in the amount of $10,000,000 or such greater amount which is an
integral multiple of $1,000,000.
2.05 Non-Conforming Payments. (a) Each payment of principal (including
any prepayment) and payment of interest (other than principal and interest on
Competitive Bid Loans which shall be paid to the Lender making such Loans) shall
be made to the Administrative Agent at the Principal Office, for the account of
each Lender's applicable Lending Office, in Dollars and in immediately available
funds before 12:30 P.M. Charlotte, North Carolina time on the date such payment
is due. The Administrative Agent may, but shall not be obligated to, debit the
amount of any such payment which is not made by such time to any ordinary
deposit account, if any, of either Borrower with the Administrative Agent.
(b) The Administrative Agent shall deem any payment by or on behalf of
the Borrowers hereunder that is not made both (a) in Dollars and in immediately
available funds and (b) prior to 12:30 P.M. Charlotte, North Carolina time on
the date payment is due to be a non-conforming payment. Any such payment shall
not be deemed to be received by the Administrative Agent until the time such
funds become available funds. Non-conforming payments may constitute or become a
Default or Event of Default. The Administrative Agent shall give prompt
telephonic notice to the Authorized Representative and each of the Lenders
(confirmed in writing) if any payment is non-conforming. Interest shall continue
to accrue on any principal as to which a non-conforming payment is made until
such funds become available funds (but in no event less than the period from the
date of such payment to the next succeeding Business Day) at the respective
rates of interest per annum specified in Section 2.03(a) in respect of late
payments of interest, from the date such amount was due and payable until the
date such amount is paid in full (but in no event less than the period from the
date of such payment to the next succeeding Business Day).
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
2.06 Borrowers' Accounts. Each Borrower shall continuously maintain its
Borrower's Account for the purposes herein contemplated.
33
2.07 Notes. (a) Revolving Credit Loans made by each Lender, shall be
evidenced by, and be repayable with interest in accordance with the terms of,
the Revolving Credit Note payable to the order of such Lender in the amount of
its Applicable Commitment Percentage of the Total Revolving Credit Commitment,
which Revolving Credit Note shall be dated the Closing Date or such later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by each Borrower.
(b) Competitive Bid Loans made by any Lender shall be evidenced by, and
be repayable with interest in accordance with the terms of, the Competitive Bid
Note payable to the order of such Lender in the amount of the Total Revolving
Credit Commitment (but the aggregate outstanding principal amount of Competitive
Bid Loans may not at any time exceed one hundred percent (100%) of the Total
Revolving Credit Commitment) which shall be dated the Closing Date or such later
date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrowers.
(c) Swing Line Loans made by NationsBank shall be evidenced by the
Swing Line Note in the principal amount of $50,000,000, and shall be repayable
with interest in accordance with the terms of the Swing Line Note dated the
Closing Date and duly executed and delivered by each Borrower.
2.08 Pro Rata Payments. Except as otherwise provided herein, (a) each
payment and prepayment on account of the principal of and interest on the Loans
(other than Competitive Bid Loans and Swing Line Loans) and the fees described
in Sections 2.12 and 2.13 hereof shall be made to the Administrative Agent in
the aggregate amount payable to the Lenders for the account of the Lenders pro
rata based on their Applicable Commitment Percentages, (b) each payment of
principal and interest on the Competitive Bid Loans shall be made to (i) the
Administrative Agent for the account of the respective Lender making such
Competitive Bid Loan if the Borrowers have elected that the Administrative Agent
act under Section 2.02(g) hereof and (ii) otherwise directly to the Lender
making such Competitive Bid Loan, (c) each payment of principal and interest on
Swing Line Loans shall be made to the Administrative Agent for the account of
NationsBank, (d) all payments to be made by the Borrowers for the account of
each of the Lenders on account of principal, interest and fees, shall be made
without set-off or counterclaim, and (e) the Administrative Agent will
distribute such payments when received to the Lenders as provided for herein and
subject to Section 4.06.
2.09 Reductions. The Borrowers shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
twice during each Fiscal Year), upon not less than three (3) Business Days
irrevocable written notice to the Administrative Agent to reduce the Total
Revolving Credit Commitment. The Administrative Agent shall give each Lender,
within one (1) Business Day, telephonic notice (confirmed in writing) of such
reduction. Each such reduction shall be in the aggregate amount of $10,000,000
or such greater amount which is in an integral multiple of $1,000,000, and shall
permanently reduce the Total Revolving Credit Commitment of the Lenders pro
rata. No such reduction shall be permitted that results in the payment of any
Eurodollar Loan other than on the last day of the Interest Period of such Loan
unless
34
such prepayment is accompanied by amounts due, if any, under Section 4.04. Each
reduction of the Total Revolving Credit Commitment shall be accompanied by
payment of the Revolving Credit Notes to the extent that the aggregate principal
amount of Outstanding Credit Obligations exceeds the Total Revolving Credit
Commitment after giving effect to such reduction, together with accrued and
unpaid interest on the amounts prepaid.
2.10 Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrowers shall be
reduced by the aggregate amount of all Swing Line Outstandings, all Outstanding
Letters of Credit and all outstanding Competitive Bid Loans.
2.11 Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth below and in Sections 4.01(b), 4.02 and 4.03
hereof, the Borrowers may:
(a) upon notice to the Administrative Agent on or before 10:30 A.M.
Charlotte, North Carolina time on any Business Day convert all or a part of
Eurodollar Loans that are Revolving Credit Loans to Base Rate Loans on the last
day of the Interest Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing and on three (3) Business Days' notice to the Administrative
Agent on or before 10:30 A.M. Charlotte, North Carolina time:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Loans to begin on the last day of the current Interest
Period for such Eurodollar Loans; or
(ii) convert Base Rate Loans (other than Swing Line Loans) to
Eurodollar Loans on any Business Day.
Notice of any such elections or conversions shall specify the effective
date of such election or conversion and, with respect to Eurodollar Loans, the
Interest Period to be applicable to the Loan as continued or converted. Each
election and conversion pursuant to this Section 2.11 shall be subject to the
limitations on Eurodollar Loans set forth in the definition of "Interest Period"
herein and in Article IV hereof. All such continuations or conversions of Loans
shall be effected pro rata based on the Applicable Commitment Percentages of the
Lenders.
2.12 Fees. For the period beginning on the Closing Date and ending on
the Revolving Credit Termination Date (or such earlier date on which the
Revolving Credit Facility has terminated), the Borrowers agree to pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages of the Revolving Credit Facility, the
quarterly portion of the Facility Fee and Utilization Fee. Such payments of fees
provided for in this Section 2.12 shall be payable quarterly in arrears, such
payments to be made not later than the third (3rd) Business Day of each April,
July, October and January beginning on the third (3rd) Business Day of July 1997
to and on the Revolving Credit Termination Date (or such earlier date on which
the Revolving Credit Facility has terminated). Notwithstanding the foregoing, so
long as any Lender
35
fails to make available any portion of its Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive payment of its pro rata
share of such fee until such Lender shall make available such portion. Such fee
shall be calculated on the basis of a year of 365-366 days for the actual number
of days elapsed.
2.13 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing, in the event any Lender shall fail to
advance funds to the Borrowers as herein provided, the Administrative Agent may
in its discretion, but shall not be obligated to, advance under the applicable
Note in its favor as a Lender all or any portion of such amount or amounts
(each, a "deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same manner and at
the same interest rate or rates to which such other Lender would have been
entitled had it made such advance under its applicable Note; provided that, upon
payment to the Administrative Agent from such other Lender of the entire
outstanding amount of each such deficiency advance, together with accrued and
unpaid interest thereon, from the most recent date or dates interest was paid to
the Administrative Agent by the Borrowers on each Loan comprising the deficiency
advance at the interest rate per annum for overnight borrowing by the
Administrative Agent from the Federal Reserve Bank, then such payment shall be
credited against the applicable Note of the Administrative Agent in full payment
of such deficiency advance and the Borrowers shall be deemed to have borrowed
the amount of such deficiency advance from such other Lender as of the date such
deficiency advance is made.
2.14 Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility, the Competitive Bid Facility, the Swing Line and the
Letters of Credit issued pursuant to the Letter of Credit Facility shall be used
by the Company and its Subsidiaries to finance Permitted Acquisitions and for
working capital and general corporate needs of the Company and its Subsidiaries.
2.15 Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Lenders, NationsBank, in its individual capacity
and not as Administrative Agent, and subject to the provisions of Section
2.15(c), shall make available Swing Line Loans to either Borrower prior to the
Revolving Credit Termination Date. NationsBank shall not make any Swing Line
Loan pursuant hereto (i) if to the actual knowledge of NationsBank the Borrowers
are not in compliance with all the conditions to the making of Loans set forth
in this Agreement, (ii) if after giving effect to such Swing Line Loan, the
Swing Line Outstandings exceed $50,000,000, or (iii) if after giving effect to
such Swing Line Loan, the principal amount of Outstanding Credit Obligations
exceeds the Total Revolving Credit Commitment. Swing Line Loans shall be limited
to Base Rate Loans unless NationsBank and the Borrowers shall agree otherwise.
The Borrowers may borrow, repay and reborrow under this Section 2.15. Unless
notified to the contrary by NationsBank, borrowings under the Swing Line shall
be made in the minimum amount of $1,000,000 or, if greater, in amounts which are
integral multiples
36
of $100,000, or in the amount necessary to effect a Base Rate Refunding Loan,
upon irrevocable telephonic notice, by an Authorized Representative of Borrowers
made to NationsBank not later than 12:30 P.M. on the Business Day of the
requested borrowing. The applicable Borrower shall provide the Administrative
Agent written confirmation of each such telephonic notice on the same day by
telefacsimile transmission in the form of a Borrowing Notice. Each such
Borrowing Notice shall specify the amount of the borrowing and the date of
borrowing, and shall be in the form of Exhibit D-2, with appropriate insertions.
Unless notified to the contrary by NationsBank, each repayment of a Swing Line
Loan shall be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings. If either Borrower instructs
NationsBank to debit any demand deposit account of such Borrower in the amount
of any payment with respect to a Swing Line Loan, or NationsBank otherwise
receives repayment, after 12:30 P.M. on a Business Day, such payment shall be
deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate or at any
rate otherwise mutually agreed upon by NationsBank and the Borrowers. The
interest payable on Swing Line Loans is solely for the account of NationsBank,
and all accrued and unpaid interest on Swing Line Loans shall be payable on the
dates and in the manner provided in Sections 2.03 and 2.04 with respect to
interest on Base Rate Loans. The Swing Line Outstandings shall be evidenced by
the Note delivered to NationsBank pursuant to Section 2.07(c).
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount
determined with reference to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by NationsBank, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to NationsBank its purchase price therefor in an amount equal
to its Participation therein. Any Advance made by a Lender pursuant to demand of
NationsBank of the purchase price of its Participation shall be deemed (i)
provided that the conditions to making Revolving Credit Loans shall be
satisfied, a Base Rate Refunding Loan under Section 2.01 until the applicable
Borrower converts such Base Rate Loan in accordance with the terms of Section
2.11, and (ii) in all other cases, the funding by each Lender of the purchase
price of its Participation in such Swing Line Loan. The obligation of each
Lender to so provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event
of Default or any other occurrence or event.
Either Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.01 in an amount sufficient to repay
Swing Line Outstandings on any date and the Administrative Agent shall provide
from the proceeds of such Advance to NationsBank the amount necessary to repay
such Swing Line Outstandings (which NationsBank shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrowers pursuant to Section 2.01(c)(iii). The
proceeds of such Advances shall be paid to NationsBank for application to the
Swing Line Outstandings and the Lenders shall then be deemed to have made Loans
in the amount of such Advances. The Swing Line shall continue in effect until
the Revolving Credit Termination Date, at which time all Swing Line Outstandings
and accrued interest thereon shall be due and payable in full.
37
ARTICLE III
Letters of Credit
3.01 Letters of Credit. The Issuing Banks agree, subject to the terms
and conditions of this Agreement, upon request and for the account of the
Company, to issue from time to time Letters of Credit upon delivery to the
Issuing Bank of an Application and Agreement for Letter of Credit in form and
content acceptable to such Issuing Bank; provided, that the Outstanding Letters
of Credit shall not exceed the Total Letter of Credit Commitment. No Letter of
Credit shall be issued by an Issuing Bank with an expiry date or payment date
occurring subsequent to the fifth Business Day preceding the Revolving Credit
Termination Date. No Issuing Bank shall be required to issue any Letter of
Credit if the principal amount of Outstanding Credit Obligations when added to
the face amount of any requested Letter of Credit exceeds the Total Revolving
Credit Commitment. At any one time during the term of this Agreement, not more
than four (4) different Lenders (not including any Existing Issuing Banks) shall
be allowed to act as an Issuing Bank.
3.02 Reimbursement.
(a) The Company hereby unconditionally agrees immediately to
pay to the applicable Issuing Bank on demand at its Lending Office all amounts
required to pay all drafts drawn or purporting to be drawn under any Letters of
Credit and all reasonable expenses incurred by an Issuing Bank in connection
with the Letters of Credit and in any event and without demand to place in
possession of the applicable Issuing Bank (which shall include Advances under
the Revolving Credit Facility if permitted by Section 2.01 hereof) sufficient
funds to pay all debts and liabilities arising under any Letter of Credit. The
Company's obligations to pay an Issuing Bank under this Section 3.02, and such
Issuing Bank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever. Each Issuing Bank
agrees to give the Company prompt written notice of any request for a draw under
a Letter of Credit, but failure to provide such notice shall not affect the
parties' Obligations with respect thereto. Each Issuing Bank may charge any
account the Company may have with it for any and all amounts such Issuing Bank
pays under a Letter of Credit, plus charges and reasonable expenses as from time
to time agreed to by such Issuing Bank and the Company; provided that to the
extent permitted by Section 2.01(c)(iv), such amounts shall be paid pursuant to
Swing Line Loans or Advances under the Revolving Credit Facility. The Company
agrees that an Issuing Bank may, in its sole discretion, accept or pay, as
complying with the terms of any Letter of Credit, any drafts or other documents
otherwise in order which may be signed or issued by an administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, attorney in fact or other legal representative
of a party who is authorized under such Letter of Credit to draw or issue any
drafts or other documents. The Company agrees to pay an Issuing Bank interest on
any amounts not paid when due hereunder at the Base Rate plus two percent (2%)
per annum, or the maximum rate permitted by applicable law, if lower.
(b) In accordance with the provisions of Section 2.01 hereof,
each Issuing Bank shall notify the Administrative Agent (and shall also notify
the Company), but failure to provide such
38
notification shall not affect the parties' Obligations with respect thereto, of
any drawing under any Letter of Credit as promptly as practicable following the
receipt by such Issuing Bank of such drawing.
(c) Each Lender (other than the applicable Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of such Issuing Bank in respect of each Letter of Credit in an amount
determined with reference to such Lender's Applicable Commitment Percentage of
such liability, and to the extent that the Company is obligated to pay such
Issuing Bank under Section 3.02(a), each Lender (other than the Issuing Bank)
shall absolutely, unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to such Issuing Bank as hereinafter described,
its Applicable Commitment Percentage of the liability of such Issuing Bank under
such Letter of Credit. Prior to the Revolving Credit Termination Date, each
Lender (including any Issuing Bank in its capacity as a Lender) shall, subject
to the terms and conditions of Article II, make a Revolving Credit Loan bearing
interest at the Base Rate to the Company by paying to the Administrative Agent
for the account of the applicable Issuing Bank at the Principal Office in
Dollars and in immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit, all as described
and pursuant to Section 2.01(c)(iv). With respect to drawings under any of the
Letters of Credit, each Lender, upon receipt from the Administrative Agent of
notice of a drawing in the manner described in Section 2.01(c)(iv), shall
promptly pay to the Administrative Agent for the account of the applicable
Issuing Bank, prior to the applicable time set forth in Section 2.01(c)(iv), its
Applicable Commitment Percentage of such drawing. Simultaneously with the making
of each such payment by a Lender to such Issuing Bank, such Lender shall,
automatically and without any further action on the part of such Issuing Bank or
such Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest) in the related
Reimbursement Obligation of the Company. The Reimbursement Obligations of the
Company shall be immediately due and payable whether by Advances made in
accordance with Section 2.01(c)(iv) or otherwise. Each Lender's obligation to
make payment to the Administrative Agent for the account of an Issuing Bank
pursuant to this Section 3.02(c), and the right of such Issuing Bank to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender is obligated to pay but does
not pay amounts to the Administrative Agent for the account of an Issuing Bank
in full upon such request as required by this Section 3.02(c), such Lender
shall, on demand, pay to the Administrative Agent for the account of such
Issuing Bank interest on the unpaid amount for each day during the period
commencing on the date of notice given to such Lender pursuant to Section
2.01(b) until such Lender pays such amount to the Administrative Agent for the
account of such Issuing Bank in full at the interest rate per annum for
overnight borrowing by the Administrative Agent from the Federal Reserve Bank in
Richmond, Virginia.
(d) As soon as practical following the issuance of a Letter of
Credit, the applicable Issuing Bank shall notify the Administrative Agent, and
the Administrative Agent shall notify each Lender, of the date of issuance of
such Letter of Credit, the stated amount and the expiry date of such Letter of
Credit. Promptly following the end of each calendar quarter, each Issuing Bank
shall deliver to the Administrative Agent, and the Administrative Agent shall
deliver to each
39
Lender, a notice describing the aggregate undrawn amount of all Letters of
Credit at the end of such quarter. Upon the request of any Lender from time to
time, each Issuing Bank shall deliver to the Administrative Agent, and the
Administrative Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Outstanding Letter of
Credit.
(e) Each issuance by an Issuing Bank of a Letter of Credit
shall, in addition to the conditions precedent set forth in Section 5.01 hereof,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of such Issuing Bank
with respect to similar letters of credit, and the Company shall have executed
and delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto, or if the Issuing Bank shall elect
by express reference in an affected Letter of Credit, the International Chamber
of Commerce International Standby Practices commonly referred to as "ISP98", or
any subsequent amendment or revision of either thereof.
(f) Without duplication of Section 10.07 hereof, the Company
hereby agrees to defend, indemnify and hold harmless each Issuing Bank, each
other Lender and the Administrative Agent from and against any and all claims
and damages, losses, liabilities, reasonable costs and expenses which such
Issuing Bank, such other Lenders or the Administrative Agent may incur (or which
may be claimed against such Issuing Bank, such other Lenders or the
Administrative Agent) by any Person by reason of or in connection with the
issuance or transfer of or payment or failure to pay under any Letter of Credit;
provided that the Company shall not be required to indemnify an Issuing Bank,
any other Lender or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, (i) caused
by the willful misconduct or gross negligence of the party to be indemnified
after final adjudication thereof or (ii) caused by the failure of an Issuing
Bank to pay under any Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree
or failure to pay is permitted under the terms of the applicable Letter of
Credit. The provisions of this Section 3.02(f) shall survive repayment of the
Obligations, the occurrence of the Revolving Credit Termination Date, and
expiration or termination of this Agreement.
(g) Without limiting the Company's rights to raise claims as
set forth in Section 3.02(f) above, the obligation of the Company to immediately
reimburse an Issuing Bank for drawings made under Letters of Credit shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and such Letters of Credit and the
related applications for any Letter of Credit, including, under the following
circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
40
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the terms of this
Agreement) or other rights which the Company may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other person or entity, whether in
connection with the Loan Documents, the Related Documents or any unrelated
transaction;
(iv) any breach of contract or other dispute between
the Company and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee may be
acting), the Administrative Agent, the Lenders or any other Person;
(v) any draft, statement 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 whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or agreed to by the
Administrative Agent, with or without notice to or approval by the Company in
respect of any of the Company's Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release an
Issuing Bank or any other Lender of any liability for actual loss arising as a
result of its gross negligence or willful misconduct or out of the wrongful
dishonor by an Issuing Bank of a proper demand for payment made under and
strictly complying with the terms of any Letter of Credit.
3.03 Letter of Credit Fee. The Company agrees to pay (i) to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount available to be
drawn on each Outstanding Letter of Credit at a rate equal to the Applicable
Margin as in effect from time to time, and (ii) to the Issuing Bank, as issuer
of each Letter of Credit, an issuance fee in such amount as may be agreed by an
Issuing Bank and the Company from time to time. Such payments of fees provided
for in this Section 3.03 shall be due with respect to each Letter of Credit
quarterly in arrears, such payment to be made not later than the third (3rd)
Business Day of each April, July, October and January, commencing on the first
such date following the issuance of a Letter of Credit under this Agreement.
Such fees shall be calculated on the basis of a year of 365-366 days for the
actual number of days elapsed.
41
3.04 Administrative Fees. The Company shall pay to any Issuing Bank
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as such Issuing Bank and the Company
shall agree from time to time.
42
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs. (a) The Borrowers shall promptly pay to the
Administrative Agent for the account of a Lender from time to time, without
duplication, such amounts as such Lender may determine to be necessary to
compensate it for any costs incurred by such Lender which it determines are
attributable to its making or maintaining any Loan or its obligation to make any
Loans, or the issuance or maintenance by an Issuing Bank of or any other
Lender's Participation in any Letter of Credit issued hereunder, or any
reduction in any amount receivable by such Lender under this Agreement, the
Notes or the Letters of Credit in respect of any of such Loans or such
obligation or the Letters of Credit, including reductions in the rate of return
on a Lender's capital (such increases in costs and reductions in amounts
receivable and returns being herein called "Additional Costs"), resulting from
any Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or the Notes in respect of any of
such Loans or Letters of Credit (other than taxes imposed on or measured by the
income, revenues or assets of any Lender); or (ii) imposes or modifies any
reserve, special deposit, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender (other than any such reserve, deposit or requirement reflected in the
Prime Rate, the Federal Funds Effective Rate, the Eurodollar Revolver Rate or
the Eurodollar Competitive Rate, in each case computed in accordance with the
respective definitions of such terms set forth in Section 1.01 hereof); or (iii)
has or would have the effect of reducing the rate of return on capital of any
such Lender or corporation controlling such Lender to a level below that which
the Lender or corporation controlling such Lender could have achieved but for
such Regulatory Change (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy); or (iv) imposes any
other condition adversely affecting the Administrative Agent or the Lenders
under this Agreement, the Notes or the issuance or maintenance of, or any
Lender's Participation in, the Letters of Credit (or any of such extensions of
credit or liabilities). Each Lender will notify the Borrowers and the
Administrative Agent of any event occurring after the Closing Date which would
entitle it to compensation pursuant to this Section 4.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
the Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans or Competitive Bid Loans at the Eurodollar Competitive Rate is
determined as provided in this Agreement or a category of extensions of credit
or other assets of any Lender which includes Eurodollar Loans or Competitive Bid
Loans at the Eurodollar Competitive Rate (by way of illustration only and not
limitation, an increase in reserve requirements on a Lender's eurodollar deposit
liabilities above a specified dollar amount percentage of its capital) or (ii)
becomes subject to restrictions on the amount of such a category of liabilities
or assets which it may hold, then, if the Lender so elects by notice to the
other Lenders and the Borrowers, the obligation hereunder of such Lender to
make, and to convert Base Rate Loans into, Eurodollar Loans that are the subject
of such
43
restrictions shall be suspended until the date such Regulatory Change ceases to
be in effect and either Borrower shall, on the last day(s) of the then current
Interest Period(s) for outstanding Eurodollar Loans convert such Eurodollar
Loans into Base Rate Loans; provided, however, that the suspension of such
obligation and the conversion of any Eurodollar Loans into Base Rate Loans shall
apply only to any Lender who is affected by such restrictions and who has
provided such notice to the other Lenders, and the obligation of the other
Lenders to make, and to convert Base Rate Loans into Eurodollar Loans shall not
be affected by such restrictions. In the event that the obligation of some, but
not all of the Lenders to make, or to convert Base Rate Loans into Eurodollar
Loans or Competitive Bid Loans at the Eurodollar Competitive Rate is suspended,
then any request by either Borrower during the pendency of such suspension for a
Eurodollar Loan or Competitive Bid Loans at the Eurodollar Competitive Rate
shall be deemed a request for such Eurodollar Loan or Competitive Bid Loans at
the Eurodollar Competitive Rate from the Lender(s) not subject to such
suspension and for a Base Rate Loan or Competitive Bid Loan at an Absolute Rate
from the Lender(s) who are subject to such suspension, as to Eurodollar Loans
and Base Rate Loans, in each case in the respective amounts based on the
Lenders' respective Revolving Credit Commitments.
(c) Determinations by any Lender for purposes of this Section 4.01 of
the effect of any Regulatory Change on its costs of making or maintaining, or
being committed to make, Loans or by an Issuing Bank as issuer of any Letter of
Credit of the effect of any Regulatory Change on its costs in connection with
the issuance or maintenance of, or any other Lender's Participation in, any
Letter of Credit issued hereunder, or on amounts receivable by any Lender in
respect of Loans or Letters of Credit, and of the additional amounts required to
compensate the Lender in respect of any Additional Costs, shall be made on a
reasonable basis taking into account such Lender's reasonable policies as to the
allocation of capital, costs and other items. The Lender requesting such
compensation shall furnish to the Borrowers and the Administrative Agent an
explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.02 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Loan or Competitive Bid Loan at a Eurodollar Competitive Rate for
any Interest Period, the Administrative Agent or, with respect to a Competitive
Bid Loan at the Eurodollar Competitive Rate, any Lender determines (which
determination made on a reasonable basis shall be conclusive absent manifest
error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definitions of a Eurodollar Revolver Rate or
Eurodollar Competitive Rate in Section 1.01 hereof are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such Eurodollar Loan
or Competitive Bid Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Interbank Offered Rate" in Section 1.01 hereof upon the
basis of which the Eurodollar Revolver Rate or Eurodollar Competitive
Rate for such Interest Period is to be determined do not adequately
reflect the cost to the Lenders, or in the case of a Competitive Bid
Loan, to the Lender
44
making such Loan of making or maintaining such Eurodollar Loan or
Competitive Bid Loan for such Interest Period (which determination
shall be made on a reasonable basis by the Administrative Agent or such
Lender, as the case may be, and the Person making such determination
shall furnish the Borrowers evidence of the facts leading to such
determination);
then the Administrative Agent or Lender, as the case may be, shall give the
Borrowers prompt notice thereof, and so long as such condition remains in
effect, the Lenders shall be under no obligation to make Eurodollar Loans or
Competitive Bid Loans at the Eurodollar Competitive Rate that are subject to
such condition, or to convert Loans into Eurodollar Loans, and either Borrower
shall on the last day(s) of the then current Interest Period(s) for outstanding
Eurodollar Loans, as applicable, convert such Eurodollar Loans into another
Eurodollar Loan which is not subject to the same or similar condition, or Base
Rate Loans. The Administrative Agent or such Lender, as the case may be, shall
give the Borrowers notice describing in reasonable detail any event or condition
described in this Section 4.02 promptly following the determination by the
Administrative Agent or such Lender, as the case may be, that the availability
of Eurodollar Loans or Competitive Bid Loans at a Eurodollar Competitive Rate
is, or is to be, suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender to honor its obligation to
make or maintain Eurodollar Loans or Competitive Bid Loans at a Eurodollar
Competitive Rate hereunder, then such Lender shall promptly notify the Borrowers
thereof (with a copy to the Administrative Agent) and such Lender's obligation
to make or continue Eurodollar Loans or Competitive Bid Loans at a Eurodollar
Competitive Rate, or convert Base Rate Loans into Eurodollar Loans, shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans or Competitive Bid Loans at a Eurodollar Competitive Rate, and such
Lender's outstanding Eurodollar Loans shall be converted into Base Rate Loans in
accordance with Section 2.11 hereof.
4.04 Compensation. The Borrowers shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be sufficient
(in the reasonable determination of Lender) to compensate it for any loss, cost
or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Loan
or Competitive Bid Loan at a Eurodollar Competitive Rate on a date
other than the last day of the Interest Period for such Eurodollar Loan
or Competitive Bid Loan at a Eurodollar Competitive Rate, including
without limitation any conversion required pursuant to this Article IV,
the amount of such compensation being the positive difference, if any,
between the Interbank Offered Rate being paid with respect to such
Loans and the Interbank Offered Rate which would be payable on a new
Loan of like amount and for the remaining Interest Period made on the
date of such payment, prepayment or conversion; or
(b) any failure by either Borrower to borrow, convert or
prepay a Eurodollar Loan or Competitive Bid Loan at a Eurodollar
Competitive Rate on the date for such borrowing, conversion or
prepayment specified in the relevant Borrowing Notice, Competitive Bid
45
Quote Request, interest rate selection notice or prepayment notice
under Article II hereof, the amount of such compensation to include,
without limitation, an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount not
borrowed for the period from the date of such failure to borrow to the
last day of the then current Interest Period for such Loan at the
applicable rate of interest for such Eurodollar Loan or Competitive Bid
Loan at a Eurodollar Competitive Rate provided for herein over (ii) the
Interbank Offered Rate for Dollar deposits of amounts comparable to
such principal amount and maturities comparable to such period.
A determination of a Lender as to the amounts payable pursuant to this Section
4.04 shall be conclusive, provided that such determinations are made on a
reasonable basis. The Lender requesting compensation under this Section 4.04
shall furnish to the Borrowers and the Administrative Agent calculations in
reasonable detail setting forth such Lender's determination of the amount of
such compensation.
4.05 Alternate Loan and Lender. In the event any Lender suspends the
making of any Eurodollar Loan or any Competitive Bid Loan at the Eurodollar
Competitive Rate pursuant to this Article IV (herein a "Restricted Lender"), the
Restricted Lender's Applicable Commitment Percentage of such Eurodollar Loans or
such Competitive Bid Loans shall bear interest at either the Base Rate, the
Eurodollar Revolver Rate or the Eurodollar Competitive Rate for which the
suspension does not apply, as selected by the Borrowers, until the Restricted
Lender once again makes available the applicable Eurodollar Loan or Competitive
Bid Loan at the Eurodollar Competitive Rate. Notwithstanding the provisions of
Section 2.03(b), interest shall be payable to the Restricted Lender at the time
and manner as paid to those Lenders making available Eurodollar Loans or
Competitive Bid Loans at the Eurodollar Competitive Rate. If the obligation of
any Lender to make Eurodollar Loans or Competitive Bid Loans at the Eurodollar
Competitive Rate is suspended, the Borrowers may, with respect to such Lender,
elect to terminate this Agreement, and in connection therewith, not to borrow at
the Base Rate as provided above; provided, that the Borrowers notify such Lender
through the Administrative Agent of such election at least three Business Days
before any date fixed for such borrowing and (i) repay all of such Lender's
outstanding Loans plus all accrued interest, commitment fees and other amounts
owing to, but not including, the date of repayment at the end of the respective
Interest Periods applicable thereto, and (ii) selects, with the consent of the
Administrative Agent, which shall not be unreasonably withheld, an assignee
which shall assume all the rights and obligations of such Lender as to which
this Agreement has been terminated. Upon receipt by the Administrative Agent of
such notice and the assignment to and assumption of the Revolving Credit
Commitment by a replacement bank, the Revolving Credit Commitment of such Lender
shall terminate.
4.06 Taxes. All payments by the Borrowers of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between a Lender or the Administrative Agent
and the jurisdiction imposing
46
such taxes (other than a connection arising solely by virtue of the activities
of such Lender or the Administrative Agent pursuant to or in respect of this
Agreement or any other Loan Document), (iii) any withholding taxes payable with
respect to payments hereunder or under any other Loan Document under laws
(including, without limitation, any statute, treaty, ruling, determination or
regulation) in effect on the Closing Date, (iv) any taxes imposed on or measured
by any Lender's assets, net income, receipts or branch profits and (v) any taxes
arising after the Closing Date solely as a result of or attributable to Lender
changing its designated lending office after the date such Lender becomes a
party hereto (such non-excluded items being collectively called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrowers hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrowers will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the
Lender such additional amount or amounts as is necessary to ensure that
the net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or
deduction been required.
Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto, such
Person shall deliver to the Borrowers and the Administrative Agent such
certificates, documents or other evidence, as required by the Code or Treasury
Regulations issued pursuant thereto, properly completed, currently effective and
duly executed by such Lender or participant establishing that such payment is
(i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code because such
payment is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt from
United States Federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
If the Borrowers shall fail to pay any Taxes when due to the
appropriate taxing authority or shall fail to remit to the Administrative Agent,
for the account of the respective Lender, the required receipts or other
required documentary evidence, the Borrowers shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 4.06, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrowers.
4.07 Replacement Lenders. The Borrowers may, in their sole discretion,
on ten (10) Business Days' prior written notice to the Administrative Agent and
a Lender, cause such Lender
47
to (and such Lender shall) assign pursuant to Section 11.01 hereof, all of its
rights and obligations under this Agreement (other than with respect to
outstanding Competitive Bid Loans) to an Eligible Assignee designated by the
Borrowers which is willing to become a Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender, together with
any accrued but unpaid interest on such Loans, any accrued but unpaid fees with
respect to such Lender's Revolving Credit Commitment and any other amounts
payable to such Lender under this Agreement; provided, that any expenses or
other amounts which would be owing to such Lender pursuant to any
indemnification provision hereunder shall be payable by the Borrowers as if the
Borrowers had prepaid the Loans of such Lender rather than such Lender having
assigned its interest thereunder. The Borrowers or the Eligible Assignee under
this Section shall pay the applicable processing fee under Section 11.01.
48
ARTICLE V
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit.
The obligation of the Lenders to continue to make Advances and of the Issuing
Banks to continue to issue Letters of Credit is subject to the conditions
precedent that the Administrative Agent shall have received on or before the
Closing Date, in form and substance satisfactory to the Administrative Agent and
the Lenders, the following:
(a) executed originals of each of this Agreement, the Notes
and the other Loan Documents, together with all schedules and exhibits
hereto and thereto;
(b) favorable written opinions of special counsel to the
Borrowers dated the Closing Date, addressed to the Administrative Agent
and the Lenders and satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇,
L.L.P., special counsel to the Administrative Agent, substantially in
the form of Exhibit K attached hereto;
(c) resolutions of the board of directors or other appropriate
governing body (or of the appropriate committee thereof) of each
Borrower certified by its secretary or assistant secretary or other
appropriate official as of the Closing Date, approving and adopting the
Loan Documents to be executed, and authorizing the execution and
delivery thereof;
(d) specimen signatures of officers of each Borrower executing
the Loan Documents on behalf of such Borrower, certified by the
secretary or assistant secretary or other appropriate official of such
Borrower;
(e) the charter documents of each Borrower certified as of a
recent date by the Secretary of State of such Borrower's jurisdiction
of incorporation;
(f) the by-laws of each Borrower certified as of the Closing
Date as true and correct by the secretary or assistant secretary of
such Borrower;
(g) certificates issued as of a recent date by the Secretary
of State or other appropriate Governmental Authority of each Borrower's
jurisdiction of incorporation as to the due existence and good standing
of such Borrower therein;
(h) appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct business
under assumed name, issued in respect of each Borrower as of a recent
date by the Secretary of State or other appropriate Governmental
Authority of each jurisdiction in which the failure to be qualified to
do business or authorized so to conduct business could have a Material
Adverse Effect;
49
(i) notice of appointment of the Authorized Representatives of
each Borrower in the form of Exhibit C hereto;
(j) certificate of an Authorized Representative dated the
Closing Date demonstrating compliance with the financial covenants
contained in Sections 8.01 and 8.02 as of the immediately preceding
calendar quarter, substantially in the form of Exhibit L attached
hereto;
(k) evidence of insurance required by the Loan Documents;
(l) all fees payable by the Borrowers on the Closing Date to
the Administrative Agent, any Issuing Banks, NationsBank and the
Lenders; and
(m) such other documents, instruments, certificates and
opinions as the Administrative Agent or any Lender may reasonably
request on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby.
5.02 Conditions of Loans. The obligations of the Lenders to make any
Loans, and of the Issuing Banks to issue Letters of Credit hereunder on or
subsequent to the Closing Date are subject to the satisfaction of the following
conditions:
(a) the Administrative Agent shall have received a notice of
such borrowing or request if required by Article II hereof;
(b) the representations and warranties of the Company and its
Subsidiaries, taken as a whole, set forth in Article VI hereof and in
each of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Advance or issuance of
such Letters of Credit, as the case may be, with the same effect as
though such representations and warranties had been made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 6.01(f)(i) shall be deemed
to be those financial statements most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit, the
Company shall have executed and delivered to the applicable Issuing
Bank an Application and Agreement for Letter of Credit in form and
content acceptable to such applicable Issuing Bank together with such
other instruments and documents as it shall request;
(d) at the time of each such Advance, Swing Line Loan or
issuance of each Letter of Credit, as the case may be, and after giving
effect thereto no Default or Event of Default specified in Article IX
hereof, shall have occurred and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the
aggregate Swing Line Outstandings shall not exceed $50,000,000; and
50
(f) immediately after giving effect to a Loan or Letter of
Credit the aggregate principal balance of all outstanding Loans and
Participations for each Lender and in the aggregate shall not exceed,
respectively, (i) any of such Lender's Revolving Credit Commitment or
Letter of Credit Commitment or (ii) any of the Total Revolving Credit
Commitment or Total Letter of Credit Commitment.
5.03 Supplements to Schedules. The Borrowers may, from time to time,
amend or supplement the Schedules to this Agreement by delivering (effective
upon receipt) to the Administrative Agent and each Lender a copy of such revised
Schedule or Schedules which shall (i) be dated the date of delivery, (ii) be
certified by an Authorized Representative as true, complete and correct as of
such date and as delivered in replacement for the corresponding Schedule or
Schedules previously in effect, and (iii) show in reasonable detail (by
blacklining or other appropriate graphic means) the changes from each such
corresponding predecessor Schedule. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, in the event that the
Required Lenders determine based upon such revised Schedule (whether
individually or in the aggregate or cumulatively) that there has been a material
adverse change since the Closing Date in the financial condition, business or
operations of the Company and its Subsidiaries, taken as a whole, the Lenders
shall have no further obligation to fund additional Advances hereunder.
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ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Company represents and
warrants with respect to itself and to its Subsidiaries (which representations
and warranties shall survive the delivery of the documents mentioned herein and
the making of Loans and issuance of Letters of Credit), that:
(a) Organization and Authority.
(i) the Company and each Subsidiary is a corporation,
limited liability company or partnership duly organized and
validly existing under the laws of the jurisdiction of its
incorporation or creation;
(ii) the Company and each Subsidiary (x) has the
requisite power and authority to own its properties and assets
and to carry on its business as now being conducted and as
contemplated in the Loan Documents, and (y) is qualified to do
business in every jurisdiction in which failure so to qualify
would have a Material Adverse Effect;
(iii) the Company and RRC have the power and
authority to execute, deliver and perform this Agreement and
the Notes, and to borrow hereunder, and to execute, deliver
and perform each of the other Loan Documents to which they are
a party; and
(iv) when executed and delivered, each of the Loan
Documents to which the Company and RRC are a party will be the
legal, valid and binding obligation or agreement of the
Company and RRC, enforceable against the Company and RRC in
accordance with their terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity which may limit the availability of
equitable remedies (whether in a proceeding at law or in
equity);
(b) Loan Documents. The execution, delivery and performance by
the Company and RRC of each of the Loan Documents to which they are a
party:
(i) have been duly authorized by all requisite
corporate action (including any required shareholder approval)
of the Company and RRC required for the lawful execution,
delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable
law, rule or regulation, (2) any order of any court or other
agency of government binding on the Company
52
or RRC or their properties, or (3) the charter documents,
documents of creation or by-laws of the Company or RRC;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default, or an event
which, with notice or lapse of time, or both, would constitute
an event of default, under any indenture, agreement or other
instrument to which the Company or RRC is a party, or by which
the properties or assets of the Company or RRC are bound;
(iv) will not result in the creation or imposition of
any Lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company or RRC.
(c) Solvency. The Company and each Subsidiary will remain
Solvent after giving effect to the transactions contemplated by this
Agreement and the other Loan Documents.
(d) Subsidiaries and Stockholders. As of the date hereof, the
Company has no Subsidiaries other than those Persons listed as
Subsidiaries on Schedule 6.01(d) hereto; Schedule 6.01(d) to this
Agreement states as of the date hereof the authorized and issued
capitalization of each Subsidiary listed thereon, the number of shares
or other equity interests of each class of capital stock or interest
issued and outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each
such class of capital stock or equity interest owned by the Company or
by any such Subsidiary; as of the date hereof, the outstanding shares
or other equity interests of each such Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable;
and, as of the date hereof, the Company and each such Subsidiary owns
beneficially and of record all the shares and other interests it is
listed as owning in Schedule 6.01(d), free and clear of any Lien other
than the Liens permitted under Section 8.04.
(e) Ownership Interests. As of the date hereof, the Company
owns no interest in any Person having an aggregate book value of
$1,000,000 or more other than the Persons listed in Schedule 6.01(d)
hereto;
(f) Financial Condition. (i) The Company has heretofore
furnished to each Lender an audited consolidated balance sheet of the
Company and its Subsidiaries as at December 31, 1997 and the notes
thereto and the related consolidated statements of operations, cash
flows, and changes in stockholders' equity for the Fiscal Year then
ended as examined and certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. and unaudited
interim consolidated financial statements of the Company and its
Subsidiaries consisting of a consolidated balance sheet and related
statements of operations, cash flow and stockholders' equity, in each
case without notes, for and as of the nine month period ending
September 30, 1998. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition of the Company and its Subsidiaries as of the end of such
Fiscal Year and
53
such interim period and results of their operations and the changes in
their stockholders' equity for the Fiscal Year and such interim period
then ended, all in conformity with Generally Accepted Accounting
Principles applied on a Consistent Basis;
(ii) except for the transfer of a portion of RSG to
shareholders, since December 31, 1997, there has been no material
adverse change in the condition, financial or otherwise, of the Company
and its Subsidiaries or in the businesses, properties and operations of
the Company and its Subsidiaries, considered as a whole, nor have such
businesses or properties, taken as a whole, been materially adversely
affected as a result of any fire, explosion, earthquake, accident,
strike, lockout, combination of workers, flood, embargo or act of God;
(iii) except as set forth in the financial statements referred
to in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j)
attached hereto, neither the Company nor any Subsidiary has incurred,
other than in the ordinary course of business, any material
indebtedness, obligations, commitments or other material liability
contingent or otherwise which remain outstanding or unsatisfied;
(g) Title to Properties. The Company and its Subsidiaries have
title to all their respective owned real and personal properties,
subject to no transfer restrictions or Liens of any kind, except for
(x) the transfer restrictions and Liens described in Schedule 6.01(g)
attached hereto, and (y) Liens permitted under Section 8.04 hereof;
(h) Taxes. The Company and its Subsidiaries have filed or
caused to be filed all federal, state, local and foreign tax returns
which are required to be filed by them and except for taxes and
assessments being contested in good faith and against which reserves
satisfactory to the Company's independent certified public accountants
have been established, and have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by them, to the
extent that such taxes have become due;
(i) Other Agreements. Neither the Company nor any Subsidiary
is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions which could
have a Material Adverse Effect; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which the Company
or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could have, a
Material Adverse Effect;
(j) Litigation. Except as set forth in Schedule 6.01(j)
attached hereto, there is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of the Company or RRC,
threatened by or against the Company or any Subsidiary or affecting the
Company or
54
any Subsidiary or any properties or rights of the Company or any
Subsidiary, which could reasonably be expected to have a Material
Adverse Effect;
(k) Margin Stock. Neither the Company nor any Subsidiary owns
any "margin stock" as such term is defined in Regulation U, as amended
(12 C.F.R. Part 221), of the Board. The proceeds of the borrowings made
pursuant to Article II hereof will be used by the Company and its
Subsidiaries only for the purposes set forth in Section 2.14 hereof.
None of such proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose
of reducing or retiring any Indebtedness which was originally incurred
to purchase or carry margin stock or for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit"
within the meaning of said Regulation U or Regulation X (12 C.F.R. Part
224) of the Board. Neither the Borrowers nor any agent acting in their
behalf has taken or will take any action which might cause this
Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the
Securities Exchange Act of 1934, as amended, or the Securities Act of
1933, as amended, or any state securities laws, in each case as in
effect on the date hereof;
(l) Investment Company. Neither the Company nor any Subsidiary
is an "investment company," or an "affiliated person" of, or "promoter"
or "principal underwriter" for, an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended (15
U.S.C. ss. 80a-1, et seq.). The application of the proceeds of the
Loans and repayment thereof by the Borrowers and the performance by the
Borrowers of the transactions contemplated by this Agreement will not
violate any provision of said Act, or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder, in each
case as in effect on the date hereof;
(m) Patents, Etc. The Company and its Subsidiaries own or have
the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights,
trade names, trade name rights, trade secrets and copyrights necessary
to the conduct of their businesses as now conducted, without known
conflict with any patent, license, franchise, trademark, trade secrets
and confidential commercial or proprietary information, trade name,
copyright, rights to trade secrets or other proprietary rights of any
other Person;
(n) No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or
on behalf of the Company or any Subsidiary in accordance with or
pursuant to any Loan Document contains any misrepresentation or untrue
statement of material fact or omits to state a material fact necessary,
in light of the circumstance under which it was made, in order to make
any such representation or statement contained herein or therein not
misleading in any material respect;
55
(o) No Consents, Etc. Neither the respective businesses or
properties of the Company or any Subsidiary, nor any relationship
between the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the execution, delivery and performance
of the Loan Documents and the transactions contemplated thereby is such
as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or other
authority or any other Person on the part of the Company or any
Subsidiary as a condition to the execution, delivery and performance
of, or consummation of the transactions contemplated by, this Agreement
or the other Loan Documents or if so, such consent, approval,
authorization, filing, registration or qualification has been obtained
or effected, as the case may be and is in full force and effect;
(p) Benefit Plans.
(i) None of the employee benefit plans maintained at
any time by the Company or any Subsidiary or the trusts created
thereunder has engaged in a prohibited transaction which could subject
any such employee benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA;
(ii) None of the employee benefit plans maintained at
any time by the Company or any Subsidiary which are employee pension
benefit plans and which are subject to Title IV of ERISA or the trusts
created thereunder has been terminated so as to result in a material
liability, fine or penalty of either Borrower under ERISA nor has any
such employee benefit plan of the Company or any Subsidiary incurred
any material liability, fine or penalty to the Pension Benefit Guaranty
Corporation established pursuant to ERISA, other than for required
insurance premiums which have been paid or are not yet due and payable;
neither the Company nor any Subsidiary has withdrawn from or caused a
partial withdrawal to occur with respect to any Multi-employer Plan
resulting in any assessed and unpaid withdrawal liability; the Company
and the Subsidiaries have made or provided for all contributions to all
such employee pension benefit plans which they maintain and which are
required as of the end of the most recent fiscal year under each such
plan; neither the Company nor any Subsidiary has incurred any
accumulated funding deficiency with respect to any such plan, whether
or not waived; nor has there been any reportable event, or other event
or condition, which presents a material risk of termination of any such
employee benefit plan by such Pension Benefit Guaranty Corporation;
(iii) Except as set forth in Schedule 6.01(p), the
present value of all vested accrued benefits under the employee pension
benefit plans which are subject to Title IV of ERISA, maintained by the
Company or any Subsidiary, did not, as of the most recent valuation
date for each such plan, exceed the then current value of the assets of
such employee benefit plans allocable to such benefits;
(iv) The consummation of the Loans and the issuance
of the Letters of Credit provided for in Article II and Article III
will not involve any prohibited transaction under ERISA which is not
subject to a statutory or administrative exemption;
56
(v) To the best of the Company's knowledge, each
employee pension benefit plan subject to Title IV of ERISA, maintained
by the Company or any Subsidiary, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules;
(vi) There has been no material withdrawal liability
incurred and unpaid with respect to any Multi-employer Plan to which
the Company or any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975
and ERISA;
(viii) Except as set forth in Schedule 6.01(p),
neither the Company nor any Subsidiary has any liability not disclosed
on any of the financial statements furnished to the Lenders pursuant to
Section 7.01(f) hereof, contingent or otherwise, under any plan or
program or the equivalent for unfunded post-retirement benefits,
including pension, medical and death benefits, which liability would
have a Material Adverse Effect.
(q) No Default. There does not exist any Default or Event of
Default hereunder;
(r) Hazardous Materials. Except as set forth in Schedule
6.01(r), the Company and each Subsidiary is in compliance with all
applicable Environmental Laws in all material respects and neither the
Company nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which alleges material non-compliance by
the Company or any Subsidiary with any Environmental Laws or which
primarily seeks to suspend, revoke or terminate any license, permit or
approval necessary for the generation, handling, storage, treatment or
disposal of any Hazardous Material;
(s) RICO. Neither the Company nor any Subsidiary is engaged in
or has engaged in any course of conduct that could subject any of their
respective properties to any Lien, seizure or other forfeiture under
any criminal law, racketeer influenced and corrupt organizations law,
civil or criminal, or other similar laws;
(t) Employment Matters. Except as disclosed on Schedule
6.01(j) hereto, the Company and all Subsidiaries are in compliance in
all material respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation
those pertaining to wages, hours, occupational safety and taxation the
noncompliance with which might have a Material Adverse Effect and there
is neither pending nor, to the knowledge of either the Company or RRC,
threatened any litigation,
57
administrative proceeding or investigation, in respect of such matters,
an adverse ruling or determination in which could have a Material
Adverse Effect;
(u) Year 2000 Compliance. The Borrowers and their Subsidiaries
have (i) initiated a review and assessment of all areas within the
Borrowers and each of their Subsidiaries' business and operations
(including those affected by information received from suppliers and
vendors) that could reasonably be expected to be adversely affected by
the Year 2000 Problem, (ii) developed a plan and time line for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable.
The Borrowers reasonably believe that all computer applications that
are owned or leased and are used by either of the Borrowers or any of
their Subsidiaries (including those affected by information received
from their suppliers and vendors) that are material to the Borrowers or
any of their Subsidiaries' business and operations will on a timely
basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
58
ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Company will:
7.01 Financial Reports, Etc. (a) as soon as practical and in any event
within 120 days after the end of each Fiscal Year of the Company, deliver or
cause to be delivered to the Administrative Agent and each Lender (i) the
consolidated balance sheets of the Company and its Subsidiaries, with the notes
thereto, the related consolidated statements of operations, cash flows, and
shareholders' equity and the respective notes thereto for such Fiscal Year,
setting forth comparative financial statements for the preceding Fiscal Year,
all prepared in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis (except that RSG shall not be treated as a Subsidiary) and
containing opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., or other such independent
certified public accountants selected by the Company and approved by the
Administrative Agent, which are, except for the treatment of RSG, unqualified as
to the scope of the audit performed and as to the "going concern" status of the
Company; and (ii) a certificate of an Authorized Representative as to the
existence of any Default or Event of Default and demonstrating compliance with
Sections 8.01 and 8.02 of this Agreement, which certificate shall be in the form
attached hereto as Exhibit L;
(b) as soon as practical and in any event within 60 days after the end
of each quarterly period (except the last reporting period of the Fiscal Year),
deliver to the Administrative Agent and each Lender (i) the consolidated balance
sheet of the Company and its Subsidiaries as of the end of such reporting
period, the related consolidated statements of operations, cash flows, and
shareholders' equity for such reporting period and for the period from the
beginning of the Fiscal Year through the end of such reporting period,
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present fairly the financial position of the Company
and its Subsidiaries as of the end of such reporting period and the results of
their operations and the changes in their financial position for such reporting
period, in conformity with the standards set forth in Section 6.01(f)(i) with
respect to interim financials, and (ii) a certificate of an Authorized
Representative as to the existence of any Default or Event of Default and
containing computations for such quarter comparable to that required pursuant to
Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, if the accountants specified in Section 7.01(a)(i)
shall have obtained knowledge of a Default or Event of Default in the
fulfillment of the terms and provisions of this Agreement insofar as they relate
to financial statements (which at the date of such statements remains uncured),
deliver to the Administrative Agent and the Lenders a statement specifying the
nature and period of existence thereof and the action the Company has taken or
proposes to take with respect thereto;
59
(d) promptly upon their becoming available to the Company, the Company
shall deliver to the Administrative Agent and each Lender a copy of (i) all
regular or special reports or effective registration statements which the
Company or any Subsidiary shall file with the Securities and Exchange Commission
(or any successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Company to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to the Company or any of its Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Company or any of
its Subsidiaries; and
(e) promptly, from time to time but not less frequently than once
during each calendar quarter but in any case promptly following a written
request after the occurrence and during the continuation of a Default or Event
of Default, deliver or cause to be delivered to the Administrative Agent and
each Lender (x) an updated Schedule 6.01(d) in substantially the same form as
provided under Section 6.01(d) hereof, and (y) such other information regarding
Company's and each Subsidiary's operations, business affairs and financial
condition as the Administrative Agent or such Lender may reasonably request. The
Administrative Agent and the Lenders are hereby authorized to deliver a copy of
any such financial information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Administrative Agent, to any regulatory
authority having jurisdiction over any of the Lenders pursuant to any written
request therefor, or, subject to Section 11.01(f) hereof, to any other Person
who shall acquire or consider the acquisition of a participation interest in or
assignment of any Loan or Letter of Credit permitted by this Agreement.
7.02 Maintain Properties. Maintain in all material respects all
properties necessary to its operations in good working order and condition
(ordinary wear and tear excepted) and make in all material respects all needed
repairs, replacements and renewals as are necessary to conduct its business in
accordance with customary business practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits, except to
the extent conveyed in connection with a transaction permitted under Section
8.05 hereof, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary.
7.04 Regulations and Taxes. Comply in all material respects with all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties except
liabilities being contested in good faith and against which adequate reserves
have been established.
7.05 Insurance. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers or self insured against
loss or damage by fire and other hazards as are customarily insured against by
similar businesses owning such properties similarly situated, (ii) maintain
general public liability insurance at all times with responsible insurance
carriers or self
60
insured against liability on account of damage to persons and property having
such limits, deductibles, exclusions and co-insurance and other provisions
providing no less coverage than that specified in Schedule 7.05 attached hereto,
such insurance policies to be in form reasonably satisfactory to the
Administrative Agent, and (iii) maintain insurance under all applicable workers'
compensation laws (or in the alternative, maintain required reserves if
self-insured for workers' compensation purposes).
7.06 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions in
accordance with customary business practices, and set up on its books such
reserves as may be required by Generally Accepted Accounting Principles with
respect to doubtful accounts and all taxes, assessments, charges, levies and
claims and with respect to its business in general, and include such reserves in
interim as well as year-end financial statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly comply
with all the terms and covenants contained in all Loan Documents and other
instruments and documents given to the Administrative Agent or the Lenders
pursuant hereto or thereto.
7.08 Right of Inspection. Permit any Person designated by any Lender or
the Administrative Agent at the Lender's or Administrative Agent's expense, as
the case may be, to visit and inspect any of the properties, corporate books and
financial reports of the Company and its Subsidiaries, and to discuss their
respective affairs, finances and accounts with their principal officers and
independent certified public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice.
7.09 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
regulatory or governmental authority with respect to the conduct of its business
the non-compliance with which might have a Material Adverse Effect.
7.10 Covenants Extending to Subsidiaries. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Company in Sections 7.02 through 7.09, inclusive to
the extent the failure to do so could have a Material Adverse Effect.
7.11 Officer's Knowledge of Default. Upon either Borrowers' obtaining
knowledge of any Default or Event of Default hereunder, cause an Authorized
Representative to promptly notify the Administrative Agent of the nature
thereof, the period of existence thereof, and what action the Borrowers propose
to take with respect thereto.
7.12 Suits or Other Proceedings. Upon either Borrowers' obtaining
knowledge of any litigation or other proceedings being instituted against the
Company or any Subsidiary, or any attachment, levy, execution or other process
being instituted against any assets of the Company or
61
any Subsidiary, in an aggregate stated or claimed amount greater than
$10,000,000 not otherwise covered by insurance, promptly deliver to the
Administrative Agent written notice thereof stating the nature and status of
such litigation, dispute, proceeding, levy, execution or other process.
7.13 Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Administrative Agent true, accurate and
complete copies of any and all notices, complaints, orders, directives, claims,
or citations received by the Company or any Subsidiary relating to any material
(a) violation or alleged violation by the Company or any Subsidiary of any
applicable Environmental Laws or OSHA; (b) release or threatened release by the
Company or any Subsidiary of any Hazardous Material, except where occurring
legally; or (c) liability or alleged liability of the Company or any Subsidiary
for the costs of cleaning up, removing, remediating or responding to a release
of Hazardous Materials.
7.14 Environmental Compliance. If the Company or any Subsidiary shall
receive notice from any Governmental Authority that the Company or any
Subsidiary has violated any applicable Environmental Laws in any material
respect, the Borrowers shall promptly (and in any event within the time period
permitted by the applicable Governmental Authority) remove or remedy, or the
Company shall cause the applicable Subsidiary to remove or remedy, such
violation.
7.15 Further Assurances. At its cost and expense, upon request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent such further instruments, documents,
certificates, agreements and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.
7.16 Benefit Plans. Comply in all material respects with all
requirements of ERISA applicable to it and furnish to the Administrative Agent
as soon as possible and in any event (i) within thirty (30) days after the
Borrowers know or have reason to know that any reportable event with respect to
any employee benefit plan maintained by the Company or any Subsidiary which
could give rise to termination or the imposition of any material tax or penalty
has occurred, written statement of an Authorized Representative describing in
reasonable detail such reportable event and any action which the Company or
applicable Subsidiary proposes to take with respect thereto, together with a
copy of the notice of such reportable event given to the Pension Benefit
Guaranty Corporation or a statement that said notice will be filed with the
annual report of the United States Department of Labor with respect to such plan
if such filing has been authorized, (ii) promptly after receipt thereof, a copy
of any notice that the Company or any Subsidiary may receive from the Pension
Benefit Guaranty Corporation relating to the intention of the Pension Benefit
Guaranty Corporation to terminate any employee benefit plan or plans of the
Company or any Subsidiary or to appoint a trustee to administer any such plan,
and (iii) within 10 days after a filing with the Pension Benefit Guaranty
Corporation pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a plan, a
certificate of an Authorized Representative setting forth details as to such
failure and the action that the Company or its affected
62
Subsidiary, as applicable, proposes to take with respect thereto, together with
a copy of such notice given to the Pension Benefit Guaranty Corporation.
7.17 Continued Operations. Continue at all times (i) to conduct its
business and engage principally in the same or complementary line or lines of
business substantially as heretofore conducted (subject to the right to dispose
of assets in transactions permitted under Section 8.05 hereof and to make
Permitted Acquisitions), and (ii) preserve, protect and maintain free from Liens
(other than Liens permitted under Section 8.04 hereof) its material patents,
copyrights, licenses, trademarks, trademark rights, trade names, trade name
rights, trade secrets and know-how necessary or reasonably required in the
conduct of its operations.
7.18 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.14 hereof.
7.19 Year 2000 Compliance. The Borrowers will promptly notify the
Administrative Agent and the Lenders in the event the Borrowers discover or
determine that any computer applications that are owned or leased and are used
by either of the Borrowers or any of their Subsidiaries (including those
affected by information received from their suppliers and vendors) that are
material to the business and operations of the Borrowers and their Subsidiaries
will not be Year 2000 Compliant on a timely basis, except to the extent that
such failure could not reasonably be expected to have a Material Adverse Effect.
63
ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, the Company will not:
8.01 Indebtedness to Capitalization. Permit at any time the ratio of
Consolidated Funded Indebtedness to Consolidated Total Capitalization to be
greater than .40 to 1.00.
8.02 Consolidated Fixed Charge Ratio. Permit for the Four-Quarter
Period most recently ended of the Company and its Subsidiaries, the Consolidated
Fixed Charge Ratio to be less than 2.00 to 1.00.
8.03 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness of the Company or any of its Subsidiaries, howsoever evidenced,
except
(i) Indebtedness existing as of the date hereof and as set
forth in Schedule 8.03 attached hereto and incorporated herein by
reference and any refinancing or replacement thereof on substantially
the same or more favorable terms to the Company or its Subsidiaries;
(ii) the guaranty by the Company of any Indebtedness or lease
obligations of its Subsidiaries, or of Indebtedness or lease
obligations arising under the AutoNation TROL or any Eligible TROL;
(iii) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iv) secured Indebtedness of the Company and its Subsidiaries,
other than Vehicle Secured Indebtedness or Vehicle Receivables
Indebtedness, in an aggregate outstanding amount not to exceed at any
time fifteen percent (15%) of Consolidated Shareholders' Equity;
(v) unsecured Indebtedness of the Borrowers;
(vi) unsecured Indebtedness of the Subsidiaries (other than
RRC) of the Company (other than Vehicle Secured Indebtedness or Vehicle
Receivables Indebtedness) in an outstanding amount, when aggregated
with any outstanding secured Indebtedness of such Subsidiaries under
Section 8.03(iv), not to exceed fifteen percent (15%) of Consolidated
Shareholders' Equity;
(vii) Vehicle Receivables Indebtedness; and
(viii) Vehicle Secured Indebtedness of the Company and its
Subsidiaries; provided, however, to the extent the amount of
Indebtedness secured by Vehicles or related receivables
64
of the Company and its Subsidiaries is in excess of the depreciated
book value of such Vehicles or the book value of such related
receivables, such excess amount will be considered for purposes of this
Agreement as Indebtedness other than Vehicle Secured Indebtedness, of
either the Company or such Subsidiaries.
8.04 Liens. Incur, create or permit to exist any Lien of any nature
whatsoever with respect to any property or assets now owned or hereafter
acquired by the Company or any of its Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth in
Schedule 6.01(g) attached hereto;
(ii) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or, Liens for
judgments or levies, in each case which are being contested in good
faith by appropriate proceedings diligently pursued and with respect to
which adequate reserves or other appropriate provisions are being
maintained in accordance with Generally Accepted Accounting Principles;
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with Generally Accepted Accounting
Principles;
(iv) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), self insurance general liability insurance programs,
statutory obligations and other similar obligations or arising as a
result of progress payments under government contracts;
(v) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Company or any Subsidiary and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof to the Company or any Subsidiary;
(vi) Liens on any airport concession agreements or permits
maintained by the Company or any Subsidiary to secure loans extended to
finance tenant improvements used in connection with the concession
agreement or permit subject to such Lien;
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(vii) Liens to secure the refinancing of any Indebtedness
permitted under Section 8.03(i) hereof to the extent such Liens
encumber substantially the same assets in substantially the same manner
as the Liens securing the debt being refinanced or to the extent such
Liens constitute Liens permitted under this Section 8.04;
(viii) Liens on claims of the Company or any Subsidiary
against Persons renting or leasing Vehicles, Persons damaging Vehicles
or Persons issuing applicable insurance coverage for such Persons,
which claims relate to damage to Vehicles, to the extent that such
damage exceeds the render's or lessee's collision damage waiver
limitation or insurance deductible; and
(ix) Liens securing Indebtedness permitted under Section
8.03(iv), 8.03(vii) or 8.03(viii).
8.05 Transfer of Assets. Other than in the ordinary course of business
(which shall include, without limitation, sales, leases and rentals of Vehicles
and sales of receivables relating to Vehicles) sell, lease, transfer or
otherwise dispose of any property or assets of the Company or any Subsidiary if
the aggregate book value or sales price of such property and assets so disposed
of during the term of this Agreement would exceed twenty percent (20%) of the
Consolidated Total Assets (determined as of the most recently ended Fiscal
Year); provided, however, that there shall be excluded from the calculation of
assets disposed of all or any portion of the capital stock or assets of RSG.
8.06 Investments; Acquisitions. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, the Company and its Subsidiaries may maintain investments or
invest in or acquire
(i) Eligible Securities;
(ii) all or substantially all of the stock or other equity
interests, or all or substantially all of the assets of another Person
(or a line of business or division of such other Person) constituting a
Permitted Acquisition; provided, however, that if the Person or the
assets so acquired on a pro forma historical basis as at the date of
the acquisition or for the Four-Quarter Period most recently ended
preceding the date of acquisition owned assets or generated income,
which when consolidated with the assets and income of the Company and
its Subsidiaries, constitute ten percent (10%) or more of Consolidated
Total Assets or Consolidated Net Income, then the Company shall furnish
to the Administrative Agent prior to completing such acquisition a
certificate in the form of Exhibit F attached hereto containing
information required therein demonstrating that on a historical pro
forma basis that after giving effect to such acquisition no Default or
Event of Default exists hereunder;
(iii) investments existing as of the date hereof and as set
forth in Schedule 6.01(d) attached hereto;
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(iv) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(v) loans and advances to and investments in Subsidiaries;
(vi) loans and advances to and investments in Persons (other
than as permitted under this Section 8.06) in an aggregate outstanding
amount not exceeding at any time fifteen percent (15%) of Consolidated
Shareholders' Equity; provided, however, that further loans, advances
or investments shall not be made to or in RSG;
(vii) any security or debt instrument retained by the Company
or any Subsidiary in connection with the creation of Vehicle
Receivables Indebtedness or Vehicle Secured Indebtedness which security
or debt instrument represents a residual interest in assets sold or
transferred to an Eligible Special Purpose Entity; and
(viii) consumer loans and leases entered into, purchased or
otherwise acquired by the Company or its Subsidiaries, as lender,
lessor or assignee, as applicable, related to Automobile Retailing
Activities.
8.07 Merger or Consolidation. Other than as permitted under Section
8.06(ii) hereof (a) consolidate with or merge into any other Person, or (b)
permit any other Person to merge into it, or (c) liquidate, wind-up or dissolve
or sell, transfer or lease or otherwise dispose of all or a substantial part of
its assets (other than sales in the ordinary course of business); provided,
however, (i) any Subsidiary of the Company may merge or transfer all or
substantially all of its assets into or consolidate with any wholly-owned
Subsidiary of the Company, and (ii) any Person may merge with the Company if the
Company shall be the survivor thereof and such merger shall not cause, create or
result in the occurrence of any Default or Event of Default hereunder.
8.08 Transactions with Affiliates. Other than transactions permitted
under Section 8.07 hereof, enter into any transaction after the date hereof,
including, without limitation, the purchase, sale, leasing or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Company, except (a) that such Persons may render services to the Company
or its Subsidiaries for compensation at the same rates generally paid by Persons
engaged in the same or similar businesses for the same or similar services and
(b) in the ordinary course of and pursuant to the reasonable requirements of the
Company's (or any Subsidiary's) business consistent with past practice of the
Company and its Subsidiaries and upon fair and reasonable terms no less
favorable to the Company (or any Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate.
8.09 Benefit Plans. With respect to all employee pension benefit plans
maintained by the Company or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as
to incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA;
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(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject the Company or a Subsidiary to a
tax or penalty or other liability on prohibited transactions imposed
under Internal Revenue Code Section 4975 or ERISA;
(iii) fail to pay to any such employee pension benefit plan
any contribution which it is obligated to pay under the terms of such
plan;
(iv) except as set forth in Schedule 6.01(p), allow or suffer
to exist any accumulated funding deficiency, whether or not waived,
with respect to any such employee pension benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation of any such
employee pension benefit plan that is a Single Employer Plan, which
termination could result in any liability to the Pension Benefit
Guaranty Corporation; or
(vi) incur any material withdrawal liability with respect to
any Multi-employer Plan.
8.10 Fiscal Year. Change either Borrower's Fiscal Year without prior
notification to the Administrative Agent.
8.11 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Company permitted
pursuant to Section 8.07.
8.12 Change in Control. Permit at any time a Change in Control.
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ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or of any fees or other amounts
payable to the Lenders, the Administrative Agent, any Issuing Banks or
NationsBank under the Loan Documents on the date on which the same
shall be due and payable and such failure to pay shall continue for a
period of three days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 7.06, 7.07(a), 7.11 or Article
VIII hereof; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Administrative
Agent or either Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation in favor of the Administrative Agent or the
Lenders or delivered to the Administrative Agent or the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than by reason of any action by the Administrative
Agent), or if without the written consent of the Administrative Agent
and the Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of any
action by the Administrative Agent or any Lender); or
(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of the Company or of
any Subsidiary in an outstanding aggregate amount not less than
$20,000,000, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in any agreement or instrument under or
pursuant to which any such
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Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Company or any Subsidiary, and such default shall
continue for more than the period of grace, if any, therein specified,
or if such default shall permit the holder of any such Indebtedness to
accelerate the maturity thereof; provided, however, that if the
Borrowers are contesting the payment amount on any such Indebtedness or
the date such payment is due in good faith and the Borrowers establish
reserves on their books if required by and in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, then such
nonpayment, in and of itself, shall not, absent an acceleration of such
Indebtedness constitute an Event of Default; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the
Administrative Agent or any Lender by or on behalf of the Company or
any Subsidiary pursuant to or in connection with this Agreement or the
other Loan Documents, or otherwise, shall be false or misleading in any
material respect when given or made or deemed given or made; or
(g) if the Company or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency, reorganization, bankruptcy, receivership
or similar law, domestic or foreign; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute,
federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Company or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Company or any
Subsidiary seeking reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign
country, province or other political subdivision, which petition is not
dismissed within sixty (60) days; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of the Company or any
Subsidiary or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Company or any Subsidiary any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state or foreign country, province
or other political subdivision which proceeding or petition remains
undismissed for a period of thirty (30) days; or if the Company or any
Subsidiary takes any action to indicate its consent to or approval of
any such proceeding or petition; or
(i) if (i) any judgments where the aggregate amount not
covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $15,000,000 are rendered against the Company
or any Subsidiary, or (ii) there are attachments, injunctions or
executions against any of the Company's or any Subsidiary's properties
for an aggregate
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amount in excess of $15,000,000; and such judgments, attachments,
injunctions or executions remain unpaid, unstayed, undischarged,
unbonded or undismissed for a period of thirty (30) days; or
(j) if the Company or any Subsidiary shall, other than as
permitted under Section 8.07 hereof or in the ordinary course of
business (as determined by past practices), suspend (other than for a
period not to exceed twenty (20) days by reason of force majeure) all
or any part of its operations material to the conduct of the business
of the Company or such Subsidiaries, taken as a whole; or
(k) if (i) the Company or any Subsidiary shall engage in any
prohibited transaction (as described in Section 8.09(ii) hereof), which
is not subject to a statutory or administrative exemption, involving
any employee pension benefit plan of the Company or any Subsidiary,
(ii) any accumulated funding deficiency (as referred to in Section
8.09(iv) hereof), whether or not waived, shall exist with respect to
any Single Employer Plan, (iii) a reportable event (as referred to in
Section 8.09(v) hereof) (other than a reportable event for which the
statutory notice requirement to the Pension Benefit Guaranty
Corporation has been waived by regulation) shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed to administer or to terminate, any Single Employer
Plan, which reportable event or institution or proceedings is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Single Employer Plan for purposes of Title IV of
ERISA, and in the case of such a reportable event, the continuance of
such reportable event shall be unremedied for sixty (60) days after
notice of such reportable event pursuant to Section 4043(a), (c) or (d)
of ERISA is given, as the case may be, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, and such termination
results in a material liability of the Company or any Subsidiary to
such Single Employer Plan or the Pension Benefit Guaranty Corporation,
(v) the Company or any Subsidiary shall withdraw from a Multi-employer
Plan for purposes of Title IV of ERISA, and, as a result of any such
withdrawal, the Company or any Subsidiary shall incur material
withdrawal liability to such Multi-employer Plan, or (vi) any other
event or condition shall occur or exist; and in each case in clauses
(i) through (vi) of this Section 9.01(k), such event or condition,
together with all other such events or conditions, if any, could
subject the Company or any Subsidiary to any tax, penalty or other
liabilities, and in each such case the event or condition is not
remedied to the satisfaction of the Required Lenders within ninety (90)
days after the earlier of (i) receipt of notice of such event or
condition by the Authorized Representative from the Administrative
Agent or (ii) the Company becomes aware of such event or condition;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Administrative Agent may, and at the direction
of the Required Lenders shall, declare any obligation of the
Lenders to make further Loans or of the Issuing Banks to issue
Letters of Credit terminated, whereupon the obligation of each
Lender to make further Loans or of the Issuing Banks to issue
Letters of Credit, hereunder shall terminate immediately, and
(ii) the Administrative Agent shall at the direction of the
71
Required Lenders, at their option, declare by notice to the
Borrowers any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrowers to the
Administrative Agent, the Lenders and the Issuing Banks, shall
forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to lend and of the Issuing Banks to
issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any
action by the Administrative Agent or the Required Lenders or
notice to the Administrative Agent or the Lenders;
(B) The Company shall, upon demand of the
Administrative Agent or the Required Lenders, deposit cash
with the Administrative Agent in accordance with the LC
Account Agreement in an amount equal to the amount of any
Letters of Credit remaining undrawn or unpaid, as collateral
security for the repayment of any future drawings or payments
under such Letters of Credit and the Company shall forthwith
deposit and pay such amounts and such amounts shall be held by
the Administrative Agent pursuant to the terms of the
applicable Application and Agreement for Letter of Credit;
(C) the Administrative Agent and the Lenders shall
have all of the rights and remedies available under the Loan
Documents or under any applicable law.
9.02 Administrative Agent to Act. In case any one or more Events of
Default shall occur and not have been waived, the Administrative Agent may, and
at the direction of the Required Lenders shall, proceed to protect and enforce
their rights or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right or remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
9.04 No Waiver. No course of dealing between the Borrowers and any
Lender or the Administrative Agent or any failure or delay on the part of any
Lender or the Administrative Agent in exercising any rights or remedies under
any Loan Document or otherwise available to it shall operate as a waiver of any
rights or remedies and no single or partial exercise of any rights or remedies
shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder or of the same right or remedy on a future occasion.
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9.05 Default. The Administrative Agent and the Lenders shall have no
right to accelerate any of the Loans upon, or to institute any action or
proceeding before any court to realize upon collateral as a result of, the
occurrence of any Default which shall not also constitute an Event of Default;
provided, however, nothing contained in this sentence shall in any respect
impair or adversely affect the right, power and authority of the Administrative
Agent and the Lenders (i) to take any action expressly required or permitted to
be taken under the Loan Documents upon the occurrence of any Default (and
including any action or proceeding which the Administrative Agent may determine
to be necessary or appropriate in furtherance of any such expressly authorized
action) and (ii) to take any action provided under the Loan Documents or
otherwise available by statute, at law or in equity upon the occurrence of any
Default.
9.06 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Administrative Agent hereunder,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrowers hereunder (other than amounts deposited with
the Administrative Agent pursuant to Section 9.01(B) which shall be applied
first to payment of draws under Letters of Credit) shall be applied by the
Administrative Agent in the following order:
(i) amounts due to the Issuing Banks, NationsBank and the
Lenders pursuant to Sections 2.12, 2.15, 3.02(f), 3.03, 11.05 and 11.11 hereof;
(ii) amounts due to (A) any Issuing Bank pursuant to Section
3.04 hereof, and (B) to any Issuing Bank, NationsBank and/or the Administrative
Agent pursuant to Section 10.12 hereof;
(iii) payments of interest on Loans, to be applied for the
ratable benefit of the Lenders;
(iv) payments of principal on Loans, to be applied for the
ratable benefit of the Lenders;
(v) payment of cash amounts to the Administrative Agent in
respect of Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
(vi) payments of all remaining Obligations, if any, to be
applied for the ratable benefit of the Lenders; and
(vii) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable law.
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ARTICLE X
The Administrative Agent
10.01 Appointment. Each Lender (including (x) NationsBank in its
capacity as maker of Swing Line Loans and (y) any Issuing Bank, as issuer of
Letters of Credit) hereby irrevocably designates and appoints NationsBank as the
Administrative Agent of the Lenders under this Agreement and each other Loan
Document, and each of the Lenders hereby irrevocably authorizes NationsBank as
the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. The Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any of the Lenders, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
10.02 Attorneys-in-fact. The Administrative Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible to the Lenders for the
negligence, gross negligence or willful misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.03 Limitation on Liability. Neither the Administrative Agent nor any
of its officers, directors, employees, agents or attorneys-in-fact shall be
liable to the Lenders for any action lawfully taken or omitted to be taken by it
or them under or in connection with this Agreement except for its or their own
gross negligence or willful misconduct. Neither the Administrative Agent nor any
of its affiliates shall be responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Company or
any of its Subsidiaries, or any officer or representative thereof contained in
this Agreement or in any of the other Loan Documents, or in any certificate,
report, statement or other document referred to or provided for in or received
by the Administrative Agent under or in connection with this Agreement, or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any of the other Loan Documents, or for any failure of the
Borrowers to perform their obligations thereunder, or for any recitals,
statements, representations or warranties made, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any collateral. The
Administrative Agent shall not be under any obligation to any of the Lenders to
ascertain or to inquire as to the observance or performance of any of the terms,
covenants or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrowers or to inspect the properties, books or records of the
Company or its Subsidiaries.
10.04 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent certificate, affidavit, letter, cablegram, telegram, telecopy or telex
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers), independent accountants and other experts
selected by the Administrative Agent.
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The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless an Assignment and Acceptance shall have been
filed with and accepted by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement unless it shall first receive advice or concurrence of the Lenders or
the Required Lenders as provided in this Agreement or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement in accordance with
a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
present and future holders of the Notes.
10.05 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender, an
Authorized Representative or the Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.06 No Representations. Each Lender expressly acknowledges that
neither the Administrative Agent nor any of its affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Company or any of
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the financial condition, creditworthiness, affairs, status
and nature of the Company and its Subsidiaries and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall 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 to make such
investigation as it deems necessary to inform itself as to the status and
affairs, financial or otherwise, of the Company and its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Company or any of its Subsidiaries which may come into the possession of the
Administrative Agent or any of its affiliates.
10.07 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting any obligations of the Company or any
Subsidiary so to do), including its employees, directors, officers and agents,
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ratably according to the respective outstanding principal amount of the Notes
held by them (or, if no Notes are outstanding, ratably in accordance with their
respective Applicable Commitment Percentages as then in effect) from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent, including its employees, directors, officers
and agents, in any way relating to or arising out of this Agreement or any other
document contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Obligations and the termination of this Agreement.
10.08 Lender. The Administrative Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Company and its Subsidiaries as though it were not the Administrative Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it, the Administrative Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity.
10.09 Resignation. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, then the Required Lenders may
appoint, with the consent, so long as there shall not have occurred and be
continuing a Default or Event of Default, of the Borrowers, which consent shall
not be unreasonably withheld, a successor Administrative Agent for the Lenders,
which successor Administrative Agent shall be a commercial bank organized under
the laws of the United States or any state thereof, having a combined surplus
and capital of not less than $500,000,000, whereupon such successor
Administrative Agent shall succeed to the rights, powers and duties of the
former Administrative Agent and the obligations of the former Administrative
Agent shall be terminated and canceled, without any other or further act or deed
on the part of such former Administrative Agent or any of the parties to this
Agreement; provided, however, that the former Administrative Agent's resignation
shall not become effective until such successor Administrative Agent has been
appointed and has succeeded of record to all right, title and interest in any
collateral held by the Administrative Agent; provided, further, that if the
Required Lenders and, if applicable, the Borrowers cannot agree as to a
successor Administrative Agent within ninety (90) days after such resignation,
the Administrative Agent shall appoint a successor Administrative Agent which
satisfies the criteria set forth above in this Section 10.09 for a successor
Administrative Agent and the parties hereto agree to execute whatever documents
are necessary to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however that in such event all
provisions of this Agreement and the Loan Documents, shall remain in full force
and effect. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
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10.10 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro rata
and (B) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; provided,
however, that for purposes of this Section 10.10 the term "pro rata" shall be
determined with respect to both the Revolving Credit Commitment of each Lender
and to the Total Revolving Credit Commitment after subtraction in each case of
amounts, if any, by which any such Lender has not funded its share of the
outstanding Revolving Credit Loans and Reimbursement Obligations. If all or any
portion of any such excess payment is thereafter recovered from the Lender which
received the same, the purchase provided in this Section 10.10 shall be
rescinded to the extent of such recovery, without interest. The Borrowers
expressly consent to the foregoing arrangements and agree that each Lender so
purchasing a portion of the other Lenders' Obligations may exercise all rights
of payment (including, without limitation, all rights of set-off, banker's lien
or counterclaim) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
10.11 One Lender. Notwithstanding anything to the contrary contained
herein or in any of the Loan Documents, if at any time NationsBank shall be the
sole Lender, all references to and rights, powers and privileges exercisable by
the "Administrative Agent" shall be deemed to refer to NationsBank.
10.12 Additional Fees. In addition to any fees otherwise described in
this Agreement, the Borrowers agree to pay to the Administrative Agent, any
Issuing Bank or NationsBank such other fees as may be agreed to in a separate
writing or writings.
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ARTICLE XI
Miscellaneous
11.01 Assignments and Participations.
(a) At any time after the Closing Date each Lender may, with the prior
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, and so long as no Default or Event of Default exists or is continuing,
with the prior consent of the Borrowers, which consent shall not be unreasonably
withheld (it being understood that consent may be withheld by the Borrowers if
such assignment would subject the Borrowers to the payment of any additional
amounts pursuant to the provisions of Section 4.06 hereof), assign to an
Eligible Assignee all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of any Note payable
to its order), provided, that (i) each such assignment shall be of a constant,
and not a varying, percentage of the assigning Lender's rights and obligations
(including Loans and Participations but excluding outstanding Competitive Bid
Loans) under this Agreement, (ii) for each assignment involving the issuance and
transfer of a Note, the assigning Lender shall execute an Assignment and
Acceptance and the Borrowers hereby consent to execute a replacement Note or
Notes to be exchanged for any surrendered Note or Notes of the assigning Lender
to give effect to the assignment, (iii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's rights and obligations
under this Agreement, the minimum Revolving Credit Commitment, which shall be
assigned is $10,000,000 (together with which the assigning Lender's applicable
portion of Participations and the Letter of Credit Commitment shall also be
assigned), (iv) such Eligible Assignee shall have an office located in the
United States, (v) an assignment (other than an assignment of 100% of its
interest) by NationsBank shall not include any portion of the Swing Line, and
(vi) an assignment (other than an assignment of 100% of its interest) by an
Issuing Bank shall not include any obligation to issue Letters of Credit. Upon
such execution, delivery, approval and acceptance, from and after the effective
date specified in each Assignment and Acceptance, (x) the Eligible Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder or under such Note have been assigned or negotiated to it
pursuant to such Assignment and Acceptance have the rights and obligations of a
Lender hereunder and a holder of such Notes and (y) the assignor thereunder
shall, to the extent that rights and obligations hereunder or under such Notes
have been assigned or negotiated by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from that portion of its
Obligations under this Agreement applicable to the rights so assigned; provided
that such assignor shall not be released from liability to the Borrowers for any
acts or omissions of such assignor prior to such assignment. Any Lender who
makes an assignment shall pay to the Administrative Agent a one-time
administrative fee of $3,500.00 which fee shall not be reimbursed by the
Borrowers.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the Eligible Assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) the
assignment made under such Assignment and Acceptance is made under such
Assignment and Acceptance without recourse; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or any Subsidiary or the performance or
observance by the Company or any Subsidiary of any of its obligations under any
Loan Document or any other instrument or document furnished
78
pursuant hereto; (iii) such Eligible Assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
delivered pursuant to Section 6.01(f) or Section 7.01, as the case may be, and
such other Loan Documents and 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 Eligible Assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such Eligible Assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement, the Notes and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such Eligible 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 and a holder of such Notes.
(c) The Administrative Agent shall maintain at its address referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Administrative Agent shall give prompt notice thereof to
Borrowers.
(e) Nothing herein shall prohibit any Lender from pledging or
assigning, without notice to or consent of the Borrowers and without the payment
of the administrative fee referred to in Section 11.01(a), any Note to any
Federal Reserve Bank in accordance with applicable law.
(f) Each Lender may sell participations at its expense without the
consent of the Borrowers or the Administrative Agent, to one or more banks or
other entities as to all or a portion of its rights and obligations under this
Agreement; provided, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any Notes issued to it for the purpose of this
Agreement, (iv) such participations shall be in a minimum amount of $5,000,000
and, in the case of a participation in the Revolving Credit Facility, shall
include an allocable portion of such Lender's Participation, (v) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and with regard to any and all payments to be
made under this Agreement; provided, that the participation agreement between a
Lender and its participants may provide that such Lender will obtain the
approval of such participant prior to such Lender's agreeing to any amendment or
waiver of any provisions of this Agreement which would (A) extend the maturity
of any Note, (B) reduce the interest rate hereunder, (C) change the amount of or
the due date of any scheduled payment of principal, or (D) increase the
Revolving Credit Commitment of the Lender granting the participation other than
as permitted by Section 2.10, and (vi) the sale of any such participations which
require the Borrowers to file a registration statement with the United States
Securities and Exchange Commission or under the securities regulations or laws
of any state shall not be permitted.
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11.02 Notices. All notices shall be in writing, except as to telephonic
notices expressly permitted or required herein, and written notices shall be
delivered by hand delivery, telegram, telex, telefacsimile, overnight courier or
certified or registered mail. Any notice shall be conclusively deemed to have
been received by any party hereto and be effective on the day on which delivered
to such party (against (except as to telephonic or telefacsimile notice) receipt
therefor or, in the case of telex, verification by return) at the address set
forth below or such other address as such party shall specify to the other
parties in writing, or if sent prepaid by certified or registered mail return
receipt requested on the third Business Day after the day on which mailed,
addressed to such party at said address:
(a) if to the Borrowers:
c/o Republic Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o Republic Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrative Agent:
NationsBank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services, ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) if to NationsBank in its capacity as issuer of the
Letters of Credit:
NationsBank, N.A.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services, ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
11.03 Setoff. Upon the occurrence or continuation of a Default or Event
of Default, each Lender at any time or times with or without prior notice to the
Borrowers may apply any deposits or balances of the Borrowers or any part
thereof held by the Administrative Agent or any Lender or any Affiliate thereof
to such of the Obligations of the Borrowers to the Lenders then past due and in
such amounts as they may elect, and whether or not the collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Administrative Agent or
such Lender as soon as the same may be put in transit to it by mail or carrier
or by other bailee.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of the Obligations remain outstanding or any Lender has
any commitment hereunder. Whenever in this Agreement, any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrowers which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.05 Expenses. The Borrowers agree (a) to pay or reimburse the
Administrative Agent for all its reasonable and customary out-of-pocket costs
and expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement or modification to, this Agreement
or any of the other Loan Documents (including travel expenses relating to
closing), and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable and customary fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
the Administrative Agent and the Lenders for all their reasonable costs and
expenses incurred in connection with the enforcement (only from and after the
occurrence of a Default or Event of Default) or preservation of any rights under
this Agreement and the other Loan Documents, including without limitation, the
reasonable fees and disbursements of their
81
counsel and any payments in indemnification or otherwise payable by the Lenders
to the Administrative Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Administrative Agent and the Lenders harmless from any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of this Agreement or any
other Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
or any other Loan Documents, and (d) to pay, indemnify, and hold the
Administrative Agent and the Lenders (and their respective agents, employees,
directors and officers) harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement and the other Loan Documents or in any respect relating to the
transactions contemplated hereby or thereby (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, however, that the Borrowers shall have
no obligation hereunder with respect to Indemnified Liabilities arising from (i)
the willful misconduct or gross negligence of or the willful breach of the Loan
Documents by the party seeking indemnification but only after the final
adjudication of willful misconduct, gross negligence or breach of Loan Documents
by such Person, (ii) legal proceedings commenced against the Administrative
Agent or any Lender by any security holder or creditor thereof arising out of
and based upon rights afforded any such security holder or creditor solely in
its capacity as such, (iii) any taxes imposed upon the Administrative Agent or
any Lender other than the documentary, stamp, excise and similar taxes described
in clause (c) above or any tax resulting from any Regulatory Change, which tax
would be payable to Lenders by the Borrowers pursuant to Article IV hereof, or
(iv) taxes imposed and costs and expenses incurred as a result of a transfer or
assignment of any Note, participation or assignment of a portion of its rights.
The agreements in this subsection shall survive repayment of the Notes and all
other Obligations hereunder. The reimbursement obligations of the Borrowers
contained in this paragraph also do not include the obligation to reimburse
Lender or the Administrative Agent for any expenses and fees incurred in any
dispute between any Lender and the Administrative Agent arising out of the
Loans.
11.06 Amendments. No amendment, modification or waiver of any provision
of this Agreement or any of the Loan Documents and no consent by the Lenders to
any departure therefrom by the Borrowers shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the
Borrowers and the Administrative Agent, but only upon having received the
written consent of the Required Lenders, and the same shall then be effective
only for the period and on the conditions and for the specific instances and
purposes specified in such writing; provided, however, that, no such amendment,
modification or waiver
(i) which changes, extends or waives any provision of Section
10.10 or this Section 11.06, the amount of or the due date of any
scheduled installment of any Obligation or the amount of the Total
Revolving Credit Commitment, which decreases the rate of interest
payable on any Obligation, decreases fees stated herein, changes the
definition of Required Lenders, which permits an assignment by the
Borrowers of their Obligations hereunder, which reduces the required
consent of Lenders provided hereunder, which increases, decreases or
extends the Revolving Credit Maturity Date or the Revolving Credit
Commitment of any Lender, which releases any Obligations, which
increases or extends the
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Letter of Credit Facility or which waives any condition to the making
of any Loan shall be effective unless in writing and signed by each of
the Lenders; provided, however, the Required Lenders may in their sole
discretion waive any Default or Event of Default (other than any Event
of Default under Section 9.01(a), (b), (g) or (h) which shall require
the agreement of each Lender); or
(ii) which affects the rights, privileges, immunities or
indemnities of the Administrative Agent shall be effective unless in
writing and signed by the Administrative Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Administrative Agent and the Lenders, execution by the
Administrative Agent shall not be deemed conclusive evidence that the
Administrative Agent has obtained the written consent of the Required Lenders.
No notice to or demand on the Borrowers in any case shall entitle the Borrowers
to any other or further notice or demand in similar or other circumstances,
except as otherwise expressly provided herein. No delay or omission on any
Lender's or the Administrative Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.08 WAIVERS BY BORROWERS. IN ANY LITIGATION IN ANY COURT WITH RESPECT
TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE LOANS, ANY OF THE
NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, OR ANY INSTRUMENT OR
DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR
THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR
ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWERS AND THE
LENDERS OR THE ADMINISTRATIVE AGENT; THE BORROWERS AND EACH LENDER AND THE
ADMINISTRATIVE AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
11.09 Termination. The termination of this Agreement shall not affect
any rights of the Borrowers, the Lenders or the Administrative Agent or any
obligation of the Borrowers, the Lenders or the Administrative Agent, arising
prior to the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into or rights
created or obligations incurred prior to such termination have been fully
disposed of, concluded or liquidated and the Obligations arising prior to or
after such termination have been irrevocably paid in full. The rights granted to
the Administrative Agent for the benefit of the Lenders hereunder and under the
other Loan Documents shall continue in full force and effect, notwithstanding
the termination of this Agreement, until all of the Obligations have been paid
in full after the termination hereof (other than Obligations in the nature of
continuing indemnities or expense reimbursement
83
obligations not yet due and payable) or the Borrowers have furnished the Lenders
and the Administrative Agent with an indemnification satisfactory to the
Administrative Agent and each Lender with respect thereto. All representations,
warranties, covenants, waivers and agreements contained herein shall survive
termination hereof until payment in full of the Obligations unless otherwise
provided herein. Notwithstanding the foregoing, if after receipt of any payment
pursuant to the Loan Documents of all or any part of the Obligations, any Lender
is for any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and the Borrowers shall be liable to, and shall indemnify
and hold such Lender harmless for, the amount of such payment surrendered until
such Lender shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
11.10 Governing Law. All documents executed pursuant to the
transactions contemplated herein, including, without limitation, this Agreement
and each of the Loan Documents shall be deemed to be contracts made under, and
for all purposes shall be construed in accordance with, the internal laws and
judicial decisions of the State of Florida. The Borrowers hereby submit to the
jurisdiction and venue of the state and federal courts of Florida for the
purposes of resolving disputes hereunder or for the purposes of collection.
11.11 Indemnification. (a) In consideration of the execution and
delivery of this Agreement by the Administrative Agent and each Lender and the
extension of the Letter of Credit Commitments, the Swing Line and Revolving
Credit Commitments, the Borrowers hereby indemnify, exonerate and hold the
Administrative Agent, each Lender and any Affiliate thereof and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of
any Loan or supported by any Letter of Credit, except for any such Indemnified
Liabilities arising for the account of a particular Indemnified Party by reason
of the final adjudication of bad faith, gross negligence or willful misconduct
with respect to such Indemnified Party or an officer, director, employee or
agent of such Indemnified Party, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The
provisions of this Section 11.11(a) shall survive repayment of the Obligations,
the occurrence of the Revolving Credit Termination Date, and expiration or
termination of this Agreement.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.11 against the indemnifying party, the party entitled to
such indemnification shall give written notice
84
to the indemnifying party promptly after the party entitled to indemnification
receives actual notice of any claim, action, suit, loss, cost, liability, damage
or expense incurred or instituted for which the indemnification is sought. If
requested by the Borrowers in writing, and so long as no Default or Event of
Default shall have occurred and be continuing, such Indemnified Party shall
contest at the expense of the Borrowers the validity, applicability and/or
amount of such suit, action, or cause of action to the extent such contest may
be conducted in good faith on legally supportable grounds. If any lawsuit or
enforcement action is filed against any party entitled to the benefit of
indemnity under this Section 11.11, written notice thereof shall be given to the
indemnifying party as soon as practicable (and in any event within 20 days after
the service of the citation or summons). Notwithstanding the foregoing, the
failure so to notify the indemnifying party as provided in this Section will
relieve the indemnifying party from liability hereunder only if and to the
extent that such failure results in the forfeiture by the indemnifying party of
any substantive rights or defenses and only to the extent of such forfeiture.
After such notice, if the indemnifying party shall acknowledge in writing to the
Indemnified Party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such lawsuit or action, then, so
long as no Default or Event of Default shall occur and be continuing, the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such lawsuit or action and to employ and engage
counsel of its own choice reasonably acceptable to the Indemnified Party to
handle and defend the same, at the indemnifying party's cost, risk and expense,
provided, however, that the indemnifying party and its counsel shall proceed
with diligence and in good faith with respect thereto. If (i) the engagement of
such counsel by the indemnifying party would present a conflict of interest
which would prevent such counsel from effectively defending such action on
behalf of the Indemnified Party, (ii) the defendants in, or targets of, any such
lawsuit or action include both the Indemnified Party and indemnifying party, and
the Indemnified Party reasonably concludes that there may be legal defenses
available to it that are different from or in addition to those available to the
indemnifying party, (iii) the indemnifying party fails to assume the defense of
the lawsuit or action or to employ counsel reasonably satisfactory to such
Indemnified Party, in either case in a timely manner, or (iv) a Default or Event
of Default shall occur and be continuing, then such Indemnified Party may employ
separate counsel to represent or defend it in any such action or proceeding and
the indemnifying party will pay the fees and disbursements of such counsel,
provided, however, that each Indemnified Party shall endeavor, but shall not be
obligated, in connection with any matter covered by this Section 11.11 which
also involves other Indemnified Parties, to use reasonable efforts to avoid
unnecessary duplication of efforts by counsel for all Indemnified Parties and
provided further, that in no event shall the Borrowers be liable for the fees
and expenses of more than one separate firm for the Indemnified Parties. The
Indemnified Party shall cooperate (with all out of pocket costs and expenses
associated therewith to be paid by the indemnifying party) in all reasonable
respects with the indemnifying party and such attorneys in the investigation,
trial and defense of such lawsuit or action and any appeal arising therefrom;
provided, however, that the Indemnified Party may, at its own cost (except as
set forth in, and in accordance with, the foregoing sentence), participate in
the investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom. If the indemnifying party has acknowledged to the Indemnified
Party its obligation to indemnify hereunder, the Indemnified Party, so long as
no Default or Event of Default shall have occurred and be continuing, shall not
settle such lawsuit or enforcement action without the prior written consent of
the indemnifying party and, if the indemnifying party has not so acknowledged
its obligation, the Indemnified Party shall not settle such lawsuit or
enforcement action without giving 20 days' prior written notice of such
settlement
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and its terms to the indemnifying party. Notwithstanding anything herein to the
contrary, (x) if an Indemnified Party decides to forego any right to
indemnification hereunder with respect to any pending lawsuit or enforcement
action, such Indemnified Party shall be entitled to settle such lawsuit or
enforcement action with respect to any indemnification rights foregone, and (y)
if either Borrower, or the Borrowers jointly assume control over any pending
lawsuit or enforcement action, neither Borrower shall agree to any dismissal or
settlement of such litigation without the written consent of any Indemnified
Party if such dismissal or settlement would require any admission or
acknowledgment of culpability or wrongdoing by such Indemnified Party or provide
for any non-monetary relief to be performed by such Indemnified Party.
11.12 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
11.13 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.14 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
11.16 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
Florida law, shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrowers shall
pay to the Administrative Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect.
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Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrowers to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes
interest in excess of the Highest Lawful rate, then any such excess shall be
canceled automatically and, if previously paid, shall at such Lender's option be
applied to the outstanding amount of the Loans made hereunder or be refunded to
the Borrowers. As used in this paragraph, the term "Highest Lawful Rate" means
the maximum lawful interest rate, if any, that at any time or from time to time
may be contracted for, charged, or received under the laws applicable to such
Lender which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
11.17 Consents to Renewals, Modifications and Other Actions and Events.
This Agreement and all of the obligations of the Borrowers hereunder shall
remain in full force and effect without regard to and shall not be released,
affected or impaired by: (a) any amendment, assignment, transfer, modification
of or addition or supplement to the Obligations, this Agreement, any Note or any
other Loan Document; (b) any extension, indulgence, increase in the Obligations
or other action or inaction in respect of any of the Loan Documents or otherwise
with respect to the Obligations, or any acceptance of security for, or
guaranties of, any of the Obligations or Loan Documents, or any surrender,
release, exchange, impairment or alteration of any such security or guaranties
including without limitation the failing to perfect a security interest in any
such security or abstaining from taking advantage or of realizing upon any
guaranties or upon any security interest in any such security; (c) any default
by any Borrower under, or any lack of due execution, invalidity or
unenforceability of, or any irregularity or other defect in, any of the Loan
Documents; (d) any waiver by the Lenders or any other person of any required
performance or otherwise of any condition precedent or waiver of any requirement
imposed by any of the Loan Documents, any guaranties or otherwise with respect
to the Obligations; (e) any exercise or non-exercise of any right, remedy, power
or privilege in respect of this Agreement or any of the other Loan Documents;
(f) any sale, lease, transfer or other disposition of the assets of any Borrower
or any consolidation or merger of any Borrower with or into any other person,
corporation, or entity, or any transfer or other disposition by any Borrower or
any other holder of any shares of capital stock of any Borrower; (g) any
bankruptcy, insolvency, reorganization or similar proceedings involving or
affecting any Borrower; (h) the release or discharge of any Borrower from the
performance or observance of any agreement, covenant, term or condition under
any of the Obligations or contained in any of the Loan Documents by operation of
law; or (i) any other cause whether similar or dissimilar to the foregoing
which, in the absence of this provision, would release, affect or impair the
obligations, covenants, agreements and duties of any Borrower hereunder,
including without limitation any act or omission by the Administrative Agent,
any Lender or any other person which increases the scope of such Borrower's
risk, and in each case described in this paragraph whether or not any Borrower
shall have notice or knowledge of any of the foregoing, each of which is
specifically waived by each Borrower. Each Borrower warrants to the
Administrative Agent and the Lenders that it has adequate means to obtain from
each other Borrower on a continuing basis information concerning the financial
condition and other matters with respect to the Borrowers and that it is not
relying on the Administrative Agent or the Lenders to provide such information
either now or in the future.
11.18 Confidentiality. Except as provided in Section 7.01(e) hereof,
the Lenders shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance
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with their customary procedures for handling confidential information of this
nature but may, in any event, make disclosures reasonably required in connection
with the contemplated transfer or assignment of any of the Loans or
participations or as required or requested by any legal process or applicable
regulatory agency or to its attorneys or accountants in the ordinary course of
business; provided that, unless specifically prohibited by applicable law or
court order, each Lender shall use all reasonable efforts to notify the
Borrowers of any request under legal process by any governmental agency or
representative thereof for disclosure of such information unless prohibited by
such legal process but the failure to notify Borrowers shall not affect the
Borrowers' obligations to make payment to the Lenders hereunder and under the
Notes.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
REPUBLIC INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Treasurer
REPUBLIC RESOURCES COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
89
AMENDMENT AGREEMENT NO. 1
TO AMENDED AND RESTATED
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 22nd day of
October, 1999, by and among AUTONATION, INC., formerly known as Republic
Industries, Inc., a Delaware corporation (herein called the "Company"), REPUBLIC
RESOURCES COMPANY, a Delaware corporation ("RRC" and together with the Company,
each a Borrower, and collectively, the "Borrowers") BANK OF AMERICA, N.A.
(successor in interest to NationsBank, N.A.) (the "Administrative Agent"), as
Administrative Agent for the lenders (the "Lenders") party to an Amended and
Restated Credit Facilities and Reimbursement Agreement dated as of March 12,
1999, among such Lenders, the Borrowers and the Administrative Agent (the
"Agreement"), and the Lenders party to this Amendment Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Administrative Agent and the Lenders have
entered into the Agreement pursuant to which the Lenders have agreed to make
revolving loans to the Borrower in the principal amount of $1,000,000,000 as
evidenced by the Notes (as defined in the Agreement); and
WHEREAS, the Borrowers have requested that the Administrative Agent and
the Lenders amend the Agreement as provided herein; and
WHEREAS, upon the terms and conditions contained herein, the
Administrative Agent and the Lenders are willing to amend the Agreement;
NOW, THEREFORE, the Borrowers, the Administrative Agent and the
Lenders do hereby agree as follows:
1. Definitions. The term "Agreement" as used herein and the term
"Credit Agreement" as used in the Loan Documents (as defined in the Agreement)
shall mean the Agreement as hereby amended and modified, and as further amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof and in effect. Unless the context
90
otherwise requires, all terms used herein without definition shall have the
definition provided therefor in the Agreement.
2. Amendments. The Agreement is hereby amended, effective as of the
date hereof, as follows:
(a) Section 1.01 is hereby amended by inserting the following
new definitions to Section 1.01 in the appropriate alphabetical order:
"'Rental Car Group Assets' means the capital stock of
all Subsidiaries of the Borrower which constitute its rental
car group, including the Alamo Rent-A-Car, Inc., National Car
Rental System, Inc. and Spirit Rent-A-Car, Inc. d/b/a CarTemps
USA and each of their Subsidiaries and the assets of all of
such Subsidiaries;
`Rental Car Group Liabilities' means (i) that
Indebtedness of Subsidiaries of Borrower which constitute the
rental car group and (ii) all Vehicle Secured Indebtedness of
Subsidiaries of the Borrower which constitute the rental car
group;
`Rental Car Group Sale' means the sale, transfer or
disposition of all or a part of the Rental Car Group Assets,
including by split-up, spin-off or otherwise so long as all
related Rental Car Group Liabilities are either transferred or
assumed;"
(b) Section 8.05 is amended by deleting the phrase "all or any
portion of the capital stock or assets or RSG" and inserting in lieu
thereof the following:
"(a) all or any portion of the capital stock or assets of RSG
and (b) the Rental Car Group Assets".
(c) Section 8.07 is amended by adding, immediately after the
phrase "under Section 8.06(ii) hereof", the following:
"and other than the Rental Car Group Sale,"
3. Representations and Warranties. Each Borrower hereby certifies that:
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(a) The representations and warranties made by the Borrower in
Article VI of the Agreement are true on and as of the date hereof
except that the financial statements referred to in Section 6.01 shall
be those most recently furnished to each Lender pursuant to Section
7.01(a) and (b);
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
date of the most recent financial reports of the Borrower received by
each Lender under Section 7.01 of the Agreement, other than changes in
the ordinary course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 of the Agreement have not been, adversely affected
in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Conditions. As a condition to the effectiveness of this Amendment
Agreement, the Required Lenders shall have executed this Amendment Agreement and
the Borrowers shall deliver, or cause to be delivered to the Administrative
Agent, the following:
(a) twenty (20) executed counterparts of this Amendment
Agreement; and
(b) copies of all additional agreements, instruments and
documents which the Administrative Agent may reasonably
92
request, such documents, when appropriate, to be certified by
appropriate governmental authorities.
5. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or conditions, or of
any proceeding or succeeding breach thereof.
6. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AUTONATION, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ ------------------------------
Title: Vice President Finance
and Treasurer
-----------------------------
REPUBLIC RESOURCES COMPANY
WITNESS:
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ ------------------------------
Title: Treasurer
-----------------------------