EXHIBIT 10.7
EXECUTION COPY
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of September 14, 2001
among
IESI CORPORATION (the "PARENT")
and its Subsidiaries listed on SCHEDULE 2 hereto
(collectively, the "BORROWERS"),
THE LENDERS LISTED ON SCHEDULE 1 HERETO,
FLEET NATIONAL BANK, as Administrative Agent,
LASALLE BANK NATIONAL ASSOCIATION, as Documentation Agent,
CREDIT SUISSE FIRST BOSTON, as Syndication Agent, and
CITICORP NORTH AMERICA, INC., as Syndication Agent
with
FLEET SECURITIES, INC., as Arranger
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION........................................... 1
1.1. DEFINITIONS............................................................ 1
1.2. RULES OF INTERPRETATION................................................20
2. THE REVOLVING CREDIT FACILITY.....................................................21
2.1. COMMITMENT TO LEND.....................................................21
2.2. INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT; REALLOCATION............22
2.3. COMMITMENT FEE.........................................................23
2.4. REDUCTION OF TOTAL REVOLVING CREDIT COMMITMENT.........................23
2.5. THE REVOLVING CREDIT NOTES.............................................23
2.6. INTEREST ON REVOLVING CREDIT LOANS.....................................24
2.7. REQUESTS FOR REVOLVING CREDIT LOANS....................................24
2.8. CONVERSION OPTIONS.....................................................25
2.8.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.......25
2.8.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN...............25
2.8.3. EURODOLLAR RATE LOANS.......................................25
2.9. FUNDS FOR REVOLVING CREDIT LOAN........................................26
2.9.1. FUNDING PROCEDURES..........................................26
2.9.2. ADVANCES BY ADMINISTRATIVE AGENT............................26
2.10. SWING LINE LOANS; SETTLEMENTS.........................................27
2.11. REPAYMENT OF THE REVOLVING CREDIT LOANS...............................29
2.11.1. MATURITY....................................................29
2.11.2. MANDATORY REPAYMENT OF THE REVOLVING CREDIT LOANS...........29
2.11.3. OPTIONAL PREPAYMENT OF THE REVOLVING CREDIT LOANS...........30
3. THE TERM LOAN.....................................................................30
3.1. COMMITMENT TO LEND.....................................................30
3.2. INCREASE IN TERM LOAN; REALLOCATION....................................30
3.3. THE TERM NOTES.........................................................31
3.4. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN.............32
3.5. OPTIONAL PREPAYMENT OF TERM LOAN.......................................32
3.6. MANDATORY PREPAYMENTS OF THE TERM LOAN.................................32
3.6.1. PREPAYMENT OF SUBORDINATED DEBT.............................32
3.6.2. PREPAYMENT OF TERM LOAN WITH PROCEEDS OF SUBORDINATED DEBT..33
3.6.3. PAYMENT PROVISIONS..........................................33
3.7. INTEREST ON TERM LOAN..................................................33
3.7.1. INTEREST RATES..............................................33
3.7.2. NOTIFICATION BY BORROWERS...................................34
3.7.3. AMOUNTS, ETC................................................34
4. LETTERS OF CREDIT.................................................................34
4.1. LETTER OF CREDIT COMMITMENTS...........................................34
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT.......................34
4.1.2. LETTER OF CREDIT APPLICATIONS...............................35
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4.1.3. TERMS OF LETTERS OF CREDIT..................................35
4.1.4. REIMBURSEMENT OBLIGATIONS OF REVOLVING CREDIT LENDERS.......35
4.1.5. PARTICIPATIONS OF REVOLVING CREDIT LENDERS..................35
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS..............................36
4.3. LETTER OF CREDIT PAYMENTS..............................................37
4.4. OBLIGATIONS ABSOLUTE...................................................37
4.5. RELIANCE BY ISSUER.....................................................38
4.6. LETTER OF CREDIT FEE...................................................38
5. CERTAIN GENERAL PROVISIONS........................................................39
5.1. FEES...................................................................39
5.2. FUNDS FOR PAYMENTS.....................................................39
5.2.1. PAYMENTS TO ADMINISTRATIVE AGENT............................39
5.2.2. NO OFFSET, ETC..............................................39
5.2.3. NON-U.S. LENDERS............................................39
5.3. COMPUTATIONS...........................................................40
5.4. INABILITY TO DETERMINE EURODOLLAR RATE.................................41
5.5. ILLEGALITY.............................................................41
5.6. ADDITIONAL COSTS, ETC..................................................41
5.7. CAPITAL ADEQUACY.......................................................43
5.8. CERTIFICATE............................................................43
5.9. INDEMNITY..............................................................43
5.10. DEFAULT INTEREST.......................................................44
5.11. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS................44
6. COLLATERAL SECURITY...............................................................47
7. REPRESENTATIONS AND WARRANTIES....................................................47
7.1. CORPORATE AUTHORITY....................................................47
7.1.1. INCORPORATION; GOOD STANDING................................47
7.1.2. AUTHORIZATION...............................................48
7.1.3. ENFORCEABILITY..............................................48
7.2. GOVERNMENTAL APPROVALS.................................................48
7.3. TITLE TO PROPERTIES; LEASES............................................48
7.4. FINANCIAL STATEMENTS AND PROJECTIONS...................................48
7.4.1. FISCAL YEAR.................................................48
7.4.2. FINANCIAL STATEMENTS........................................48
7.4.3. PROJECTIONS.................................................49
7.5. NO MATERIAL ADVERSE CHANGES, ETC.......................................49
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC...................................49
7.7. LITIGATION.............................................................49
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC...................................49
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC...........................49
7.10. TAX STATUS.............................................................50
7.11. NO EVENT OF DEFAULT....................................................50
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS............................50
7.13. ABSENCE OF FINANCING STATEMENTS, ETC...................................50
7.14. PERFECTION OF SECURITY INTEREST........................................50
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7.15. CERTAIN TRANSACTIONS...................................................50
7.16. EMPLOYEE BENEFIT PLANS.................................................51
7.16.1. IN GENERAL..................................................51
7.16.2. TERMINABILITY OF WELFARE PLANS..............................51
7.16.3. GUARANTEED PENSION PLANS....................................51
7.16.4. MULTIEMPLOYER PLANS.........................................52
7.17. USE OF PROCEEDS........................................................52
7.17.1. GENERAL.....................................................52
7.17.2. REGULATIONS U AND X.........................................52
7.17.3. INELIGIBLE SECURITIES.......................................52
7.18. ENVIRONMENTAL COMPLIANCE...............................................52
7.19. SUBSIDIARIES, ETC......................................................54
7.20. DISCLOSURE.............................................................54
7.21. CAPITALIZATION.........................................................54
8. AFFIRMATIVE COVENANTS.............................................................55
8.1. PUNCTUAL PAYMENT.......................................................55
8.2. MAINTENANCE OF OFFICE..................................................55
8.3. RECORDS AND ACCOUNTS...................................................55
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.....................55
8.5. NOTICES................................................................57
8.5.1. DEFAULTS....................................................57
8.5.2. ENVIRONMENTAL EVENTS........................................57
8.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL....................58
8.5.4. NOTICE OF LITIGATION AND JUDGMENTS..........................58
8.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES.............................58
8.7. INSURANCE..............................................................59
8.8. TAXES..................................................................59
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC................................59
8.9.1. GENERAL.....................................................59
8.9.2. COMMUNICATIONS WITH ACCOUNTANTS.............................59
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.................60
8.11. EMPLOYEE BENEFIT PLANS.................................................60
8.12. USE OF PROCEEDS........................................................60
8.13. INTEREST RATE PROTECTION...............................................60
8.14. NEW BORROWERS..........................................................60
8.15. CLOSURE AND POST CLOSURE LIABILITIES...................................61
8.16. FURTHER ASSURANCES.....................................................61
8.17. ENVIRONMENTAL INDEMNIFICATION..........................................61
8.18. POST-CLOSING REQUIREMENT...............................................61
9. CERTAIN NEGATIVE COVENANTS........................................................62
9.1. RESTRICTIONS ON INDEBTEDNESS...........................................62
9.2. RESTRICTIONS ON LIENS..................................................63
9.2.1. PERMITTED LIENS.............................................63
9.2.1. RESTRICTIONS ON NEGATIVE PLEDGES AND UPSTREAM
LIMITATIONS...............................................64
9.3. RESTRICTIONS ON INVESTMENTS............................................65
9.4. RESTRICTED PAYMENTS; AMENDMENTS TO DOCUMENTS...........................65
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9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS........................66
9.5.1. MERGERS AND ACQUISITIONS....................................66
9.5.2. DISPOSITION OF ASSETS.......................................67
9.6. SALE AND LEASEBACK.....................................................68
9.7. COMPLIANCE WITH ENVIRONMENTAL LAWS.....................................68
9.8. SUBORDINATED DEBT......................................................68
9.9. EMPLOYEE BENEFIT PLANS.................................................68
9.10. BUSINESS ACTIVITIES....................................................69
9.11. FISCAL YEAR............................................................69
9.12. TRANSACTIONS WITH AFFILIATES...........................................69
9.13. NEW FRANCHISE AGREEMENTS...............................................69
10. FINANCIAL COVENANTS...............................................................69
10.1. LEVERAGE RATIO.........................................................69
10.2. INTEREST COVERAGE......................................................69
10.3. CONSOLIDATED NET WORTH.................................................70
10.4. CAPITAL EXPENDITURES...................................................70
11. CLOSING CONDITIONS................................................................70
11.1. LOAN DOCUMENTS.........................................................70
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS................................70
11.3. CORPORATE OR OTHER ACTION..............................................70
11.4. INCUMBENCY CERTIFICATE.................................................71
11.5. VALIDITY OF LIENS......................................................71
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS.........................71
11.7. CERTIFICATES OF INSURANCE..............................................71
11.8. CONSOLIDATED TOTAL FUNDED DEBT TO PRO FORMA EBITDA.....................71
11.9. RECEIPT OF THE SERIES D CONVERTIBLE PREFERRED STOCK PROCEEDS...........71
11.10. SUBORDINATED DEBT......................................................71
11.11. OPINION OF COUNSEL.....................................................72
11.12. ENVIRONMENTAL PERMIT CERTIFICATE.......................................72
11.13. PAYMENT OF FEES........................................................72
12. CONDITIONS TO ALL BORROWINGS......................................................72
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT..............................72
12.2. NO LEGAL IMPEDIMENT....................................................73
12.3. PROCEEDINGS AND DOCUMENTS..............................................73
13. EVENTS OF DEFAULT; ACCELERATION; ETC..............................................73
13.1. EVENTS OF DEFAULT AND ACCELERATION.....................................73
13.2. TERMINATION OF COMMITMENTS.............................................76
13.3. REMEDIES...............................................................76
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS....................................76
14. THE AGENTS........................................................................77
14.1. AUTHORIZATION..........................................................77
14.2. EMPLOYEES AND ADMINISTRATIVE AGENTS....................................78
14.3. NO LIABILITY...........................................................78
14.4. NO REPRESENTATIONS.....................................................78
14.4.1. GENERAL.....................................................78
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14.4.2. CLOSING DOCUMENTATION, ETC..................................79
14.5. PAYMENTS...............................................................79
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT............................79
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT........................79
14.5.3. DELINQUENT LENDERS..........................................80
14.6. HOLDERS OF NOTES.......................................................80
14.7. INDEMNITY..............................................................80
14.8. ADMINISTRATIVE AGENT AS LENDER.........................................81
14.9. RESIGNATION............................................................81
14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT.........................81
14.11. DUTIES IN THE CASE OF ENFORCEMENT......................................81
14.12. DUTIES OF DOCUMENTATION AGENT AND SYNDICATION AGENTS...................82
15. ASSIGNMENT AND PARTICIPATION......................................................82
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS....................................82
15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.........83
15.3. REGISTER...............................................................84
15.4. NEW NOTES..............................................................84
15.5. PARTICIPATIONS.........................................................84
15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS..................85
15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS....................................85
15.8. ASSIGNMENT BY BORROWERS................................................86
16. PROVISIONS OF GENERAL APPLICATIONS................................................86
16.1. SETOFF.................................................................86
16.2. EXPENSES...............................................................86
16.3. INDEMNIFICATION........................................................87
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..........................88
16.4.1. CONFIDENTIALITY.............................................88
16.4.2. PRIOR NOTIFICATION..........................................89
16.4.3. OTHER.......................................................89
16.5. SURVIVAL OF COVENANTS, ETC.............................................89
16.6. NOTICES................................................................89
16.7. GOVERNING LAW..........................................................90
16.8. HEADINGS...............................................................91
16.9. COUNTERPARTS...........................................................91
16.10. ENTIRE AGREEMENT, ETC..................................................91
16.11. WAIVER OF JURY TRIAL...................................................91
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC.....................................92
16.13. BORROWERS' REPRESENTATIVE..............................................93
16.14. SEVERABILITY...........................................................93
17. PARI PASSU TREATMENT..............................................................93
18. TRANSITIONAL ARRANGEMENTS.........................................................94
18.1. PRIOR CREDIT AGREEMENT SUPERSEDED......................................94
18.2. RETURN AND SUBSTITUTION OF NOTES.......................................94
18.3. INTEREST AND FEES UNDER PRIOR CREDIT AGREEMENT.........................95
18.4. MISCELLANEOUS..........................................................95
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EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Loan Request
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Term Note
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Joinder Agreement
EXHIBIT G Form of Environmental Permit Certificate
EXHIBIT H Form of Assignment and Acceptance
EXHIBIT I Form(s) of Subordinated Debt
SCHEDULES
SCHEDULE 1 Lenders and Commitments
SCHEDULE 2 Subsidiaries of the Parent
SCHEDULE 4.1.1 Existing Letters of Credit
SCHEDULE 7.3 Title to Properties; Leases
SCHEDULE 7.7 Litigation
SCHEDULE 7.15 Certain Transactions
SCHEDULE 7.18 Environmental Compliance
SCHEDULE 7.21 Capitalization
SCHEDULE 8.7 Insurance
SCHEDULE 9.1 Existing Indebtedness
SCHEDULE 9.2 Existing Liens
SCHEDULE 9.3 Existing Investments
SCHEDULE 9.12 Transactions With Affiliates
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN
AGREEMENT is made as of September 14, 2001, by and among (a) IESI Corporation, a
Delaware corporation (the "PARENT"), and the subsidiaries of the Parent
identified on SCHEDULE 2 hereto (the "SUBSIDIARIES," and collectively with the
Parent, the "BORROWERS"), (b) the lenders listed on SCHEDULE 1 hereto
(collectively, the "LENDERS"), (c) FLEET NATIONAL BANK ("FLEET"), as
administrative agent for itself and the other Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"), (d) LASALLE Bank National ASSOCIATION, as documentation
agent for itself and the other Lenders (in such capacity, the "DOCUMENTATION
AGENT"), and (e) CREDIT SUISSE FIRST BOSTON, as syndication agent for itself and
the other Lenders, and CITICORP NORTH AMERICA, INC., as syndication agent for
itself and the other Lenders (collectively in such capacities, the "SYNDICATION
AGENTS").
WHEREAS, pursuant to a Third Amended and Restated Revolving Credit
Agreement, dated as of August 31, 1999 (as amended and in effect from time to
time, the "PRIOR CREDIT AGREEMENT"), by and among the Borrowers, Fleet and the
other lenders identified on SCHEDULE 2 thereto as Banks (the "PRIOR BANKS"), and
Fleet as the Administrative Agent thereunder, the Prior Banks made revolving
credit loans and other extensions of credit to the Borrowers for general
corporate and working capital purposes, capital expenditures and to fund certain
acquisitions permitted thereunder; and
WHEREAS, the Borrowers have requested, among other things, to amend and
restate the Prior Credit Agreement on the terms and conditions set forth herein
and the Lenders, the Administrative Agent and the Documentation Agent are
willing to amend and restate the Prior Credit Agreement on the terms and
conditions set forth herein;
NOW THEREFORE, the Borrowers, the Lenders, the Administrative Agent and
the Documentation Agent agree that, as of the Closing Date, the Prior Credit
Agreement is hereby amended and restated in its entirety as set forth herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Credit Agreement
referred to below:
ACCOUNTANTS. Ernst & Young, LLP or such other independent certified
public accountants satisfactory to the Administrative Agent.
ACKNOWLEDGEMENT AND CONSENT. The Acknowledgment and Consent, dated as of
the Closing Date and as the same may be amended and in effect from time to time,
by and among IESI TX, IESI DE and the Administrative Agent and in form and
substance satisfactory to the Administrative Agent.
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ADJUSTMENT DATE. The first Business Day immediately following the date
on which a Compliance Certificate is to be delivered by the Borrowers pursuant
to Section 8.4(d).
ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent's office located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as
the Administrative Agent may designate from time to time.
ADMINISTRATIVE AGENT. Fleet National Bank, acting as administrative
agent for the Lenders, and each other Person appointed as the successor
Administrative Agent in accordance with Section 14.9.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other
counsel as may be approved by the Administrative Agent.
AFFILIATE. Any Person that would be considered to be an affiliate of the
Borrowers or any Lender, as the case may be, under Rule 144(a) of the Rules and
Regulations of the Securities and Exchange Commission, as in effect on the date
hereof, if the Borrowers or such Lender, as the case may be, were issuing
securities.
APPLICABLE COMMITMENT FEE RATE. As set forth in the table in the
definition of "APPLICABLE MARGIN" under the heading "APPLICABLE COMMITMENT FEE
RATE".
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "RATE
ADJUSTMENT PERIOD"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Pricing Ratio, as determined for the Reference
Period of the Borrowers ending on the fiscal quarter ended immediately prior to
the applicable Rate Adjustment Period.
REVOLVING CREDIT LOANS TERM LOAN
-------------------------- ------------------
BASE BASE APPLICABLE
RATE EURODOLLAR RATE EURODOLLAR COMMITMENT
LEVEL PRICING RATIO LOANS RATE LOANS LOANS RATE LOANS FEE RATE
---------------------------------------------------------------------------------------------------
I LESS THAN 2.50:1 0.25% 2.25% 1.25% 3.25% 0.375%
---------------------------------------------------------------------------------------------------
II GREATER THAN OR EQUAL TO 2.50:1 0.50% 2.50% 1.25% 3.25% 0.500%
and
LESS THAN 3.00:1
---------------------------------------------------------------------------------------------------
III GREATER THAN OR EQUAL TO 3.00:1 0.75% 2.75% 1.25% 3.25% 0.500%
and
LESS THAN 3.50:1
---------------------------------------------------------------------------------------------------
IV GREATER THAN OR EQUAL TO 3.50:1 1.00% 3.00% 1.25% 3.25% 0.500%
---------------------------------------------------------------------------------------------------
Notwithstanding the foregoing, (a) for the Loans outstanding and the
Letter of Credit Fees and the Commitment Fee payable during the period
commencing on the Closing Date through the date which is six (6) months
following the Closing
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Date, the Applicable Margin shall be the Applicable Margin set forth in Level II
above, and (b) if the Borrowers fail to deliver any Compliance Certificate
pursuant to Section 8.4(d) hereof then, for the period commencing on the next
Adjustment Date to occur subsequent to such failure through the date immediately
following the date on which such Compliance Certificate is delivered, the
Applicable Margin shall be the highest Applicable Margin set forth above.
APPLICABLE PENSION LEGISLATION. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrowers.
ARRANGER. Fleet Securities, Inc.
ASSIGNMENT AND ACCEPTANCE. See Section 15.1.
BALANCE SHEET DATE. December 31, 2000.
BASE RATE. The higher of (a) the variable annual rate of interest so
designated from time to time by Fleet as its "PRIME RATE", such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (b) one-half of one percent (0.5%) above the
Federal Funds Effective Rate. For the purposes of this definition, "FEDERAL
FUNDS EFFECTIVE RATE" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent. Changes in the Base Rate resulting from any changes in
Fleet's "PRIME RATE" shall take place immediately without notice or demand of
any kind.
BASE RATE LOANS. Revolving Credit Loans and all or any portion of the
Term Loan bearing interest calculated by reference to the Base Rate.
BENEFIT AMOUNT. See Section 5.11(f).
BORROWERS. As defined in the preamble hereto.
BROOKLYN TRANSFER STATION ADDBACK AMOUNT. For each fiscal quarter
referenced in the table below, the amount set forth opposite such fiscal quarter
in such table:
FISCAL QUARTER ENDING: AMOUNT
----------------------------------------
September 30, 2000 $ 1,800,000
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December 31, 2000 $ 1,800,000
----------------------------------------
March 31, 2001 $ 1,200,000
----------------------------------------
June 30, 2001 $ 600,000
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated over
a useful life of twelve (12) months or less in accordance with GAAP or (b) any
item obtained through an acquisition permitted by Section 9.5.1.
CAPITAL EXPENDITURES. Amounts paid or Indebtedness incurred by the
Borrowers in connection with the purchase or lease by the Borrowers of Capital
Assets that would be required to be capitalized and shown on the balance sheet
of such Persons in accordance with GAAP, but excluding capital expenditures
required to service any Franchise Agreement which are incurred within a sliding
four month period prior to or after commencement of service for such Franchise
Agreement.
CAPITALIZED LEASES. Leases under which any Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
CAPITAL STOCK. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
CERCLA. See Section 7.18(a).
CFO. Chief Financial Officer.
CHANGE OF CONTROL. An event or series of events by which any Person or
group of Persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act), directly OR indirectly, of twenty percent (20%) or more of the
outstanding shares of Capital Stock of the Parent; or, during any period of
twelve (12) consecutive calendar months, individuals who were directors of the
Parent on the first day of such period shall cease to constitute a majority of
the board of directors of the Parent.
CLOSING DATE. The first date on which the conditions set forth in
Section 11 have been satisfied and any Revolving Credit Loans and the Term Loan
are to be made or any Letter of Credit is to be issued hereunder.
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CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of the Borrowers
that are or are intended to be subject to the Liens created by the Security
Documents.
COMMITMENT FEE. See Section 2.3.
COMPLIANCE CERTIFICATE. See Section 8.4(d).
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrowers, consolidated
in accordance with GAAP.
CONSOLIDATED EARNINGS BEFORE INTEREST AND TAXES OR EBIT. For any period,
the Consolidated Net Income (or Deficit) of the Borrowers PLUS (a) interest
expense and (b) income taxes, to the extent that each was deducted in
determining Consolidated Net Income (or Deficit), in each case determined in
accordance with GAAP.
CONSOLIDATED EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION AND
AMORTIZATION OR EBITDA. For any Reference Period (without duplication), EBIT
PLUS (a) depreciation expense and amortization expense, to the extent that each
was deducted in determining Consolidated Net Income (or Deficit), determined in
accordance with GAAP, (b) for the fiscal quarter ending December 31, 2000,
start-up and integration expenses of up to $150,000 (pre-tax) in the aggregate,
(c) for the fiscal quarter ended September 30, 2001, special charges of up to
$600,000 in the aggregate relating to the cancellations of a high-yield debt
offering and other financing costs, and (d) for the fiscal quarter ended
September 30, 2001, special charges of up to $1,200,000 for the write-off of
landfill development projects.
For purposes of calculating the covenant set forth in Section 10.1 and
the Pricing Ratio, the Borrowers may include the EBITDA for the prior twelve
(12) months of companies acquired by the Borrowers during the respective
reporting period (without duplication with respect to the adjustments set forth
above) only if (A) the financial statements of such acquired Borrowers have been
audited for the period sought to be included by an independent accounting firm
satisfactory to the Administrative Agent, or (B) the Administrative Agent
consents to such inclusion after being furnished with other acceptable financial
statements. Such acquired EBITDA may be further adjusted to add-back
non-recurring private company expenses which are discontinued upon acquisition
(such as owner's compensation), as approved by the Administrative Agent.
Simultaneously with the delivery of the financial statements referred to in (A)
and (B) above, the CFO of the Parent shall deliver to the Administrative Agent a
Compliance Certificate and appropriate documentation certifying the historical
operating results, adjustments and balance sheet of the acquired company.
For purposes of calculating the covenant set forth in Section 10.1 (but
not the Pricing Ratio), the Borrowers may, with the consent of the
Administrative Agent,
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include in the calculation of EBITDA the PRO FORMA projected EBITDA from a new
contract with a municipality for exclusive waste management services which first
became effective within the twelve (12) month period prior to the date of such
calculation, such projections to include the period beginning on the day after
the date of such calculation and ending on the date which is one year following
the date on which such contract first became effective. In addition, for
purposes of calculating the covenant set forth in Section 10.1 (but not the
Pricing Ratio), for each fiscal quarter referenced in the table contained in the
definition of "BROOKLYN TRANSFER STATION ADDBACK AMOUNT", EBITDA shall include,
without duplication, the Brooklyn Transfer Station Addback Amount applicable for
such fiscal quarter.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of the Borrowers, after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP.
CONSOLIDATED NET WORTH. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, LESS, to the extent otherwise includable in the
computations of Consolidated Net Worth, any subscriptions receivable.
CONSOLIDATED TOTAL ASSETS. The sum of all assets ("CONSOLIDATED BALANCE
SHEET ASSETS") of the Borrowers determined on a consolidated basis in accordance
with GAAP.
CONSOLIDATED TOTAL FUNDED DEBT. With respect to the Borrowers, the sum,
without duplication, of (a) the aggregate amount of Indebtedness of the
Borrowers on a consolidated basis, relating to (i) the borrowing of money or the
obtaining of credit, including the issuance of notes, bonds, debentures or
similar debt instruments, (ii) in respect of any Capitalized Leases, (iii) the
deferred purchase price of assets and companies (typically known as holdbacks)
other than short-term trade credit incurred in the ordinary course of business,
and (iv) any unpaid reimbursement obligation under letters of credit
outstanding; PLUS (b) Indebtedness of the type referred to in clause (a) of
another Person guaranteed by the Borrowers.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrowers during such
period on all Indebtedness of the Borrowers outstanding during all or any part
of such period, whether such interest was or is required to be reflected as an
item of expense or capitalized, including payments consisting of interest in
respect of any Capitalized Lease, and including commitment fees, agency fees,
facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money but excluding (a) non-cash charges for
interest expense attributable to loan fees paid in connection with this Credit
Agreement or the Prior Credit Agreement, (b) Series C Convertible Preferred
Stock non-cash dividends that are classified as interest under GAAP, and (c)
Series D Convertible Preferred Stock non-cash dividends that are classified as
interest under GAAP.
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CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrowers
determined on a consolidated basis in accordance with GAAP and classified as
such on the consolidated balance sheet of the Borrowers.
CONSULTING ENGINEER. An environmental consulting firm acceptable to the
Administrative Agent.
CONVERSION REQUEST. A notice given by the Borrowers to the
Administrative Agent of the Borrowers' election to convert or continue a Loan in
accordance with Section 2.8.
CREDIT AGREEMENT. This Fourth Amended and Restated
Revolving Credit and
Term Loan Agreement, including the Schedules and Exhibits hereto, as the same
may be amended, supplemented and otherwise modified and in effect from time to
time.
DEFAULT. See Section 13.1.
DELINQUENT LENDER. See Section 14.5.3.
DISPOSAL (OR DISPOSED). See definition of "RELEASE".
DISTRIBUTION. (a) The declaration or payment of any dividend on or in
respect of any shares of any class of Capital Stock of any Borrower, other than
dividends payable solely in shares of common stock of such Borrower; (b) the
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of Capital Stock of any Borrower, directly or indirectly through a
Subsidiary of such Borrower or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose); (c) the
return of capital by any Borrower to its shareholders as such; or any other
distribution on or in respect of any shares of any class of Capital Stock of any
Borrower.
DOCUMENTATION AGENT. As defined in the preamble hereto.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
DRAWDOWN DATE. The date on which any Revolving Credit Loan or the Term
Loan is made or is to be made, and the date on which any Revolving Credit Loan
is converted or continued in accordance with Section 2.8 or all or any portion
of the Term Loan is converted or continued in accordance with Section 3.7.2.
EBITDA. See definition of "CONSOLIDATED EARNINGS BEFORE INTEREST, TAXES,
DEPRECIATION AND AMORTIZATION".
-8-
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
ENVIRONMENTAL LAWS. See Section 7.18(a).
EPA. See Section 7.18(b).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrowers under Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "EUROCURRENCY
LIABILITIES" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1 hereto; thereafter, such other office of such
Lender, if any, that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the rate per annum for the
Administrative Agent (rounded upwards to the nearest 1/16 of one percent) at
which the Administrative Agent's Eurodollar Lending Office is offered Dollar
deposits two (2) Eurodollar Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Rate Loan to which such Interest Period applies, divided by
(b) a number equal to 1.00 MINUS the Eurocurrency Reserve Rate, if applicable.
EURODOLLAR RATE LOANS. Revolving Credit Loans and all or any portion of
the Term Loan bearing interest calculated by reference to the Eurodollar Rate.
-9-
EVENT OF DEFAULT. See Section 13.1.
FEE LETTER. That certain fee letter, dated as of August 3, 2001, among
the Parent, the Administrative Agent and the Arranger, as the same may be
amended, supplemented or otherwise modified and in effect from time to time.
FEES. Collectively, the Commitment Fee, the Letter of Credit Fees, the
fees payable pursuant to the Fee Letter, and any other fees payable hereunder or
under the other Loan Documents.
FINANCIAL AFFILIATE. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
Section 1843).
FINANCIAL LETTER OF CREDIT. A letter of credit where the event which
triggers payment is financial, such as the failure to pay money, and not
performance-related, such as failure to ship a product or provide a service, as
set forth in greater detail in the letter dated March 30, 1995 from the Board of
Governors of the Federal Reserve System or in any applicable directive or letter
ruling of the Board of Governors of the Federal Reserve System issued subsequent
thereto.
FLEET. Fleet National Bank, a national banking association, in its
individual capacity.
FRANCHISE AGREEMENT. A contract providing for exclusive waste management
services between a municipality and a Borrower.
GAAP OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in
Section 10, whether directly or indirectly through reference to a capitalized
term used therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
the Borrowers reflected in its financial statements for the year ended on the
Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past financial
statements of the Borrowers adopting the same principles, provided that in each
case referred to in this definition of "GAAP" a certified public accountant
would, insofar as the use of such accounting principles is pertinent, be in a
position to deliver an unqualified opinion (other than a qualification regarding
changes in GAAP) as to financial statements in which such principles have been
properly applied.
GOVERNING DOCUMENTS. With respect to any Person, its certificate or
articles of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
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GOVERNMENTAL AUTHORITY. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by any Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
HAZARDOUS SUBSTANCES. See Section 7.18(b).
INDEBTEDNESS. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including (i) secured
royalty payments and (ii) securities repurchase agreements, but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or which are being
contested in good faith),
(e) every obligation of such Person under any Capitalized
Lease or any operating lease having a term longer than three (3) years,
(f) all sales by such Person of (i) accounts or general
intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively "RECEIVABLES"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and not
as a financing arrangement, and together with any obligation of such
Person to pay any discount, interest, fees, indemnities, penalties,
recourse, expenses or other amounts in connection therewith,
(g) every obligation of such Person (an "EQUITY RELATED
PURCHASE OBLIGATION") to purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock issued by such Person or any
rights measured by the value of such Capital Stock,
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(h) every obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement or
arrangement (including, without limitation, caps, floors, collars and
similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices (a
"DERIVATIVE CONTRACT"),
(i) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor and such terms are enforceable
under applicable law,
(j) every obligation, contingent or otherwise, of such
Person guaranteeing, or having the economic effect of guarantying or
otherwise acting as surety for, any obligation of a type described in
any of clauses (a) through (i) (the "PRIMARY OBLIGATION") of another
Person (the "PRIMARY OBLIGOR"), in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such primary obligation,
(ii) to purchase property, securities or services for the purpose of
assuring the payment of such primary obligation, or (iii) to maintain
working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor
to pay such primary obligation, and
(k) any Indebtedness of such Person of a type described in
any of clauses (a) through (j) above which is secured or supported by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured or supported by) any Lien on (or
other right of recourse to or against) property owned or acquired by
such Person.
The "AMOUNT" or "PRINCIPAL AMOUNT" of any Indebtedness at any time of
determination represented by (A) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (B) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (C) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrowers) thereof, excluding amounts representative
of yield or interest earned on such investment, (D) any derivative contract
shall be the maximum amount of any termination or loss payment required to be
paid by such Person if such derivative contract were, at the time of
determination, to be terminated by reason of any event of default or early
termination event thereunder, whether or not such event of default or early
termination event has in fact occurred, (E) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price thereof
inclusive of any accrued and unpaid dividends to be comprised in such
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redemption or purchase price, and (F) any guaranty or other contingent liability
referred to in clause (j) shall be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guaranty or other
contingent obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
INELIGIBLE SECURITIES. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
IESI DE. IESI DE LP Corporation, a Delaware corporation.
IESI TX. IESI TX GP Corporation, a Delaware corporation.
IESI TX LANDFILL. IESI TX Landfill LP, a Texas limited partnership.
INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan; and (b) as to any Eurodollar Rate Loan in respect
of which the Interest Period is (i) three (3) months or less, the last day of
such Interest Period and (ii) more than three (3) months, the date that is three
(3) months from the first day of such Interest Period and, in addition, the last
day of such Interest Period.
INTEREST PERIOD. With respect to each Revolving Credit Loan or all or
any relevant portion of the Term Loan, (a) initially, the period commencing on
the Drawdown Date of such Loan and ending on the last day of one of the periods
set forth below, as selected by the Borrowers in a Loan Request or as otherwise
required by the terms of this Credit Agreement (i) for any Base Rate Loan, the
last day of the calendar quarter; and (ii) for any Eurodollar Rate Loan, one
(1), two (2), three (3) or six (6) months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Revolving Credit Loan or all or such portion of the Term Loan and ending on
the last day of one of the periods set forth above, as selected by the Borrowers
in a Conversion Request; PROVIDED that all of the foregoing provisions relating
to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business Day,
that Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(B) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
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(C) if the Borrowers shall fail to give notice as provided
in Section 2.8, the Borrowers shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan to a Base Rate Loan and
the continuance of all Base Rate Loans as Base Rate Loans on the last
day of the then current Interest Period with respect thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Eurodollar Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond
the Revolving Credit Loan Maturity Date (if comprising a Revolving
Credit Loan) or the Term Loan Maturity Date (if comprising the Term Loan
or a portion thereof) shall end on the Revolving Credit Loan Maturity
Date or (as the case may be) the Term Loan Maturity Date.
INTEREST RATE AGREEMENT. Any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate futures contract,
interest rate option agreement or other similar agreement or arrangement to
which any Borrower is a party, designed to protect such Borrower against
fluctuations in interest rates.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
L/C SUPPORTED IRBs. Industrial revenue bonds or solid waste disposal
bonds issued by or at the request of the Borrowers which are backed by direct
pay Letters of Credit issued hereunder.
LENDER AFFILIATE. (a) With respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, limited
liability
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company, trust or legal entity) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other entity
(whether a corporation, partnership, limited liability company, trust or other
legal entity) that is a fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
LENDERS. Collectively, the Revolving Credit Lenders and the Term
Lenders.
LETTER(S) OF CREDIT. See Section 4.1.1.
LETTER OF CREDIT APPLICATION. See Section 4.1.1.
LETTER OF CREDIT FEE. See Section 4.6.
LETTER OF CREDIT PARTICIPATION. See Section 4.1.4.
LEVERAGE RATIO. As at any date of determination, the ratio of (a)
Consolidated Total Funded Debt outstanding on such date to (b) EBITDA for the
Reference Period ending on such date.
LIEN. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any financing lease
involving substantially the same economic effect as any of the foregoing and the
filing of any financing statement under the UCC or comparable law of any
jurisdiction).
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Fee Letter and the Security Documents.
LOAN REQUEST. See Section 2.7.
LOANS. Collectively, the Revolving Credit Loans, the Swing Line Loans
and the Term Loan.
MATERIAL ACQUISITION. Any acquisition or series of related acquisitions
permitted under Section 9.5.1 for which the aggregate cash consideration
(including the aggregate amount of all Consolidated Total Funded Debt assumed or
incurred) exceeds $12,500,000.
MATERIAL ADVERSE EFFECT. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
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(a) a material adverse effect on the business, properties,
prospects, condition (financial or otherwise), assets, operations or
income of the Borrowers;
(b) an adverse effect on the ability of any of the Borrowers to
perform any of its respective Obligations under any of the Loan
Documents to which such Borrower is a party; or
(c) any impairment of the validity, binding effect or
enforceability of this Credit Agreement or any of the other Loan
Documents, any impairment of the rights, remedies or benefits available
to the Administrative Agent or any Lender under any Loan Document or any
impairment of the attachment, perfection or priority of any Lien of the
Administrative Agent under the Security Documents.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MOODY'S. ▇▇▇▇▇'▇ Investors Services, Inc.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate.
NET CASH PROCEEDS. With respect to any issuance of Subordinated Debt,
the excess of the gross cash proceeds received by such Person from such issuance
after deduction of reasonable and customary transaction expenses (including
without limitation, underwriting discounts and commissions) actually incurred in
connection with such issuance.
NOTES. The Revolving Credit Notes, the Term Notes and the Swing Line
Note.
OBLIGATIONS. All Indebtedness, obligations and liabilities of any of the
Borrowers to any of the Lenders and the Administrative Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or any Interest Rate
Agreement with a Lender or in respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter of Credit Application, Letter
of Credit or other instruments at any time evidencing any thereof.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
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PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
PERFECTION CERTIFICATES. The Perfection Certificates as defined in the
Security Agreement.
PERFORMANCE LETTER OF CREDIT. A letter of credit where the event which
triggers payment is performance-related, such as failure to ship a product or
provide a service, and not a Financial Letter of Credit.
PERMITTED LIENS. Liens permitted by Section 9.2.
PERSON. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental Authority.
PLEDGE AGREEMENT. The Amended and Restated Collateral Assignment of
Partnership Interests, dated as of the Closing Date and as the same may be
amended and in effect from time to time, by and among IESI TX, IESI DE and the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent.
PRICING RATIO. As at any date of determination, the ratio of (a) the sum
of (i) Consolidated Total Funded Debt outstanding on such date PLUS (ii) the
maximum drawing amount of outstanding Financial Letters of Credit, to (b) EBITDA
for the Reference Period ending on such date.
PRIOR BANKS. As defined in the preamble hereto.
PRIOR CREDIT AGREEMENT. As defined in the preamble hereto.
RCRA. See Section 7.18(a).
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by any Borrower.
RECORD. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
REFERENCE PERIOD. As of any date of determination, the period of four
(4) consecutive fiscal quarters of the Borrowers ending on such date, or if such
date is not a fiscal quarter end date, the period of four (4) consecutive fiscal
quarters most recently ended (in each case treated as a single accounting
period).
REGISTER. See Section 15.3.
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REIMBURSEMENT OBLIGATION. The Borrowers' obligation to reimburse the
Administrative Agent and the Revolving Credit Lenders on account of any drawing
under any Letter of Credit as provided in Section 4.2.
RELEASE. As such term is defined in the CERCLA and the term "DISPOSAL"
(or "DISPOSED") shall have the meaning specified in RCRA and regulations
promulgated thereunder; PROVIDED that in the event either CERCLA or RCRA is
amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply as of the effective date of such amendment; and PROVIDED,
FURTHER, to the extent that the laws of a state wherein the property lies
establishes a meaning for "RELEASE" or "DISPOSAL" which is broader than
specified in either CERCLA or RCRA, such broader meaning shall apply.
REQUIRED LENDERS. As of any date, any combination of Lenders the sum of
whose aggregate Revolving Credit Commitments and outstanding principal amount of
the Term Loan constitute at least fifty-one percent (51%) of the sum of the
Total Revolving Credit Commitment and the total outstanding principal amount of
the Term Loans or, if the Total Revolving Credit Commitment has been terminated
or if the Revolving Credit Loan Maturity Date has occurred, any combination of
Lenders holding at least fifty-one percent (51%) of the total outstanding
principal amount of the Loans and the Maximum Drawing Amount of outstanding
Letters of Credit on such date.
REVOLVING CREDIT COMMITMENT. With respect to each Revolving Credit
Lender, the amount set forth on SCHEDULE 1 hereto as the amount of such
Revolving Credit Lender's commitment to make Revolving Credit Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrowers, as the same may be increased, reduced or reallocated
from time to time in accordance with this Credit Agreement; or if such
commitment is terminated pursuant to the provisions hereof, zero.
REVOLVING CREDIT COMMITMENT PERCENTAGE. With respect to each Revolving
Credit Lender, the percentage set forth on SCHEDULE 1 hereto as such Revolving
Credit Lender's percentage of the Total Revolving Credit Commitment.
REVOLVING CREDIT LENDERS. Each of the Lenders with a Revolving Credit
Commitment as set forth on SCHEDULE 1 hereto, and any other Person who becomes
an assignee of any rights and obligations of a Revolving Credit Lender pursuant
to Section 15.
REVOLVING CREDIT LOAN MATURITY DATE. August 31, 2004.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by the
Revolving Credit Lenders to the Borrowers pursuant to Section 2.
REVOLVING CREDIT NOTE RECORD. A Record with respect to a Revolving
Credit Note.
REVOLVING CREDIT NOTES. See Section 2.5.
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▇▇▇▇. See Section 7.18(a).
SECURITY AGREEMENT. The Fourth Amended and Restated Security Agreement,
dated as of the Closing Date and as the same may be amended and in effect from
time to time, by and among the Borrowers and the Administrative Agent and in
form and substance satisfactory to the Administrative Agent.
SECURITY DOCUMENTS. The Security Agreement, the Stock Pledge Agreement,
the Pledge Agreement, the Acknowledgment and Consent and all other instruments
and documents, including without limitation Uniform Commercial Code financing
statements, required to be executed or delivered pursuant to any Security
Document.
SERIES C CONVERTIBLE PREFERRED STOCK. The 55,000 shares of Series C
Convertible Preferred Stock of the Parent sold in June and July 1999 in a
private placement to four (4) existing stockholders, or affiliates thereof, of
the Parent for aggregate gross proceeds of $55,000,000.
SERIES D CONVERTIBLE PREFERRED STOCK. The 55,000 shares of Series D
Convertible Preferred Stock of the Parent sold on or prior to the Closing Date
in a private placement to four (4) existing stockholders of the Parent for
aggregate gross proceeds of $55,000,000.
SETTLEMENT. The making or receiving of payments, in immediately
available funds, by the Revolving Credit Lenders to or from the Administrative
Agent in accordance with Section 2.10 hereof to the extent necessary to cause
each such Revolving Credit Lender's actual share of the outstanding amount of
the Swing Line Loans to be equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the outstanding amount of such Swing Line Loans,
in any case when, prior to such action, the actual share is not so equal.
SETTLEMENT AMOUNT. See Section 2.10(b).
SETTLEMENT DATE. See Section 2.10(b).
SETTLING LENDER. See Section 2.10(b).
S&P. Standard & Poor's Ratings Group.
STOCK PLEDGE AGREEMENT. The Fourth Amended and Restated Stock Pledge
Agreement, dated as of the Closing Date and as the same may be amended and in
effect from time to time, by and among certain of the Borrowers and the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent.
SUBORDINATED DEBT. (a) Unsecured Indebtedness of the Borrowers with
respect to promissory notes issued by any Borrower to a seller in connection
with an acquisition permitted by Section 9.5.1 hereof that is expressly
subordinated and made junior to the payment and performance in full of the
Obligations, and evidenced as
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such by a written instrument provided to the Administrative Agent containing
subordination provisions in substantially the form of EXHIBIT I or other terms
reasonably acceptable to the Administrative Agent and the Required Lenders, and
(b) unsecured Indebtedness of the Parent (and subordinated unsecured guarantees
thereof by its Subsidiaries) issued or to be issued pursuant to a debt offering
or offerings, either pursuant to a public offering of debt securities or a
private placement of debt securities on terms no less favorable to the Lenders
than terms of "market" public senior subordinated unsecured debt and on terms
and conditions acceptable to the Administrative Agent and the Required Lenders.
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SWING LINE LOANS. See Section 2.10(a).
SWING LINE NOTE. See Section 2.10(a).
SYNDICATION AGENTS. As defined in the preamble hereto.
TERM LENDERS. Each of the Lenders holding a portion of the Term Loan as
set forth on Schedule 1 hereto, and any other Person who becomes an assignee of
any rights and obligations of a Term Lender pursuant to Section 15.
TERM LOAN. The term loan made or to be made by the Term Lenders to the
Borrowers on the Closing Date in the aggregate principal amount of $39,200,000
pursuant to Section 3.1, as the same may be increased, reduced or reallocated
from time to time in accordance with this Credit Agreement.
TERM LOAN AMOUNT. With respect to each Term Lender, the amount set forth
on SCHEDULE 1 hereto as the amount of such Term Lender's commitment to make a
portion of the Term Loan to the Borrowers.
TERM LOAN MATURITY DATE. August 31, 2006.
TERM LOAN PERCENTAGE. With respect to each Term Lender, the percentage
set forth on SCHEDULE 1 hereto as such Term Lender's percentage of the aggregate
Term Loan Amounts of all the Term Lenders.
TERM NOTES. See Section 3.3.
TERM NOTE RECORD. A Record with respect to a Term Note.
TOTAL FACILITY AMOUNT. The sum of the Total Revolving Credit Commitment
PLUS the Term Loan, which shall equal $261,700,000 on the Closing Date, as the
same may be increased, reduced or reallocated from time to time in accordance
with this Credit Agreement.
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TOTAL REVOLVING CREDIT COMMITMENT. The sum of the Revolving Credit
Commitments of the Revolving Credit Lenders, as in effect from time to time.
TYPE. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
the Borrowers do not reimburse the Administrative Agent and the Revolving Credit
Lenders on the date specified in, and in accordance with, Section 4.2.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "INCLUDE", "INCLUDES" and "INCLUDING" are not
limiting.
(g) All terms not specifically defined herein or by GAAP,
which terms are defined in the Uniform Commercial Code as in effect in
the Commonwealth of Massachusetts, have the meanings assigned to them
therein, with the term "INSTRUMENT" being that defined under Article 9
of the Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that
section of this Credit Agreement unless otherwise indicated.
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(i) The words "HEREIN", "HEREOF", "HEREUNDER" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "FROM" means "FROM AND INCLUDING," the words "TO" and "UNTIL" each
mean "TO BUT EXCLUDING," and the word "THROUGH" means "TO AND
INCLUDING."
(k) This Credit Agreement and the other Loan Documents may\
use several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are
the result of negotiation among, and have been reviewed by counsel to,
among others, the Administrative Agent and the Borrowers and are the
product of discussions and negotiations among all parties. Accordingly,
this Credit Agreement and the other Loan Documents are not intended to
be construed against the Administrative Agent or any of the Lenders
merely on account of the Administrative Agent's or any Lender's
involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Revolving Credit Lenders severally agrees
to lend to the Borrowers and the Borrowers may borrow, repay, and reborrow from
time to time from the Closing Date up to but not including the Revolving Credit
Loan Maturity Date upon notice by the Borrowers to the Administrative Agent
given in accordance with Section 2.7, such sums as are requested by the
Borrowers up to a maximum aggregate amount outstanding (after giving effect to
all amounts requested) at any one time equal to such Revolving Credit Lender's
Revolving Credit Commitment MINUS such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations, PROVIDED that the sum of the outstanding
amount of the Revolving Credit Loans (after giving effect to all amounts
requested) PLUS the outstanding amount of the Swing Line Loans (after giving
effect to all amounts requested) PLUS the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the Total Revolving
Credit Commitment at such time. The Revolving Credit Loans shall be made PRO
RATA in accordance with each Revolving Credit Lender's Revolving Credit
Commitment Percentage. Each request for a Revolving Credit Loan hereunder shall
constitute a representation and warranty by the Borrowers that the conditions
set forth in Section 11 and Section 12, in the case of the initial Revolving
Credit Loans to be made on the Closing Date, and Section 12, in the case of all
other Revolving Credit Loans, have been satisfied on the date of such request.
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2.2. INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT; REALLOCATION.
(a) INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT. Unless a Default or Event of
Default has occurred and is continuing, the Borrowers may request, on one or
more occasions at any time prior to the Revolving Credit Loan Maturity Date,
that the Total Revolving Credit Commitment in effect on the date of such request
be increased by an amount such that Total Facility Amount does not exceed
$275,000,000; PROVIDED that (i) any Revolving Credit Lender which is a party to
this Credit Agreement prior to such increase shall have the right to elect to
fund its PRO RATA share of the increase and any additional amounts allocated by
the Administrative Agent, thereby increasing its Revolving Credit Commitment
hereunder, but no Revolving Credit Lender shall be required to do so, (iii) in
the event that it becomes necessary to include one or more new Revolving Credit
Lenders to provide additional funding under this Section 2.2 in order to enable
such increase in the Total Revolving Credit Commitment to occur, such new
Revolving Credit Lenders shall be acceptable to the Administrative Agent, (iv)
such new Revolving Credit Lender(s) shall have executed and delivered to the
Administrative Agent an instrument of accession in form and substance
satisfactory to the Administrative Agent, (v) the Revolving Credit Lenders'
Revolving Credit Commitment Percentages shall be correspondingly adjusted, (vi)
each new Revolving Credit Lender shall make all (if any) such payments to the
other Revolving Credit Lenders as may be necessary to result in the sum of the
Revolving Credit Loans to be made by such new Revolving Credit Lender PLUS such
new Revolving Credit Lender's proportionate share of the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations being equal to such new Revolving
Credit Lender's Revolving Credit Commitment Percentage of the aggregate
principal amount of the sum of all Revolving Credit Loans outstanding to the
Borrowers as of such date PLUS the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations as of such date, and (vii) Revolving Credit Notes
shall be issued or amended and such other changes shall be made to the Loan
Documents, as shall be necessary to reflect any such increase in the Total
Revolving Credit Commitment. Any such increase in the Total Revolving Credit
Commitment shall require, among other things, the satisfaction of such
conditions precedent as the Administrative Agent may require, including, without
limitation, the Administrative Agent's receipt of evidence of applicable
corporate authorization and other corporate documentation from the Borrowers and
the legal opinion of counsel to the Borrowers, each in form and substance
satisfactory to the Administrative Agent and such Revolving Credit Lenders as
are participating in such increase.
(b) REALLOCATION. In the event that the Borrowers request that the
Total Facility Amount be increased, subject to the satisfaction of each of the
conditions precedent to such increase set forth in Sections 2.2(a) and 3.2(a),
the Administrative Agent may, in its sole discretion and at the request of the
Arranger, reallocate the Total Facility Amount by permanently decreasing the
Total Revolving Credit Commitment and increasing the Term Loan by an equal
amount; PROVIDED that no Revolving Credit Lender shall be required to reallocate
all or any portion of its Revolving Credit Commitment to the Term Loan without
its prior written consent; and PROVIDED, FURTHER, that after giving effect to
such reallocation, the Total Revolving Credit Commitment shall not be less than
$125,000,000; and PROVIDED, FURTHER, that
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the Total Facility Amount shall not exceed $275,000,000. The Borrowers and the
Revolving Credit Lenders further agree that the Administrative Agent may make
conforming changes to this Credit Agreement as the Administrative Agent may
determine are necessary to accomplish the reallocations authorized herein,
including without limitation revisions to SCHEDULE 1 hereto, PROVIDED that prior
to giving effect to such changes, the Administrative Agent shall have provided
written notice to the Revolving Credit Lenders and the Borrowers of such
changes. If requested by the Administrative Agent, or any affected Revolving
Credit Lender, the Borrowers hereby agree to issue new Notes, and the applicable
Revolving Credit Lenders agree to cancel and return any old Notes that are
replaced by such new Notes, as applicable in connection with any such
reallocations.
2.3. COMMITMENT FEE. The Borrowers jointly and severally agree to pay
to the Administrative Agent for the accounts of the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitment Percentages a
commitment fee (the "COMMITMENT FEE") equal to the Applicable Commitment Fee
Rate MULTIPLIED BY the amount of the average daily unused portion of the Total
Revolving Credit Commitment during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Maturity Date (or to the date of
termination in full of the Total Revolving Credit Commitment, if earlier). The
Commitment Fee shall be payable quarterly in arrears on the first Business Day
of each calendar quarter for the immediately preceding calendar quarter
commencing on October 1, 2001, with a final payment on the Revolving Credit
Maturity Date.
2.4. REDUCTION OF TOTAL REVOLVING CREDIT COMMITMENT. The Borrowers
shall have the right at any time and from time to time upon five (5) Business
Days prior written notice to the Administrative Agent to reduce by $1,000,000 or
an integral multiple of $500,000 in excess thereof or to terminate entirely the
Total Revolving Credit Commitment, whereupon the Revolving Credit Commitments of
the Revolving Credit Lenders shall be reduced PRO RATA in accordance with their
respective Revolving Credit Commitment Percentages of the amount specified in
such notice or, as the case may be, terminated. Promptly after receiving any
notice of the Borrowers delivered pursuant to this Section 2.4, the
Administrative Agent will notify the Revolving Credit Lenders of the substance
thereof. Upon the effective date of any such reduction or termination, the
Borrowers shall pay to the Administrative Agent for the respective accounts of
the Revolving Credit Lenders the full amount of any Commitment Fee then accrued
on the amount of the reduction. No reduction or termination of the Commitments
may be reinstated.
2.5. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrowers in substantially the
form of EXHIBIT B hereto (each a "REVOLVING CREDIT NOTE"), dated as of the
Closing Date (or such other date on which a Revolving Credit Lender may become a
party hereto in accordance with Section 15 hereof) and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Revolving Credit Lender in a principal amount equal to such Revolving
Credit Lender's Revolving Credit Commitment or, if less, the outstanding amount
of all Revolving Credit Loans made by such Revolving Credit Lender, plus
interest accrued thereon, as set forth below.
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The Borrowers irrevocably authorize each Revolving Credit Lender to make or
cause to be made, at or about the time of the Drawdown Date of any Revolving
Credit Loan or at the time of receipt of any payment of principal on such
Revolving Credit Lender's Revolving Credit Note, an appropriate notation on such
Revolving Credit Lender's Revolving Credit Note Record reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on such Revolving
Credit Lender's Revolving Credit Note Record shall be PRIMA FACIE evidence of
the principal amount thereof owing and unpaid to such Revolving Credit Lender,
but the failure to record, or any error in so recording, any such amount on such
Revolving Credit Lender's Revolving Credit Note Record shall not limit or
otherwise affect the Obligations of the Borrowers hereunder or under any
Revolving Credit Note to make payments of principal of or interest on any
Revolving Credit Note when due.
2.6. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
Section 5.10,
(a) Each Revolving Credit Loan which is a Base Rate Loan
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at the rate per annum equal to the Base Rate PLUS the Applicable
Margin with respect to Base Rate Loans as in effect from time to time.
(b) Each Revolving Credit Loan which is a Eurodollar Rate
Loan shall bear interest for the period commencing with the Drawdown
Date thereof and ending on the last day of the Interest Period with
respect thereto at the rate per annum equal to the Eurodollar Rate
determined for such Interest Period PLUS the Applicable Margin with
respect to Eurodollar Rate Loans as in effect from time to time.
The Borrowers jointly and severally promise to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect thereto.
2.7. REQUESTS FOR REVOLVING CREDIT LOANS.
The Borrowers shall give to the Administrative Agent written notice in
the form of EXHIBIT C hereto (or telephonic notice confirmed in a writing in the
form of EXHIBIT C hereto) of each Revolving Credit Loan requested hereunder (a
"LOAN REQUEST") not later than 11:00 a.m. (Boston time) (a) one (1) Business Day
prior to the proposed Drawdown Date of any Base Rate Loan and (b) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any Eurodollar
Rate Loan. Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit Loan
and (iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Revolving Credit
Lenders thereof. Each Loan Request shall be irrevocable and binding on the
Borrowers and shall obligate the Borrowers to accept the Revolving Credit Loan
requested from the Revolving Credit Lenders on
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the proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate
amount of $500,000 or an integral multiple of $100,000 in excess thereof.
2.8. CONVERSION OPTIONS.
2.8.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.
The Borrowers may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
PROVIDED that (a) with respect to any such conversion of a Eurodollar
Rate Loan to a Base Rate Loan, the Borrowers shall give the
Administrative Agent at least three (3) Business Days prior written
notice of such election; (b) with respect to any such conversion of a
Base Rate Loan to a Eurodollar Rate Loan, the Borrowers shall give the
Administrative Agent at least four (4) Eurodollar Business Days prior
written notice of such election; (c) with respect to any such conversion
of a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall
only be made on the last day of the Interest Period with respect thereto
and (d) no Revolving Credit Loan may be converted into a Eurodollar Rate
Loan when any Default or Event of Default has occurred and is
continuing. On the date on which such conversion is being made each
Revolving Credit Lender shall take such action as is necessary to
transfer its Revolving Credit Commitment Percentage to its Domestic
Lending Office or its Eurodollar Lending Office, as the case may be. All
or any part of outstanding Revolving Credit Loans of any Type may be
converted into a Revolving Credit Loan of another Type as provided
herein, PROVIDED that any partial conversion shall be in an aggregate
principal amount of $500,000 or an integral multiple of $100,000 in
excess thereof. Each Conversion Request relating to the conversion of a
Revolving Credit Loan to a Eurodollar Rate Loan shall be irrevocable by
the Borrowers.
2.8.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type may be continued as a Revolving Credit
Loan of the same Type upon the expiration of an Interest Period with
respect thereto by compliance by the Borrowers with the notice
provisions contained in Section 2.8.1; PROVIDED that no Eurodollar Rate
Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of Default
of which officers of the Administrative Agent active upon the Borrowers'
account have actual knowledge. In the event that the Borrowers fail to
provide any such notice with respect to the continuation of any
Eurodollar Rate Loan as such, then such Eurodollar Rate Loan shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto. The Administrative Agent shall notify
the Revolving Credit Lenders promptly when any such automatic conversion
contemplated by this Section 2.8 is scheduled to occur.
2.8.3. EURODOLLAR RATE LOANS. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
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such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $500,000 or an integral multiple of
$100,000 in excess thereof. No more than eight (8) Eurodollar Rate Loans
(whether Revolving Credit Loans or a portion of the Term Loan) having
different Interest Periods may be outstanding at any time.
2.9. FUNDS FOR REVOLVING CREDIT LOAN.
2.9.1. FUNDING PROCEDURES. Not later than 1:00 p.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loans, each
of the Revolving Credit Lenders will make available to the
Administrative Agent, at the Administrative Agent's Office, in
immediately available funds, the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the amount of the
requested Revolving Credit Loans. Upon receipt from each Revolving
Credit Lender of such amount, and upon receipt of the documents required
by Sections 11 and 12 and the satisfaction of the other conditions set
forth therein, to the extent applicable, the Administrative Agent will
make available to the Borrowers the aggregate amount of such Revolving
Credit Loans made available to the Administrative Agent by the Revolving
Credit Lenders. The failure or refusal of any Revolving Credit Lender to
make available to the Administrative Agent at the aforesaid time and
place on any Drawdown Date the amount of its Revolving Credit Commitment
Percentage of the requested Revolving Credit Loans shall not relieve any
other Revolving Credit Lender from its several obligation hereunder to
make available to the Administrative Agent the amount of such other
Revolving Credit Lender's Revolving Credit Commitment Percentage of any
requested Revolving Credit Loans.
2.9.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative
Agent may, unless notified to the contrary by any Revolving Credit
Lender prior to a Drawdown Date, assume that such Revolving Credit
Lender has made available to the Administrative Agent on such Drawdown
Date the amount of such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrowers a corresponding amount. If any Revolving Credit Lender makes
available to the Administrative Agent such amount on a date after such
Drawdown Date, such Revolving Credit Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day
included in such period, TIMES (b) the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of such Revolving Credit
Loans, TIMES (c) a fraction, the numerator of which is the number of
days that elapse from and including such Drawdown Date to the date on
which the amount of such Revolving
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Credit Lender's Revolving Credit Commitment Percentage of such Revolving
Credit Loans shall become immediately available to the Administrative
Agent, and the denominator of which is 360. A statement of the
Administrative Agent submitted to such Revolving Credit Lender with
respect to any amounts owing under this paragraph shall be PRIMA FACIE
evidence of the amount due and owing to the Administrative Agent by such
Revolving Credit Lender. If the amount of such Revolving Credit Lender's
Revolving Credit Commitment Percentage of such Revolving Credit Loans is
not made available to the Administrative Agent by such Revolving Credit
Lender within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrowers on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
2.10. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Revolving Credit Loans
and so long as the Administrative Agent has not received a written notice
pursuant to Section 8.5 of a Default or Event of Default, the Administrative
Agent may, upon receipt of a Loan Request requesting a Swing Line Loan no later
than 2:30 p.m. (Boston time) on the proposed date of funding, but shall not be
required to, fund Base Rate Loans made in accordance with the provisions of this
Credit Agreement ("SWING LINE LOANS") for periods not to exceed seven (7) days
in any one case, bearing interest as set forth in Section 2.6. The Swing Line
Loans shall be evidenced by a promissory note of the Borrowers in substantially
the form of EXHIBIT C hereto (the "SWING LINE NOTE") dated as of the Closing
Date, and shall each be in a minimum amount of $100,000 or greater; PROVIDED
that the outstanding amount of Swing Line Loans advanced by the Administrative
Agent hereunder shall not exceed $10,000,000 at any time. Each Revolving Credit
Lender shall remain severally and unconditionally liable to fund its PRO RATA
share (based upon each Revolving Credit Lender's Revolving Credit Commitment
Percentage) of such Swing Line Loans on each Settlement Date and, in the event
the Administrative Agent chooses not to fund all Swing Line Loans requested on
any date, to fund its Revolving Credit Commitment Percentage of the Base Rate
Loans requested, subject to satisfaction of the provisions hereof relating to
the making of Base Rate Loans. Prior to each Settlement, all payments or
repayments of the principal of, and interest on, Swing Line Loans shall be
credited to the account of the Administrative Agent.
(b) The Revolving Credit Lenders shall effect Settlements on (i) the
Business Day immediately following any day which the Administrative Agent gives
written notice to the Revolving Credit Lenders to effect a Settlement, (ii) the
Business Day immediately following the Administrative Agent's becoming aware of
the existence of any Default or Event of Default, (iii) the Revolving Credit
Loan Maturity Date, and (iv) in any event, the seventh day on which any Swing
Line Loan remains outstanding (each such date, a "SETTLEMENT DATE"). The
Administrative Agent shall give telephonic notice to the Revolving Credit
Lenders one (1) Business Day prior to each such Settlement Date of (A) the
respective outstanding amount of Revolving Credit Loans made by each Revolving
Credit Lender as at the close of
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business on the prior day, and (B) the amount that any Revolving Credit Lender
(each, a "SETTLING LENDER"), shall pay to effect a Settlement (a "SETTLEMENT
AMOUNT"). A statement of the Administrative Agent submitted to the Revolving
Credit Lenders with respect to any amounts owing hereunder shall be PRIMA FACIE
evidence of the amount due and owing. Each Settling Lender shall, not later than
1:00 p.m. (Boston time) on each Settlement Date, effect a wire transfer of
immediately available funds to the Administrative Agent at the Administrative
Agent's Office in the amount of such Revolving Credit Lender's Settlement
Amount. All funds advanced by any Revolving Credit Lender as a Settling Lender
pursuant to this Section 2.10 shall for all purposes be treated as a Base Rate
Loan to the Borrowers.
(c) The Administrative Agent may (unless notified to the contrary by
any Settling Lender by 12:00 noon (Boston time) one (1) Business Day prior to
the Settlement Date) assume that each Settling Lender has made available (or
will make available by the time specified in Section 2.10(b)) to the
Administrative Agent its Settlement Amount, and the Administrative Agent may
(but shall not be required to), in reliance upon such assumption, effect
Settlements. If the Settlement Amount of such Settling Lender is made available
to the Administrative Agent on a date after such Settlement Date, such Settling
Lender shall pay the Administrative Agent on demand an amount equal to the
product of (i) the average, computed for the period referred to in clause (iii)
below, of the weighted average annual interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during each day
included in such period TIMES (ii) such Settlement Amount TIMES (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Settlement Date to but not including the date on which such
Settlement Amount shall become immediately available to the Administrative
Agent, and the denominator of which is 365. Upon payment of such amount such
Settling Lender shall be deemed to have delivered its Settlement Amount on the
Settlement Date and shall become entitled to interest payable by the Borrowers
with respect to such Settling Lender's Settlement Amount as if such share were
delivered on the Settlement Date. If such Settlement Amount is not in fact made
available to the Administrative Agent by such Settling Lender within five (5)
Business Days of such Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrowers, with interest thereon at the
Base Rate.
(d) After any Settlement Date, any payment by the Borrowers of Swing
Line Loans hereunder shall be allocated PRO RATA among the Revolving Credit
Lenders in accordance with the Revolving Credit Lenders' respective Revolving
Credit Commitment Percentages.
(e) If, prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this Section 2.10, a Default or Event of Default has occurred
and is continuing, each Revolving Credit Lender will, on the date such Revolving
Credit Loan was to have been made, purchase an undivided participating interest
in the outstanding Swing Line Loans in an amount equal to its Revolving Credit
Commitment Percentage. Each Revolving Credit Lender will immediately transfer to
the Administrative Agent, in immediately available funds, the amount of its
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participation and upon receipt thereof the Administrative Agent will deliver to
such Revolving Credit Lender a participation certificate dated the date of
receipt of such funds and in such amount.
(f) Whenever, at any time after the Administrative Agent has
received from any Revolving Credit Lender such Revolving Credit Lender's
participating interest in the Swing Line Loans pursuant to clause (e) above, the
Administrative Agent receives any payment on account thereof, the Administrative
Agent will distribute to such Revolving Credit Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded) in like funds as received;
PROVIDED, HOWEVER, that in the event that such payment received by the
Administrative Agent is required to be returned, such Revolving Credit Lender
will return to the Administrative Agent any portion thereof previously
distributed by the Administrative Agent to it in like funds as such payment is
required to be returned by the Administrative Agent.
(g) Each Revolving Credit Lender's obligation to purchase
participating interests pursuant to clause (e) above shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may have against the Administrative Agent,
the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrowers or any other Person; (iv)
any breach of this Credit Agreement by the Borrowers or any other Revolving
Credit Lender or the Administrative Agent; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.11. REPAYMENT OF THE REVOLVING CREDIT LOANS.
2.11.1. MATURITY. The Borrowers jointly and severally promise to
pay on the Revolving Credit Loan Maturity Date, and there shall become
absolutely due and payable on the Revolving Credit Loan Maturity Date,
all of the Revolving Credit Loans outstanding on such date, together
with any and all accrued and unpaid interest thereon.
2.11.2. MANDATORY REPAYMENT OF THE REVOLVING CREDIT LOANS. If at
any time the sum of the outstanding amount of the Revolving Credit
Loans, the outstanding amount of the Swing Line Loans, the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Revolving Credit Commitment at such time, then the Borrowers shall
immediately pay the amount of such excess to the Administrative Agent
for the respective accounts of the Revolving Credit Lenders for
application: FIRST, to any Unpaid Reimbursement Obligations; SECOND, to
the Swing Line Loans, THIRD, to the Revolving Credit Loans; and FOURTH,
to provide to the Administrative Agent cash collateral for Reimbursement
Obligations as contemplated by Section 4.2(b) and (c). Each
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payment of any Unpaid Reimbursement Obligations or prepayment of
Revolving Credit Loans shall be allocated among the Revolving Credit
Lenders, in proportion, as nearly as practicable, to each Reimbursement
Obligation or (as the case may be) the respective unpaid principal
amount of each Revolving Credit Lender's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
2.11.3. OPTIONAL PREPAYMENT OF THE REVOLVING CREDIT LOANS. The
Borrowers shall have the right, at its election, to repay the
outstanding amount of the Revolving Credit Loans, as a whole or in part,
at any time without penalty or premium, PROVIDED that any full or
partial prepayment of the outstanding amount of any Eurodollar Rate
Loans pursuant to this Section 2.11.3 may be made only on the last day
of the Interest Period relating thereto. The Borrowers shall give the
Administrative Agent, no later than 11:00 a.m. (Boston time), at least
one (1) Business Days prior written notice of any proposed prepayment
pursuant to this Section 2.11.3 of Base Rate Loans, and three (3)
Eurodollar Business Days notice of any proposed prepayment pursuant to
this Section 2.11.3 of Eurodollar Rate Loans, in each case specifying
the proposed date of prepayment of Revolving Credit Loans and the
principal amount to be prepaid. Each such partial prepayment of the
Revolving Credit Loans (a) shall be in a minimum amount of $1,000,000 or
an integral multiple of $500,000 in excess thereof, (b) shall be
accompanied by the payment of accrued interest on the principal prepaid
to the date of prepayment and (c) shall be applied, in the absence of
instruction by the Borrowers, FIRST to the principal of Base Rate Loans
and THEN to the principal of Eurodollar Rate Loans. Each partial
prepayment shall be allocated among the Revolving Credit Lenders, in
proportion, as nearly as practicable, to the respective unpaid principal
amount of each Revolving Credit Lender's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior repayments
not exactly in proportion.
3. THE TERM LOAN.
3.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each Term Lender agrees to lend to the Borrowers on
the Closing Date the amount of its Term Loan Percentage of the principal amount
of $39,200,000.
3.2. INCREASE IN TERM LOAN; REALLOCATION. (a) INCREASE IN TERM LOAN.
Unless a Default or Event of Default has occurred and is continuing, the
Borrowers may request, on one or more occasions at any time prior to the Term
Loan Maturity Date, that the Total Facility Amount in effect on the date of such
request be increased by an amount such that Total Facility Amount does not
exceed $275,000,000; PROVIDED that (i) any Term Lender which is a party to this
Credit Agreement prior to such increase shall have the right to elect to fund
its PRO RATA share of the increase and any additional amounts allocated by the
Administrative Agent, thereby increasing its Term Loan Amount hereunder, but no
Term Lender
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shall be required to do so, (ii) in the event that it becomes necessary to
include one or more new Term Lenders to provide additional funding under this
Section 3.2 in order to enable such increase in the Term Loan to occur, such new
Term Lenders shall be acceptable to the Administrative Agent, (iii) such new
Term Lender(s) shall have executed and delivered to the Administrative Agent an
instrument of accession in form and substance satisfactory to the Administrative
Agent, (iv) the Term Lenders' Term Loan Percentages shall be correspondingly
adjusted, (v) each new Term Lender shall make all (if any) such payments to the
other Term Lenders as may be necessary to result in the Term Loan to be made by
such new Term Lender being equal to such new Term Lender's Term Loan Percentage
of the aggregate principal amount of the Term Loan outstanding to the Borrowers
as of such date, and (vi) Term Notes shall be issued or amended and such other
changes shall be made to the Loan Documents, as shall be necessary to reflect
any such increase in the Term Loan. Any such increase in the Term Loan shall
require, among other things, the satisfaction of such conditions precedent as
the Administrative Agent may require, including, without limitation, the
Administrative Agent's receipt of evidence of applicable corporate authorization
and other corporate documentation from the Borrowers and the legal opinion of
counsel to the Borrowers, each in form and substance satisfactory to the
Administrative Agent and such Term Lenders as are participating in such
increase.
(b) REALLOCATION. In the event that the Borrowers request that the
Total Facility Amount be increased, subject to the satisfaction of each of the
conditions precedent to such increase set forth in Sections 2.2(a) and 3.2(a),
the Administrative Agent may, in its sole discretion and at the request of the
Arranger, reallocate the Total Facility Amount by permanently decreasing the
Term Loan and increasing the Total Revolving Credit Commitment by an equal
amount; PROVIDED that no Term Lender shall be required to reallocate all or any
portion of its Term Loan Amount to the Revolving Credit Loans without its prior
written consent; and PROVIDED, FURTHER, that after giving effect to such
reallocation, the Total Revolving Credit Commitment shall not be less than
$125,000,000; and PROVIDED, FURTHER, that the Total Facility Amount shall not
exceed $275,000,000. The Borrowers and the Term Lenders further agree that the
Administrative Agent may make conforming changes to this Credit Agreement as the
Administrative Agent may determine are necessary to accomplish the reallocations
authorized herein, including without limitation revisions to SCHEDULE 1 hereto,
PROVIDED that prior to giving effect to such changes, the Administrative Agent
shall have provided written notice to the Term Lenders and the Borrowers of such
changes. If requested by the Administrative Agent, or any affected Term Lender,
the Borrowers hereby agree to issue new Notes, and the applicable Term Lenders
agree to cancel and return any old Notes that are replaced by such new Notes, as
applicable in connection with any such reallocations.
3.3. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of EXHIBIT D hereto
(each a "TERM NOTE"), dated as of the Closing Date (or such other date on which
a Term Lender may become a party hereto in accordance with Section 15 hereof)
and completed with appropriate insertions. One Term Note shall be payable to the
order of each Term Lender in a principal amount equal to such Term Lender's Term
Loan
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Percentage of the Term Loan and representing the obligation of the Borrowers to
pay to such Term Lender such principal amount or, if less, the outstanding
amount of such Term Lender's Term Loan Percentage of the Term Loan, plus
interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Term Lender to make or cause to be made a notation on such Term
Lender's Term Note Record reflecting the original principal amount of such Term
Lender's Term Loan Percentage of the Term Loan and, at or about the time of such
Term Lender's receipt of any principal payment on such Term Lender's Term Note,
an appropriate notation on such Term Lender's Term Note Record reflecting such
payment. The aggregate unpaid amount set forth on such Term Lender's Term Note
Record shall be PRIMA FACIE evidence of the principal amount thereof owing and
unpaid to such Term Lender, but the failure to record, or any error in so
recording, any such amount on such Term Lender's Term Note Record shall not
affect the Obligations of the Borrowers hereunder or under any Term Note to make
payments of principal of and interest on any Term Note when due.
3.4. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN. The
Borrowers jointly and severally promise to pay to the Administrative Agent for
the account of the Term Lenders, in accordance with their respective Term Loan
Percentages, the principal amount of the Term Loan in four (4) consecutive
payments, each such payment equal to one percent (1%) of the notional amount of
the Term Loan, and due and payable on each anniversary of the Term Loan,
commencing on the first anniversary of the Term Loan, with a final additional
payment on the Term Loan Maturity Date in an amount equal to the unpaid
principal balance of the Term Loan.
3.5. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrowers shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, PROVIDED
that (a) each partial prepayment shall be in the principal amount of $1,000,000
or an integral multiple of $500,000 in excess thereof, (b) no portion of the
Term Loan bearing interest at the Eurodollar Rate may be prepaid pursuant to
this Section 3.5 except on the last day of the Interest Period relating thereto
except in accordance with Section 5.9, and (c) each partial prepayment shall be
allocated among the Term Lenders, in proportion, as nearly as practicable, to
the respective outstanding amount of each Term Lender's Term Note, with
adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
3.6. MANDATORY PREPAYMENTS OF THE TERM LOAN.
3.6.1. PREPAYMENT OF SUBORDINATED DEBT. If at any time any of
the Borrowers are required to make any prepayments of any Subordinated
Debt as a result of any sale or other disposition of assets otherwise
permitted
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hereunder, the Borrowers shall, one (1) Business Day prior to making
such prepayment, prepay the Term Loan in an amount at least equal to
such prepayment.
3.6.2. PREPAYMENT OF TERM LOAN WITH PROCEEDS OF SUBORDINATED
DEBT. In the event any Borrower receives Net Cash Proceeds from any
issuance of Subordinated Debt at any time after the Closing Date, and on
the date of such issuance the Leverage Ratio is greater than 3.25:1, the
Borrowers shall make a prepayment of the Term Loan in an amount equal to
fifty percent (50%) of such Net Cash Proceeds. Notwithstanding the
foregoing, the Borrowers may issue up to $150,000,000 of Subordinated
Debt without having to make a prepayment of the Term Loan otherwise
required by this Section 3.6.2, PROVIDED that no Default or Event of
Default has occurred and is continuing or would exist as a result
thereof.
3.6.3. PAYMENT PROVISIONS. Each prepayment of the Term Loan
required by this Section 3.6 shall be allocated among the Term Lenders
in accordance with each such Term Lender's Term Loan Percentage. Any
prepayment of principal of the Term Loan shall include all interest
accrued to the date of prepayment and shall be applied against the
scheduled installments of principal due on the Term Loan in the inverse
order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed. Any Term Lender may decline to accept any payments due to
such Term Lender pursuant to this Section 3.6, in which case the
Borrowers may retain the amount of any prepayment so declined.
3.7. INTEREST ON TERM LOAN.
3.7.1. INTEREST RATES. Except as otherwise provided in Section
5.10, the Term Loan shall bear interest during each Interest Period
relating to all or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the
Term Loan bears interest during such Interest Period at the Base
Rate, the Term Loan or such portion shall bear interest during
such Interest Period at the rate per annum equal to the Base
Rate PLUS the Applicable Margin with respect to Base Rate Loans
as in effect from time to time.
(b) To the extent that all or any portion of the
Term Loan bears interest during such Interest Period at the
Eurodollar Rate, the Term Loan or such portion shall bear
interest during such Interest Period at the rate per annum equal
to the Eurodollar Rate determined for such Interest Period PLUS
the Applicable Margin with respect to Eurodollar Rate Loans as
in effect from time to time.
The Borrowers jointly and severally promise to pay interest on the Term
Loan or any portion thereof outstanding during each Interest Period in
arrears on each Interest Payment Date applicable to such Interest
Period.
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3.7.2. NOTIFICATION BY BORROWERS. The Borrowers shall notify
the Administrative Agent, such notice to be irrevocable, at least three
(3) Eurodollar Business Days prior to the Drawdown Date of the Term Loan
if all or any portion of the Term Loan is to bear interest at the
Eurodollar Rate. After the Term Loan has been made, the provisions of
Section 2.8 shall apply MUTATIS MUTANDIS with respect to all or any
portion of the Term Loan so that the Borrowers may have the same
interest rate options with respect to all or any portion of the Term
Loan as it would be entitled to with respect to the Revolving Credit
Loans.
3.7.3. AMOUNTS, ETC. Any portion of the Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall be
in the amount of $500,000 or an integral multiple of $100,000 in excess
thereof. No Interest Period relating to the Term Loan or any portion
thereof bearing interest at the Eurodollar Rate shall extend beyond the
date on which a regularly scheduled installment payment of the principal
of the Term Loan is to be made unless a portion of the Term Loan at
least equal to such installment payment has an Interest Period ending on
such date or is then bearing interest at the Base Rate.
4. LETTERS OF CREDIT.
4.1. LETTER OF CREDIT COMMITMENTS.
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by the
Borrowers of a letter of credit application on the Administrative
Agent's customary form (a "LETTER OF CREDIT APPLICATION"), the
Administrative Agent on behalf of the Revolving Credit Lenders and in
reliance upon the agreement of the Revolving Credit Lenders set forth in
Section 4.1.4 and upon the representations and warranties of the
Borrowers contained herein, agrees, in its individual capacity, to
issue, extend and renew for the account of the Borrowers one or more
standby letters of credit and, in the case of L/C Supported IRBs, direct
pay letters of credit ("IRB LETTERS OF CREDIT", and together with the
standby Letters of Credit, "LETTERS OF CREDIT"), in such form as may be
requested from time to time by the Borrowers and agreed to by the
Administrative Agent; PROVIDED, HOWEVER, that, after giving effect to
such request, (a) the sum of the aggregate Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not exceed $30,000,000 at any
one time, and (b) the sum of (i) the Maximum Drawing Amount on all
Letters of Credit, (ii) all Unpaid Reimbursement Obligations, (iii) the
amount of all Revolving Credit Loans outstanding and (iv) the amount of
all outstanding Swing Line Loans shall not exceed the Total Revolving
Credit Commitment at such time. The letters of credit listed on SCHEDULE
4.1.1 issued by the issuing bank under the Prior Credit Agreement shall
be Letters of Credit under this Credit Agreement. This Credit Agreement
shall be the "REIMBURSEMENT AGREEMENT" referred to in the L/C Supported
IRBs.
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4.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Administrative
Agent. In the event that any provision of any Letter of Credit
Application shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the
extent of any such inconsistency, govern.
4.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things, provide
for the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein. No standby Letter of Credit shall have an expiry date
later than the earlier of (i) one (1) year after the date of issuance of
such standby Letter of Credit (which may incorporate automatic renewals
for periods of up to one (1) year, PROVIDED that the Administrative
Agent may, upon thirty (30) days notice to the beneficiary, cancel such
standby Letter of Credit which has been renewed beyond its initial one
(1) year term), or (ii) thirty (30) days prior to the Revolving Credit
Maturity Date. No IRB Letter of Credit shall have an expiry date later
than thirty (30) days prior to the Revolving Credit Maturity Date. Each
Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 or any successor
version thereto adopted by the Administrative Agent in the ordinary
course of its business as a letter of credit issuer and in effect at the
time of issuance of such Letter of Credit (the "UNIFORM CUSTOMS") or, in
the case of a standby Letter of Credit, either the Uniform Customs or
the International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of
credit practices among banks adopted by the Administrative Agent in the
ordinary course of its business as a standby letter of credit issuer and
in effect at the time of issuance of such Letter of Credit.
4.1.4. REIMBURSEMENT OBLIGATIONS OF REVOLVING CREDIT LENDERS.
Each Revolving Credit Lender severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default or
Event of Default or any other condition precedent whatsoever, to the
extent of such Revolving Credit Lender's Revolving Credit Commitment
Percentage, to reimburse the Administrative Agent on demand for the
amount of each draft paid by the Administrative Agent under each Letter
of Credit to the extent that such amount is not reimbursed by the
Borrowers pursuant to Section 4.2 (such agreement for a Revolving Credit
Lender being called herein the "LETTER OF CREDIT PARTICIPATION" of such
Revolving Credit Lender).
4.1.5. PARTICIPATIONS OF REVOLVING CREDIT LENDERS. Each such
payment made by a Revolving Credit Lender shall be treated as the
purchase by such Revolving Credit Lender of a participating interest in
the Borrowers' Reimbursement Obligation under Section 4.2 in an amount
equal to such payment.
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Each Revolving Credit Lender shall share in accordance with its
participating interest in any interest which accrues pursuant to
Section 4.2.
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Revolving Credit Lenders to participate therein, the Borrowers hereby jointly
and severally agree to reimburse or pay to the Administrative Agent, for the
account of the Administrative Agent or (as the case may be) the Revolving Credit
Lenders, with respect to each Letter of Credit issued, extended or renewed by
the Administrative Agent hereunder,
(a) except as otherwise expressly provided in Section 4.2(b)
and (c), on each date that any draft presented under such Letter of
Credit is honored by the Administrative Agent, or the Administrative
Agent otherwise makes a payment with respect thereto, (i) the amount
paid by the Administrative Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by the Administrative Agent or any
Revolving Credit Lender in connection with any payment made by the
Administrative Agent or any Revolving Credit Lender under, or with
respect to, such Letter of Credit; PROVIDED, HOWEVER, that if the
Borrowers do not reimburse the Administrative Agent on the date the
Administrative Agent makes payment with respect to such Letter of
Credit, such an amount shall, provided that an Event of Default
specified in Section 13.1(h) or Section 13.1(i) has not occurred,
automatically become a Loan which is a Base Rate Loan,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held
by the Administrative Agent for the benefit of the Revolving Credit
Lenders and the Administrative Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with Section 13, an
amount equal to the then Maximum Drawing Amount on all Letters of
Credit, which amount shall be held by the Administrative Agent for the
benefit of the Revolving Credit Lenders and the Administrative Agent as
cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrowers under this Section 4.2 at any
time from the date such amounts become due and payable (whether as stated in
this Section 4.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent on demand
at the rate specified in Section 5.10 for overdue principal on the Revolving
Credit Loans.
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4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Administrative
Agent shall notify the Borrowers of the date and amount of the draft presented
or demand for payment and of the date and time when it expects to pay such draft
or honor such demand for payment. If the Borrowers fail to reimburse the
Administrative Agent as provided in Section 4.2 on or before the date that such
draft is paid or other payment is made by the Administrative Agent, the
Administrative Agent may at any time thereafter notify the Revolving Credit
Lenders of the amount of any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following the receipt of such
notice, each Revolving Credit Lender shall make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately available funds,
such Revolving Credit Lender's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the product of
(a) the average, computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, TIMES (b) the amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such Unpaid Reimbursement Obligation, TIMES (c)
a fraction, the numerator of which is the number of days that elapse from and
including the date the Administrative Agent paid the draft presented for honor
or otherwise made payment to the date on which such Revolving Credit Lender's
Revolving Credit Commitment Percentage of such Unpaid Reimbursement Obligation
shall become immediately available to the Administrative Agent, and the
denominator of which is 360. The responsibility of the Administrative Agent to
the Borrowers and the Revolving Credit Lenders shall be only to determine that
the documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
4.4. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under this Section
4 shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrowers may have or have had against the Administrative Agent, any
Revolving Credit Lender or any beneficiary of a Letter of Credit. The Borrowers
further agree with the Administrative Agent and the Revolving Credit Lenders
that the Administrative Agent and the Revolving Credit Lenders shall not be
responsible for, and the Borrowers' Reimbursement Obligations under Section 4.2
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrowers, the beneficiary of any Letter of Credit or any
financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrowers against the
beneficiary of any Letter of Credit or any such transferee. The Administrative
Agent and the Revolving Credit Lenders shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any
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Letter of Credit. The Borrowers agree that any action taken or omitted by the
Administrative Agent or any Revolving Credit Lender under or in connection with
each Letter of Credit and the related drafts and documents, if done in good
faith, shall be binding upon the Borrowers and shall not result in any liability
on the part of the Administrative Agent or any Revolving Credit Lender to the
Borrowers.
4.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section
4.4, the Administrative Agent shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document 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, independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement unless it shall first have received such
advice or concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the Revolving
Credit 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 Credit 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 the Revolving Credit Lenders and all
future holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
4.6. LETTER OF CREDIT FEE. The Borrowers jointly and severally agree to
pay a fee (in each case, a "LETTER OF CREDIT FEE") to the Administrative Agent
(a) in respect of each Financial Letter of Credit, in an amount equal to the
Applicable Margin per annum with respect to Eurodollar Rate Loans of the face
amount of such Financial Letter of Credit which shall be for the accounts of the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Commitment Percentages, PLUS an amount equal to one-eighth of one percent
(0.125%) per annum of the face amount of such Financial Letter of Credit which
shall be for the account of the Administrative Agent, as a fronting fee, and (b)
in respect of each Performance Letter of Credit, in an amount equal to fifty
percent (50%) of the Applicable Margin per annum with respect to Eurodollar Rate
Loans of the face amount of such Performance Letter of Credit which shall be for
the accounts of the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitment Percentages, PLUS an amount equal to one-eighth of
one percent (0.125%) per annum of the face amount of such Performance Letter of
Credit shall be for the account of the Administrative Agent, as a fronting fee.
Such Letter of Credit Fee shall be payable quarterly in arrears on each calendar
quarter end date following the date of issuance, extension, amendment or renewal
of such Letter of Credit and on the Final Maturity Date. In respect of each
Letter of Credit, the Borrowers shall also pay to the Administrative Agent for
the Administrative Agent's own account, at such other time or times as such
charges are customarily made by the Administrative Agent, the Administrative
Agent's customary issuance, amendment, negotiation or document examination and
other administrative fees as in effect from time to time.
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5. CERTAIN GENERAL PROVISIONS.
5.1. FEES. The Borrowers jointly and severally agree to pay all Fees in
the amounts and at the times and otherwise in accordance with the terms
specified herein or the Loan Documents, as the case may be.
5.2. FUNDS FOR PAYMENTS.
5.2.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of
principal, interest, Reimbursement Obligations, Fees and any other
amounts due hereunder or under any of the other Loan Documents shall be
made on the due date thereof to the Administrative Agent in Dollars, for
the respective accounts of the Lenders and the Administrative Agent, at
the Administrative Agent's Office or at such other place that the
Administrative Agent may from time to time designate, in each case at or
about 11:00 a.m. (Boston, Massachusetts, time or other local time at the
place of payment) and in immediately available funds. Any such amounts
received by 11:00 a.m. (Boston, Massachusetts, time or other local time
at the place of payment) shall be forwarded to the Lenders by the close
of business on the same day.
5.2.2. NO OFFSET, ETC. All payments by the Borrowers hereunder
and under any of the other Loan Documents shall be made without
recoupment, setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions
of any nature now or hereafter imposed or levied by any jurisdiction or
any political subdivision thereof or taxing or other authority therein
unless the Borrowers are compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrowers with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrowers will pay to the Administrative Agent, for
the account of the Lenders or (as the case may be) the Administrative
Agent, on the date on which such amount is due and payable hereunder or
under such other Loan Document, such additional amount in Dollars as
shall be necessary to enable the Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative
Agent would have received on such due date had no such obligation been
imposed upon the Borrowers. The Borrowers will deliver promptly to the
Administrative Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by
the Borrowers hereunder or under such other Loan Document.
5.2.3. NON-U.S. LENDERS. Each Lender and the Administrative
Agent that is not a U.S. Person as defined in Section 7701(a)(30) of the
Code for federal income tax purposes (a "NON-U.S. LENDER") hereby agrees
that, if and to the extent it is legally able to do so, it shall, prior
to the date of the first payment by the Borrowers hereunder to be made
to such Lender or the Administrative Agent or for such Lender's or the
Administrative Agent's account, deliver to the Borrowers and the
Administrative Agent, as
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applicable, such certificates, documents or other evidence, as and when
required by the Code or Treasury Regulations issued pursuant thereto,
including (a) in the case of a Non-U.S. Lender that is a "BANK" for
purposes of Section 881(c)(3)(A) of the Code, two (2) duly completed
copies of Internal Revenue Service Form W-8BEN or Form W-8ECI and any
other certificate or statement of exemption required by Treasury
Regulations, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Lender or the
Administrative Agent establishing that with respect to payments of
principal, interest or fees hereunder it is (i) not subject to United
States federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Lender or Administrative
Agent of a trade or business in the United States or (ii) totally exempt
or partially exempt from United States federal withholding tax under a
provision of an applicable tax treaty and (b) in the case of a Non-U.S.
Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the
Code, a certificate in form and substance reasonably satisfactory to the
Administrative Agent and the Borrowers and to the effect that (i) such
Non-U.S. Lender is not a "BANK" for purposes of Section 881(c)(3)(A) of
the Code, is not subject to regulatory or other legal requirements as a
bank in any jurisdiction, and has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made
to any governmental authority, any application made to a rating agency
or qualification for any exemption from any tax, securities law or other
legal requirements, (ii) is not a ten (10) percent shareholder for
purposes of Section 881(c)(3)(B) of the Code and (iii) is not a
controlled foreign corporation receiving interest from a related person
for purposes of Section 881(c)(3)(C) of the Code, together with a
properly completed Internal Revenue Service Form W-8 or W-9, as
applicable (or successor forms). Each Lender or the Administrative Agent
agrees that it shall, promptly upon a change of its lending office or
the selection of any additional lending office, to the extent the forms
previously delivered by it pursuant to this section are no longer
effective, and promptly upon the Borrowers' or the Administrative
Agent's reasonable request after the occurrence of any other event
(including the passage of time) requiring the delivery of a Form W-8BEN,
Form W-8ECI, Form W-8 or W-9 in addition to or in replacement of the
forms previously delivered, deliver to the Borrowers and the
Administrative Agent, as applicable, if and to the extent it is properly
entitled to do so, a properly completed and executed Form W-8BEN, Form
W-8ECI, Form W-8 or W-9, as applicable (or any successor forms thereto).
5.3. COMPUTATIONS. All computations of interest on Base Rate Loans
and of Fees shall be based on a 365/366-day year and paid for the actual number
of days elapsed. All computations of interest on Eurodollar Rate Loans shall be
based on a 360-day year and paid for the actual number of days elapsed. Except
as otherwise provided in the definition of the term "INTEREST PERIOD" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall
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accrue during such extension. The outstanding amount of the Loans as reflected
on the Revolving Credit Note Records and the Term Note Records from time to time
shall be considered correct and binding on the Borrowers unless within five (5)
Business Days after receipt of any notice by the Administrative Agent or any of
the Lenders of such outstanding amount, the Administrative Agent or such Lender
shall notify the Borrowers to the contrary.
5.4. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine or be notified by the Required Lenders that
(a) adequate and reasonable methods do not exist for ascertaining the Eurodollar
Rate that would otherwise determine the rate of interest to be applicable to any
Eurodollar Rate Loan during any Interest Period or (b) the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to the Lenders of making or maintaining their Eurodollar
Rate Loans during such period, the Administrative Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrowers and the Lenders) to the Borrowers and the Lenders. In such event
(i) any Loan Request or Conversion Request with respect to Eurodollar Rate Loans
shall be automatically withdrawn and shall be deemed a request for Base Rate
Loans, (ii) each Eurodollar Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan, and
(iii) the obligations of the Lenders to make Eurodollar Rate Loans shall be
suspended until the Administrative Agent or the Required Lenders determine that
the circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Required Lenders, shall so notify the Borrowers and the
Lenders.
5.5. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrowers and the other Lenders and thereupon (a) the
commitment of such Lender to make Eurodollar Rate Loans or convert Base Rate
Loans to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Lender's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if
any, shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrowers hereby jointly and severally
agree promptly to pay the Administrative Agent for the account of such Lender,
upon demand by such Lender, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion in
accordance with this Section 5.5, including any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder.
5.6. ADDITIONAL COSTS, ETC. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other
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regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Administrative Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Administrative Agent to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any
nature with respect to this Credit Agreement, the other Loan Documents,
any Letters of Credit, such Lender's Revolving Credit Commitment or the
Loans (other than taxes based upon or measured by the income or profits
of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable
to any Lender or the Administrative Agent under this Credit Agreement or
any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or Loans
by, or Letters of Credit issued by, or Revolving Credit Commitment of an
office of any Lender, or
(d) impose on any Lender or the Administrative Agent any
other conditions or requirements with respect to this Credit Agreement,
the other Loan Documents, any Letters of Credit, the Loans, such
Lender's Revolving Credit Commitment, or any class of loans, letters of
credit or commitments of which any of the Loans or such Lender's
Revolving Credit Commitment forms a part, and the result of any of the
foregoing is
(i) to increase the cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of the
Loans or such Lender's Revolving Credit Commitment or any Letter
of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender
or the Administrative Agent hereunder on account of such
Lender's Revolving Credit Commitment, any Letter of Credit or
any of the Loans, or
(iii) to require such Lender or the Administrative
Agent to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable hereunder, the
amount of which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the gross
amount of any sum
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receivable or deemed received by such Lender or the
Administrative Agent from the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Lender
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise, pay to such Lender or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Lender or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum.
5.7. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for Lenders or Lender
holding companies or any change in the interpretation or application thereof by
a Governmental Authority with appropriate jurisdiction, or (b) compliance by
such Lender or the Administrative Agent or any corporation controlling such
Lender or the Administrative Agent with any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) of any
such entity regarding capital adequacy, has the effect of reducing the return on
such Lender's or the Administrative Agent's commitment with respect to any Loans
to a level below that which such Lender or the Administrative Agent could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or the Administrative Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Administrative
Agent to be material, then such Lender or the Administrative Agent may notify
the Borrowers of such fact. To the extent that the amount of such reduction in
the return on capital is not reflected in the Base Rate, the Borrowers jointly
and severally agree to pay such Lender or (as the case may be) the
Administrative Agent for the amount of such reduction in the return on capital
as and when such reduction is determined upon presentation by such Lender or (as
the case may be) the Administrative Agent of a certificate in accordance with
Section 6.9 hereof. Each Lender shall allocate such cost increases among its
customers in good faith and on an equitable basis.
5.8. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Sections 5.6 or 5.7 and a brief explanation of such amounts
which are due, submitted by any Lender or the Administrative Agent to the
Borrowers, shall be conclusive, absent manifest error, that such amounts are due
and owing.
5.9. INDEMNITY. The Borrowers jointly and severally agree to indemnify
each Lender and to hold each Lender harmless from and against any loss, cost or
expense (including loss of anticipated profits) that such Lender may sustain or
incur as a consequence of (a) default by the Borrowers in payment of the
principal amount of or any interest on any Eurodollar Rate Loans as and when due
and payable, including any such loss or expense arising from interest or fees
payable by such Lender to banks of funds obtained by it in order to maintain its
Eurodollar Rate Loans, (b) default by the Borrowers in making a borrowing or
conversion after the
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Borrowers have given (or are deemed to have given) a Loan Request, notice (in
the case of all or any portion of the Term Loans pursuant to Section 3.7.2) or a
Conversion Request relating thereto in accordance with Section 2.7 or Section
2.8 or Section 3.7 or (c) the making of any payment of a Eurodollar Rate Loan or
the making of any conversion of any such Loan to a Base Rate Loan on a day that
is not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Lender to lenders of funds obtained
by it in order to maintain any such Loans.
5.10. DEFAULT INTEREST.
Overdue principal and (to the extent permitted by applicable law)
interest on the Loans and all other overdue amounts payable hereunder or under
any of the other Loan Documents shall bear interest compounded monthly and
payable on demand at a rate per annum equal to two percent (2%) above the rate
of interest then applicable thereto (or, if no rate of interest is then
applicable thereto, the Base Rate) until such amount shall be paid in full
(after as well as before judgment).
5.11. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers accepts joint and several liability for
the Obligations of all of the Borrowers hereunder and under the other Loan
Documents in consideration of the financial accommodations to be provided by the
Administrative Agent and the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in consideration
of the undertakings of each other Borrower to accept joint and several liability
for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers with respect to the payment
and performance of all of the Obligations (including, without limitation, any
Obligations arising under this Section 5.11), it being the intention of the
parties hereto that all of the Obligations shall be the joint and several
Obligations of each of the Borrowers without preferences or distinction among
them.
(c) If and to the extent that any of the Borrowers shall fail to
make any payment with respect to any of the Obligations as and when due or to
perform any of the Obligations in accordance with the terms thereof, then in
each such event the other Borrowers will make such payment with respect to, or
perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of
this Section 5.11 constitute full recourse Obligations of each of the Borrowers
enforceable against each such Borrower to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Credit Agreement or any other circumstance whatsoever.
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(e) Except as otherwise expressly provided in this Credit Agreement,
each of the Borrowers, to the fullest extent permitted by applicable law, hereby
waives notice of acceptance of its joint and several liability, notice of any
Loans made under this Credit Agreement, notice of any action at any time taken
or omitted by the Administrative Agent or the Lenders under or in respect of any
of the Obligations, and, generally, to the extent permitted by applicable law,
all demands, notices and other formalities of every kind in connection with this
Credit Agreement. Each of the Borrowers, to the fullest extent permitted by
applicable law, hereby waives all defenses which may be available by virtue of
any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshaling of assets of the Borrowers and any
other Person primarily or secondarily liable with respect to any of the
Obligations and all suretyship defenses generally. Each of the Borrowers, to the
fullest extent permitted by applicable law, hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of the
Obligations, the acceptance of any payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Lenders at any time or times in respect of any default by
any of the Borrowers in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other indulgences
whatsoever by the Lenders in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers. Without limiting the
generality of the foregoing, each of the Borrowers assents to any other action
or delay in acting or failure to act on the part of the Lenders with respect to
the failure by any of the Borrowers to comply with any of its respective
Obligations, including, without limitation, any failure strictly or diligently
to assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder, which might, but for the provisions of this
Section 5.11, afford grounds for terminating, discharging or relieving any of
the Borrowers, in whole or in part, from any of its Obligations under this
Section 5.11, it being the intention of each of the Borrowers that, so long as
any of the Obligations hereunder remain unsatisfied, the Obligations of such
Borrowers under this Section 5.11 shall not be discharged except by performance
and then only to the extent of such performance. The Obligations of each of the
Borrowers under this Section 5.11 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation,
re-construction or similar proceeding with respect to any of the Borrowers, the
Administrative Agent or the Lenders. The joint and several liability of the
Borrowers hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any of the Borrowers, the
Administrative Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess
of the aggregate amount of the benefit received by such Borrower in respect of
the extensions of credit under the Credit Agreement (the "BENEFIT AMOUNT"), then
such Borrower, after the payment in full, in cash, of all of the Obligations,
shall be entitled to recover from each other Borrower such excess payment, PRO
RATA, in accordance with the ratio of the Benefit Amount received by each such
other
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Borrower to the total Benefit Amount received by all Borrowers, and the right to
such recovery shall be deemed to be an asset and property of such Borrower so
funding; PROVIDED, that each of the Borrowers hereby agrees that it will not
enforce any of its rights of contribution or subrogation against the other
Borrowers with respect to any liability incurred by it hereunder or under any of
the other Loan Documents, any payments made by it to any of the Lenders or the
Administrative Agent with respect to any of the Obligations or any collateral
security therefor until such time as all of the Obligations have been
irrevocably paid in full in cash. Any claim which any Borrower may have against
any other Borrower with respect to any payments to the Lenders or the
Administrative Agent hereunder or under any other Loan Document are hereby
expressly made subordinate and junior in right of payment, without limitation as
to any increases in the Obligations arising hereunder or thereunder, to the
prior payment in full of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its
debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any other
Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any
amounts due with respect to the Indebtedness owing by any Borrower to any other
Borrower is hereby subordinated to the prior payment in full in cash of the
Obligations. Each Borrower hereby agrees that after the occurrence and during
the continuance of any Default or Event of Default, such Borrower will not
demand, ▇▇▇ for or otherwise attempt to collect any such Indebtedness of any
other Borrower owing to such Borrower until the Obligations shall have been paid
in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall
collect, enforce or receive any amounts in respect of such Indebtedness before
payment in full in cash of the Obligations, such amounts shall be collected,
enforced, received by such Borrower as trustee for the Administrative Agent and
be paid over to the Administrative Agent for the PRO RATA accounts of the
Lenders (in accordance with each such Lender's Revolving Credit Commitment
Percentage and Term Loan Percentage) to be applied to repay (or be held as
security for the repayment of) the Obligations.
(h) The provisions of this Section 5.11 are made for the benefit of
the Administrative Agent and the Lenders and their successors and assigns, and
may be enforced in good faith by them from time to time against any or all of
the Borrowers as often as the occasion therefor may arise and without
requirement on the part of the Administrative Agent or the Lenders first to
marshal any of their claims or to exercise any of their rights against any other
Borrower or to exhaust any remedies available to them against any other Borrower
or to resort to any other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions of this
Section 5.11 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any
part thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by the Administrative Agent or the Lenders
upon the insolvency, bankruptcy or reorganization of any of the
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Borrowers or is repaid in good faith settlement of a pending or threatened
avoidance claim, or otherwise, the provisions of this Section 5.11 will
forthwith be reinstated in effect, as though such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the
Lenders that the obligations of the Borrowers under this Credit Agreement shall
be valid and enforceable against the Borrower to the maximum extent permitted by
applicable law. Accordingly, if any provision of this Credit Agreement creating
any obligation of the Borrowers in favor of the Lenders shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Borrowers and the Lenders that any balance of the
obligation created by such provision and all other obligations of the Borrowers
to the Lenders created by other provisions of this Credit Agreement shall remain
valid and enforceable. Likewise, if by final order a court of competent
jurisdiction shall declare any sums which the Lenders may be otherwise entitled
to collect from the Borrowers under this Credit Agreement to be in excess of
those permitted under any law (including any federal or state fraudulent
conveyance or like statute or rule of law) applicable to the Borrower's
obligations under this Credit Agreement, it is the stated intention and
agreement of the Borrowers and the Lenders that all sums not in excess of those
permitted under such applicable law shall remain fully collectible by the
Lenders from the Borrowers.
6. COLLATERAL SECURITY.
The Obligations shall be secured by a perfected first priority security
interest (subject only to Permitted Liens entitled to priority under applicable
law) in all of the assets of the Borrowers (other than motor vehicles and real
estate), whether now owned or hereafter acquired, pursuant to the terms of the
Security Documents to which the Borrowers are a party.
7. REPRESENTATIONS AND WARRANTIES.
The Borrowers represent and warrant to the Lenders and the
Administrative Agent as follows:
7.1. CORPORATE AUTHORITY.
7.1.1. INCORPORATION; GOOD STANDING. Each of the Borrowers (a)
is a corporation (or similar business entity) duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation, (b) has all requisite corporate (or the
equivalent company) power to own its property and conduct its business
as now conducted and as presently contemplated, and (c) is in good
standing as a foreign corporation (or similar business entity) and is
duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a Material Adverse Effect.
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7.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which any
Borrower is or is to become a party and the transactions contemplated
hereby and thereby (a) are within the corporate (or the equivalent
company) authority of such Person, (b) have been duly authorized by all
necessary corporate (or the equivalent company) proceedings, (c) do not
and will not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which any Borrowers
is subject or any judgment, order, writ, injunction, license or permit
applicable to such Borrower and (d) do not conflict with any provision
of the Governing Documents of, or any agreement or other instrument
binding upon, such Borrower.
7.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which any Borrower is
or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any proceeding
therefor may be brought.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrowers of this Credit Agreement and the other Loan Documents to which any
Borrower is or is to become a party and the transactions contemplated hereby and
thereby do not require the approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
7.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 7.3
hereto, the Borrowers own all of the assets reflected in the consolidated
balance sheet of the Borrowers as at the Balance Sheet Date or acquired since
that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no Liens or other
rights of others, except Permitted Liens.
7.4. FINANCIAL STATEMENTS AND PROJECTIONS.
7.4.1. FISCAL YEAR. Each of the Borrowers has a fiscal year
which is the twelve (12) months ending on December 31 of each calendar
year.
7.4.2. FINANCIAL STATEMENTS. There has been furnished to each
of the Lenders a consolidated balance sheet of the Borrowers as at the
Balance Sheet Date, and a consolidated statement of income of the
Borrowers for the fiscal year then ended, certified by the Accountants.
Such balance sheet and statement of income have been prepared in
accordance with GAAP and fairly present the financial condition of the
Borrowers as at the close of business on the date thereof and the
results of operations for the fiscal year then ended.
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There are no contingent liabilities of any Borrower as of such date
involving material amounts, known to the officers of such Borrower,
which were not disclosed in such balance sheet and the notes related
thereto.
7.4.3. PROJECTIONS. The projections of the annual operating
budgets of the Borrowers on a consolidated basis, balance sheets and
cash flow statements for the 2001 to 2006 fiscal years, copies of which
have been delivered to each Lender, disclose all assumptions made with
respect to general economic, financial and market conditions used in
formulating such projections. To the knowledge of the Borrowers, no
facts exist that (individually or in the aggregate) would result in any
material change in any of such projections. The projections are based
upon reasonable estimates and assumptions, have been prepared on the
basis of the assumptions stated therein and reflect the reasonable
estimates of the Borrowers of the results of operations and other
information projected therein.
7.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date
there has been no event or occurrence which has had a Material Adverse Effect.
Since the Balance Sheet Date, no Borrower has made any Distribution.
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrowers
possesses all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
its business substantially as now conducted without known conflict with any
rights of others.
7.7. LITIGATION. Except as set forth in SCHEDULE 7.7 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrowers before any Governmental Authority, that, (a) if
adversely determined, might, either in any case or in the aggregate, (i) have a
Material Adverse Effect or (ii) materially impair the right of the Borrowers,
considered as a whole, to carry on business substantially as now conducted by
them, or result in any substantial liability not adequately covered by
insurance, or for which adequate reserves are not maintained on the consolidated
balance sheet of the Borrowers, or (b) which question the validity of this
Credit Agreement or any of the other Loan Documents, or any action taken or to
be taken pursuant hereto or thereto.
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrowers is
subject to any Governing Document or other legal restriction, or any judgment,
decree, order, law, statute, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. None of the Borrowers is a party to
any contract or agreement that has or is expected, in the judgment of the
Borrowers' officers, to have any Material Adverse Effect.
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the Borrowers
is in violation of any provision of its Governing Documents, or any agreement or
instrument to which it may be subject or by which it or any of its properties
may be bound or any decree, order, judgment, statute, license, rule or
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regulation, in any of the foregoing cases in a manner that could result in the
imposition of substantial penalties or have a Material Adverse Effect.
7.10. TAX STATUS. The Borrowers (a) have made or filed all federal,
state and foreign income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (b) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (c) have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and none of the officers of the Borrowers know of
any basis for any such claim.
7.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the Borrowers
is a "HOLDING COMPANY", or a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY", or an
"AFFILIATE" of a "HOLDING COMPANY", as such terms are defined in the Public
Utility Holding Company Act of 1935; nor is it an "INVESTMENT COMPANY", or an
"AFFILIATED COMPANY" or a "PRINCIPAL UNDERWRITER" of an "INVESTMENT COMPANY", as
such terms are defined in the Investment Company Act of 1940.
7.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on any assets or property
of the Borrowers or any rights relating thereto.
7.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Administrative Agent's security interest in the
Collateral. The Collateral and the Administrative Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or other
defenses. The Borrowers are the owners of the Collateral free from any Lien,
except for Permitted Liens.
7.15. CERTAIN TRANSACTIONS. Except as set forth on SCHEDULE 7.15 hereto
and for arm's length transactions pursuant to which any Borrower makes payments
in the ordinary course of business upon terms no less favorable than such
Borrower could obtain from third parties, none of the officers, directors, or
employees of such Borrower is presently a party to any transaction with such
Borrower (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of such Borrower,
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any corporation, partnership, trust or other entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
7.16. EMPLOYEE BENEFIT PLANS.
7.16.1. IN GENERAL. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance
in all material respects with the provisions of ERISA and all Applicable
Pension Legislation and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other persons handling
plan funds as required by Section 412 of ERISA. The Borrowers has
heretofore delivered to the Administrative Agent the most recently
completed annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under Section 103(d) of
ERISA, with respect to each Guaranteed Pension Plan.
7.16.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
Section 3(1) or Section 3(2)(B) of ERISA, provides benefit coverage
subsequent to termination of employment, except as required by Title I,
Part 6 of ERISA or the applicable state insurance laws. The Borrowers
may terminate each such Plan at any time (or at any time subsequent to
the expiration of any applicable bargaining agreement) in the discretion
of the Borrowers without liability to any Person other than for claims
arising prior to termination.
7.16.3. GUARANTEED PENSION PLANS. Each contribution required to
be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice or
lien provisions of Section 302(f) of ERISA, or otherwise, has been
timely made. No waiver of an accumulated funding deficiency or extension
of amortization periods has been received with respect to any Guaranteed
Pension Plan, and none of the Borrowers or any ERISA Affiliate is
obligated to or has posted security in connection with an amendment to a
Guaranteed Pension Plan pursuant to Section 307 of ERISA or Section
401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by
the Borrowers or any ERISA Affiliate with respect to any Guaranteed
Pension Plan and there has not been any ERISA Reportable Event (other
than an ERISA Reportable Event as to which the requirement of 30 days
notice has been waived), or any other event or condition which presents
a material risk of termination of any Guaranteed Pension Plan by the
PBGC. Based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed
for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of Section 4001 of ERISA did
not exceed the aggregate value of the assets of all such Guaranteed
Pension Plans,
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disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
7.16.4. MULTIEMPLOYER PLANS. None of the Borrowers or any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under Section 4201 of
ERISA or as a result of a sale of assets described in Section 4204 of
ERISA. None of the Borrowers or any ERISA Affiliate has been notified
that any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
Section 4041A of ERISA.
7.17. USE OF PROCEEDS.
7.17.1. GENERAL. The proceeds of the Loans shall be used solely
(a) to refinance the Indebtedness under the Prior Credit Agreement; (b)
to finance acquisitions permitted pursuant to Section 9.5.1; and (c) for
capital expenditures, working capital and general corporate purposes.
The Borrowers will use Letters of Credit solely for working capital and
general corporate purposes.
7.17.2. REGULATIONS U AND X. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for the
purpose of purchasing or carrying any "MARGIN SECURITY" or "MARGIN
STOCK" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.17.3. INELIGIBLE SECURITIES. No portion of the proceeds of any
Loans is to be used, and no portion of any Letter of Credit is to be
obtained, for the purpose of knowingly purchasing, or providing credit
support for the purchase of, during the underwriting or placement period
or within thirty (30) days thereafter, any Ineligible Securities
underwritten or privately placed by a Financial Affiliate.
7.18. ENVIRONMENTAL COMPLIANCE. The Borrowers have taken all necessary
steps to investigate the past and present condition and usage of the Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, has determined that, except as set forth on SCHEDULE 7.18 hereto:
(a) none of the Borrowers or any operator of the Real Estate
or any operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under
the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986 ("▇▇▇▇"), the Federal Clean Water Act, the Federal Clean Air Act,
the Toxic Substances
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Control Act, or any state, local or foreign law, statute, regulation,
ordinance, order or decree relating to health, safety or the environment
(hereinafter "ENVIRONMENTAL LAWS"), which violation would have a
material adverse effect on the environment or a Material Adverse Effect;
(b) none of the Borrowers has received notice from any third
party including, without limitation, any Governmental Authority, (i)
that any one of them has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any hazardous
waste, as defined by 42 U.S.C. Section 6903(5), any hazardous substances
as defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant
as defined by 42 U.S.C. Section 9601(33) and any toxic substances, oil
or hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("HAZARDOUS SUBSTANCES") which any one of them has
generated, transported or disposed of has been found at any site at
which a Governmental Authority has conducted or has ordered that the
Borrowers conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances;
(c) (i) no portion of the Real Estate has been used for the
handling, processing, storage or disposal of Hazardous Substances except
in accordance with applicable Environmental Laws; and no underground
tank or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; (ii) in the course of any
activities conducted by the Borrowers or operators of its properties, no
Hazardous Substances have been generated or are being used on the Real
Estate except in accordance with applicable Environmental Laws; (iii)
there have been no releases (i.e. any past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping) or threatened releases of
Hazardous Substances on, upon, into or from the properties of the
Borrowers, which releases would have a material adverse effect on the
value of any of the Real Estate or adjacent properties or the
environment; (iv) to the best of the Borrowers' knowledge, there have
been no releases on, upon, from or into any real property in the
vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a
material adverse effect on the value of, the Real Estate; and (v) in
addition, any Hazardous Substances that have been generated on any of
the Real Estate have been transported offsite only by carriers having an
identification number issued by the EPA (or the equivalent thereof in
any foreign jurisdiction), treated or disposed of only by treatment or
disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities have
been
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and are, to the best of the Borrowers' knowledge, operating in
compliance with such permits and applicable Environmental Laws; and
(d) none of the Borrowers or any of the other Real Estate is
subject to any applicable Environmental Law requiring the performance of
Hazardous Substances site assessments, or the removal or remediation of
Hazardous Substances, or the giving of notice to any Governmental
Authority or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition
to the effectiveness of any other transactions contemplated hereby.
7.19. SUBSIDIARIES, ETC. SCHEDULE 2 hereto sets forth a complete and
accurate list of the Subsidiaries of the Parent, including the name of each such
Subsidiary and its jurisdiction of incorporation, together with the number of
authorized and outstanding shares of each such Subsidiary. Each Subsidiary
listed on SCHEDULE 2 is wholly owned by the Parent or by a Subsidiary of the
Parent and is a Borrower hereunder, one hundred percent (100%) of the Capital
Stock of which has been pledged to the Administrative Agent on behalf of the
Lenders pursuant to the Stock Pledge Agreement or the Pledge Agreement. Each of
the Borrowers has good and marketable title to all of the shares it purports to
own of the Capital Stock of each of its Subsidiaries, free and clear in each
case of any Lien. All such Capital Stock have been duly issued and are fully
paid and non-assessable. None of the Borrowers is engaged in any joint venture
or partnership with any other Person.
7.20. DISCLOSURE. Neither this Credit Agreement nor any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to the Borrowers in the case of any document or
information not furnished by it or any of its Subsidiaries) necessary in order
to make the statements herein or therein not misleading. There is no fact known
to the Borrowers which has a Material Adverse Effect, or which is reasonably
likely in the future to have a Material Adverse Effect, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
7.21. CAPITALIZATION.
(a) CAPITAL STOCK. As of the date hereof, (i) the authorized Capital
Stock of the Parent consists of (A) 4,050,000 shares of common stock (par value
$0.01 per share), 3,600,000 shares of which is Class A voting common stock and
450,000 shares of which is Class B non-voting common stock, and (B) 252,100
shares of preferred stock; (ii) the issued and outstanding Capital Stock of the
Parent consists of (A) 142,000 shares of Class A voting common stock, (B)
112,981 shares of Class B non-voting common stock, (C) 32,000 shares of Series A
Convertible Preferred Stock, (D) 20,100 shares of Series B Convertible Preferred
Stock, (E) 55,000 shares of Series C Convertible Preferred Stock and (F) 55,000
shares of Series D Convertible Preferred Stock. All such outstanding shares have
been duly issued and are fully paid and non-assessable.
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(b) OPTIONS, ETC. Except as set forth on SCHEDULE 7.21, no Person
has outstanding any rights (either preemptive or otherwise) or options (except
for the options for common stock issued to employees in accordance with a bona
fide option plan approved by the Board of Directors of the Parent) to subscribe
for or purchase from the Borrowers, or any warrants or other agreements
providing for or requiring the issuance by the Borrowers of, any capital stock
or any securities convertible into or exchangeable for its capital stock.
8. AFFIRMATIVE COVENANTS.
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
8.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Fees and all other amounts provided
for in this Credit Agreement and the other Loan Documents to which the Borrowers
are party, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.
8.2. MAINTENANCE OF OFFICE. Each of the Borrowers will maintain its
chief executive office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, or at such other place in the United States of America as such Borrower
shall designate upon thirty (30) days' prior written notice to the
Administrative Agent, where notices, presentations and demands to or upon such
Borrower in respect of the Loan Documents to which such Borrower is a party may
be given or made.
8.3. RECORDS AND ACCOUNTS. Each of the Borrowers will (a) keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with GAAP, (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves, and (c) at all times engage the
Accountants and will not permit more than thirty (30) days to elapse between the
cessation of such Accountants as the independent certified public accountants of
the Borrowers and the appointment in such capacity of a successor firm as shall
be satisfactory to the Administrative Agent.
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrowers
will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than
one hundred twenty (120) days, or ninety (90) days if and when the
Parent becomes a publicly traded company, after the end of each fiscal
year of the Borrowers, the consolidated and
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consolidating balance sheets of the Borrowers, each as at the end of
such year, and the related consolidated and consolidating statements of
income, statements of cash flow, and statements of operations for such
year, each setting forth in comparative form the figures for the
previous fiscal year and all such consolidated and consolidating
statements to be in reasonable detail, prepared in accordance with GAAP,
and certified, without qualification and without an expression of
uncertainty as to the ability of the Borrowers to continue as going
concerns, by the Accountants, together with an annual budget and
projections prepared by the CFO for the next fiscal year in form and
substance satisfactory to the Administrative Agent. In addition,
simultaneously therewith, the Borrowers shall use their best efforts to
provide the Lenders with a written statement from such accountants to
the effect that they have read a copy of this Credit Agreement, and
that, in making the examination necessary to said certification, they
have obtained no knowledge of any Default or Event of Default, or, if
such Accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement any
such Default or Event of Default; PROVIDED that such Accountants shall
not be liable to the Lenders for failure to obtain knowledge of any
Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrowers, copies of the unaudited consolidated and consolidating
balance sheets and statements of operations of the Borrowers, each as at
the end of such quarter, and the related consolidated and consolidating
statements of cash flow for the portion of the Borrowers' fiscal year
then elapsed, all in reasonable detail and prepared in accordance with
GAAP, together with a certification by the CFO that the information
contained in such financial statements fairly presents the financial
position of the Borrowers on the date thereof (subject to year-end
adjustments);
(c) as soon as practicable, but in any event not later than
thirty (30) days after the end of each of the fiscal month of the
Borrowers, copies of the unaudited consolidated and consolidating
balance sheets and statements of operations of the Borrowers, each as at
the end of such month, subject to year-end adjustments, and the related
consolidated and consolidating statements of cash flow for the portion
of the Borrowers' fiscal year then elapsed, all in reasonable detail and
prepared in accordance with GAAP;
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the CFO in substantially the form of EXHIBIT E hereto (a
"COMPLIANCE CERTIFICATE") and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in
Sections 8, 9 and 10 and (if applicable) reconciliations to reflect
changes in GAAP since the Balance Sheet Date; PROVIDED that if the
Borrowers shall at the time of issuance of such Compliance Certificate
or at any other time obtain knowledge of any Default or Event of
Default, the Borrowers shall include in such Compliance Certificate or
otherwise deliver forthwith to each of the Lenders a certificate
specifying the nature and period
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of existence thereof and what action the Borrowers propose to take with
respect thereto;
(e) contemporaneously with or promptly following the
delivery thereof to the board of directors of the Parent, copies of the
financial statements, financial projections, and variance reports
concerning the Parent in substantially the same form in which such
information is supplied to the board of directors of the Parent;
(f) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the stockholders of any Borrower;
(g) from time to time upon request of the Administrative
Agent, projections of the Borrowers updating those projections delivered
to the Lenders and referred to in Section 7.4.3 or, if applicable,
updating any later such projections delivered in response to a request
pursuant to this Section 8.4(g); and
(h) from time to time such other financial data and
information (including accountants' management letters) as the
Administrative Agent or any Lender may reasonably request.
8.5. NOTICES.
8.5.1. DEFAULTS. The Borrowers will promptly notify the
Administrative Agent and each of the Lenders in writing of the
occurrence of any Default or Event of Default, together with a
reasonably detailed description thereof, and the actions the Borrowers
propose to take with respect thereto. If any Person shall give any
notice or take any other action in respect of a claimed default (whether
or not constituting an Event of Default) under this Credit Agreement or
any other note, evidence of Indebtedness, indenture or other obligation
to which or with respect to which any Borrower is a party or obligor in
excess of $1,000,000, whether as principal, guarantor, surety or
otherwise, the Borrowers shall forthwith give written notice thereof to
the Administrative Agent and each of the Lenders, describing the notice
or action and the nature of the claimed default.
8.5.2. ENVIRONMENTAL EVENTS. The Borrowers will promptly notify
the Administrative Agent and each of the Lenders, (i) upon any Borrower
obtaining knowledge of any violation of any Environmental Law regarding
the Real Estate or any Borrower's operations, which violation could have
a Material Adverse Effect; (ii) upon any Borrower obtaining knowledge of
any potential or known Release or threat of Release of any Hazardous
Substance at, from, or into the Real Estate which it reports in writing
or is reportable by it in writing to any governmental authority and
which is material in amount or nature or which could materially affect
the value of the Real Estate; (iii) upon any Borrower's receipt of any
notice of violation of any Environmental Laws or of any Release or
threatened Release of Hazardous Substances,
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including a notice or claim of liability or potential responsibility
from any third party (including without limitation any Governmental
Authority) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) any Borrower's,
or any Person's operation of the Real Estate, (B) contamination on, from
or into the Real Estate, or (C) investigation or remediation of offsite
locations at which any Borrower, or any of their predecessors is alleged
to have directly or indirectly Disposed of Hazardous Substances; or (iv)
upon any Borrower obtaining knowledge that any expense or loss has been
incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any Hazardous
Substances with respect to which any Borrower may be liable or for which
a lien may be imposed on the Real Estate.
8.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL. The Borrowers
will, immediately upon becoming aware thereof, notify the Administrative
Agent and each of the Lenders in writing of any setoff, claims
(including, with respect to the Real Estate, environmental claims),
withholdings or other defenses to which any of the Collateral, or the
Administrative Agent's rights with respect to the Collateral, are
subject.
8.5.4. NOTICE OF LITIGATION AND JUDGMENTS. Each of the
Borrowers will give notice to the Administrative Agent and each of the
Lenders in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrowers or to which any
Borrower is or becomes a party involving an uninsured claim against any
Borrower that could reasonably be expected to have a Material Adverse
Effect on the Borrowers and stating the nature and status of such
litigation or proceedings. Each of the Borrowers will give notice to the
Administrative Agent and each of the Lenders, in writing, in form and
detail satisfactory to the Administrative Agent, within ten (10) days of
any judgment not covered by insurance, final or otherwise, against the
Borrowers in an amount in excess of $1,000,000.
8.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES. Except where the
failure of any Borrower to remain so qualified could not reasonably be expected
to result in a Material Adverse Effect, the Borrowers will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence, rights and franchises and those of its Subsidiaries. It (i)
will cause all of its properties and those of its Subsidiaries used or useful in
the conduct of its business or the business of its Subsidiaries to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment, (ii) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrowers may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (iii)
will continue to engage primarily in the businesses now conducted by them and in
related businesses; PROVIDED that nothing in this Section 8.6 shall prevent the
Borrowers from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such
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discontinuance is, in the judgment of the Borrowers, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect.
8.7. INSURANCE.
Each of the Borrowers will maintain with financially sound and reputable
insurers insurance with respect to its properties and business against such
casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such amount, in such forms and
for such periods as may be reasonable and prudent and in accordance with the
terms of the Security Agreements, but in no event less than the amounts and
coverages set forth on SCHEDULE 8.7 hereto. In addition, the Borrowers will
furnish from time to time, upon the Administrative Agent's request, a summary of
the insurance coverage of each of the Borrowers, which summary shall be in form
and substance satisfactory to the Administrative Agent and, if requested by the
Administrative Agent, will furnish to the Administrative Agent copies of the
applicable policies.
8.8. TAXES. Each of the Borrowers will duly pay and discharge, or cause
to be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it and its Real Estate,
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a Lien or charge upon any of its property; PROVIDED
that any such tax, assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that such Borrower
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any Lien that may have attached as
security therefor.
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
8.9.1. GENERAL. The Borrowers shall permit the Lenders, through
the Administrative Agent or any of the Lenders' other designated
representatives, to visit and inspect any of the properties of the
Borrowers, to examine the books of account of the Borrowers (and to make
copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Borrowers with, and to be advised as to the
same by, its and their officers, all at such reasonable times and
intervals as the Administrative Agent or any Lender may reasonably
request.
8.9.2. COMMUNICATIONS WITH ACCOUNTANTS. The Borrowers authorize
the Administrative Agent and, if accompanied by the Administrative
Agent, the Lenders to communicate directly with the Accountants and
authorizes such Accountants to disclose to the Administrative Agent and
the Lenders any and all financial statements and other supporting
financial documents and schedules including copies of any
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management letter with respect to the business, financial condition and
other affairs of the Borrowers. At the request of the Administrative
Agent, the Borrowers shall deliver a letter addressed to such
Accountants instructing them to comply with the provisions of this
Section 8.9.2.
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each of
the Borrowers will comply with (a) the applicable laws and regulations wherever
its business is conducted, including all Environmental Laws, (b) the provisions
of its Governing Documents, (c) all agreements and instruments by which it or
any of its properties may be bound and (d) except where noncompliance would not
have a Material Adverse Effect, all applicable laws, orders, decrees, orders,
judgments, licenses and permits, including without limitation all environmental
permits. If any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or
required in order that any Borrower may fulfill any of its obligations hereunder
or any of the other Loan Documents to which such Borrower is a party, the
Borrower will immediately take or cause to be taken all reasonable steps within
the power of such Borrower to obtain such authorization, consent, approval,
permit or license and furnish the Administrative Agent and the Lenders with
evidence thereof.
8.11. EMPLOYEE BENEFIT PLANS. The Borrowers will (a) promptly upon
filing the same with the Department of Labor or Internal Revenue Service upon
request of the Administrative Agent, furnish to the Administrative Agent a copy
of the most recent actuarial statement required to be submitted under Section
103(d) of ERISA and Annual Report, Form 5500, with all required attachments, in
respect of each Guaranteed Pension Plan, (b) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under Sections 302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA and (c) promptly
furnish to the Administrative Agent a copy of all actuarial statements required
to be submitted under all Applicable Pension Legislation.
8.12. USE OF PROCEEDS. The Borrowers will use the proceeds of the Loans
and obtain Letters of Credit solely for the purposes set forth in Section 7.17.
8.13. INTEREST RATE PROTECTION. Not later than September 30, 2001, the
Borrowers (i) shall have entered into Interest Rate Agreements for a notional
amount equal to at least sixty percent (60%) of its floating rate Consolidated
Total Funded Debt as set forth on the applicable balance sheet of the Borrowers,
and on such terms and conditions, including, without limitation, with respect to
the interest rate applicable to such arrangements, as shall be satisfactory to
the Administrative Agent.
8.14. NEW BORROWERS. Any newly-created or acquired Subsidiary of the
Parent or of a Subsidiary of the Parent permitted under Section 9.5.1 shall
become a Borrower hereunder and become a party to the Security Documents by
(i) signing a joinder agreement in substantially the form attached hereto as
EXHIBIT F (the
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"JOINDER AGREEMENT"), (ii) signing allonges to the Notes and (iii) providing
such other documentation as the Administrative Agent may reasonably request,
including, without limitation, documentation with respect to the conditions
specified in Section 11 hereof, and one hundred percent (100%) of the Capital
Stock and assets (excluding motor vehicles and real estate) of such new
Subsidiaries shall be pledged to the Administrative Agent for the benefit of the
Lenders. In such event, the Administrative Agent is hereby authorized by the
parties to update SCHEDULE 2 to include such new Subsidiary.
8.15. CLOSURE AND POST CLOSURE LIABILITIES. The Borrowers shall at all
times adequately accrue, in accordance with GAAP and as required by applicable
Environmental Laws, all closure and post closure liabilities with respect to the
operations of the Borrowers.
8.16. FURTHER ASSURANCES. Each of the Borrowers will cooperate with the
Lenders and the Administrative Agent and execute such further instruments and
documents as the Lenders or the Administrative Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
8.17. ENVIRONMENTAL INDEMNIFICATION. THE BORROWERS COVENANT AND AGREE
THAT THEY WILL INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND THE LENDERS
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSE, DAMAGE, LOSS OR LIABILITY
INCURRED BY THE ADMINISTRATIVE AGENT OR THE LENDERS (INCLUDING ALL COSTS OF
LEGAL REPRESENTATION) RELATING TO (A) ANY RELEASE OR THREATENED RELEASE OF
HAZARDOUS SUBSTANCES ON THE REAL ESTATE; (B) ANY VIOLATION OF ANY ENVIRONMENTAL
LAWS WITH RESPECT TO CONDITIONS AT THE REAL ESTATE OR THE OPERATIONS CONDUCTED
THEREON; OR (C) THE INVESTIGATION OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH
THE BORROWERS OR THEIR PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY
DISPOSED OF HAZARDOUS SUBSTANCES. IT IS EXPRESSLY ACKNOWLEDGED BY THE BORROWERS
THAT THIS COVENANT OF INDEMNIFICATION SHALL INCLUDE CLAIMS, EXPENSE, DAMAGE,
LOSS OR LIABILITY INCURRED BY THE ADMINISTRATIVE AGENT OR THE LENDERS BASED UPON
THE ADMINISTRATIVE AGENT'S OR THE LENDERS' NEGLIGENCE, AND THIS COVENANT SHALL
SURVIVE ANY FORECLOSURE OR ANY MODIFICATION, RELEASE OR DISCHARGE OF THE
SECURITY DOCUMENTS OR THE PAYMENT OF THE OBLIGATIONS AND SHALL INURE TO THE
BENEFIT OF THE ADMINISTRATIVE AGENT AND THE LENDERS, THEIR SUCCESSORS AND
ASSIGNS.
8.18. POST-CLOSING REQUIREMENT. Not later than sixty (60) days after the
Closing Date, (a) the Borrowers will take all actions necessary to amend the
Limited Partnership Agreement of IESI TX Landfill (including, without
limitation, Section 5 thereof) to expressly permit the transactions contemplated
by the Security
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Documents and (b) IESI TX shall have delivered to the Administrative Agent a
certified copy of the Limited Partnership Agreement of IESI TX Landfill, as so
amended and then in effect.
9. CERTAIN NEGATIVE COVENANTS.
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligations to issue, extend or renew any Letters of Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers will not create, incur,
assume, guarantee or be or remain liable, contingently or otherwise (whether by
agreement to purchase any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services or otherwise), with
respect to any Indebtedness other than the following, PROVIDED that no Default
or Event of Default shall have occurred and be continuing at the time of the
incurrence of such Indebtedness or after giving effect thereto:
(a) Indebtedness to the Lenders and the Administrative Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(c) Subordinated Debt in an aggregate amount not to exceed
$150,000,000 at any time outstanding; PROVIDED that in the event that
any Subsidiary of the Parent guarantees any Subordinated Debt, the terms
of such guaranty shall provide for the release of such guaranty upon the
sale of stock or all or substantially all of the assets of such
Subsidiary (even if such sale was made in a foreclosure);
(d) Indebtedness incurred in connection with the acquisition
or lease financing of any real or personal property by such Borrower or
under any Capitalized Lease, PROVIDED that the aggregate principal
amount of such Indebtedness of the Borrowers shall not exceed $6,000,000
at any one time;
(e) Indebtedness in respect of Interest Rate Agreements
entered into pursuant to Section 8.14;
(f) Indebtedness existing on the date hereof and listed and
described on SCHEDULE 9.1 hereto, together with any renewals, extensions
or refinancings thereof on terms which (i) do not increase the principal
amount thereunder, and (ii) are not materially different than those in
effect as of the date hereof; PROVIDED that no such Indebtedness may be
prepaid without prior written consent of the Required Lenders;
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(g) incurrence by any Borrower of guaranty, suretyship or
indemnification obligations in connection with such Borrower's
performance of services for its respective customers in the ordinary
course of its business;
(h) Indebtedness with respect to landfill closure bonds of
the Borrowers in an aggregate amount not to exceed $50,000,000;
(i) Indebtedness with respect to the L/C Supported IRBs;
(j) Unpaid accrued dividends with respect to the Series C
Convertible Preferred Stock and the Series D Convertible Preferred Stock
to the extent treated as Indebtedness under GAAP; and
(k) Indebtedness of IESI MO Corporation with respect to
royalty payments secured by Liens permitted pursuant to Section
9.2.1(ix).
9.2. RESTRICTIONS ON LIENS.
9.2.1. PERMITTED LIENS. The Borrowers will not (a) create or
incur or suffer to be created or incurred or to exist any Lien upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom for the purpose of subjecting the same
to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; (d)
suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that if unpaid
might by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors; or (e) sell, assign, pledge or
otherwise transfer any "RECEIVABLES" as defined in clause (g) of the definition
of the term "INDEBTEDNESS," with or without recourse; PROVIDED that the
Borrowers may create or incur or suffer to be created or incurred or to exist:
(i) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue;
(ii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment insurance, old
age pensions or other social security obligations;
(iii) Liens on properties in respect of judgments or awards
that have been in force for less than the applicable period for taking
an appeal so long as execution is not levied thereunder or in respect of
which such Borrower shall at the time in good faith be prosecuting an
appeal or proceedings for review and in respect of which a stay of
execution shall have been obtained pending such appeal or review and in
respect of which the Borrowers have maintained adequate reserves;
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(iv) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens on properties, in existence less than
one hundred twenty (120) days from the date of creation thereof in
respect of obligations not overdue;
(v) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto, landlord's
or lessor's liens and other minor Liens, PROVIDED that none of such
Liens (A) interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrowers, and (B)
individually or in the aggregate have a Material Adverse Effect;
(vi) Liens existing on the date hereof and listed on SCHEDULE
9.2 hereto;
(vii) purchase money or lease security interests in or
purchase money mortgages on real or personal property acquired or leased
after the date hereof to secure purchase money or lease Indebtedness of
the type and amount permitted by Section 9.1(d), incurred in connection
with the acquisition or lease of such property, which security interests
or mortgages cover only the real or personal property so acquired or
leased;
(viii) Liens in favor of the Administrative Agent for the
benefit of the Lenders and the Administrative Agent under the Security
Documents; and
(ix) Liens on the real property contemplated for use as a
landfill in Washington County, Missouri to secure royalty payments to be
made by IESI MO Corporation to WaCo Landholding, Inc. in an amount not
to exceed $8,000,000.
9.2.2. RESTRICTIONS ON NEGATIVE PLEDGES AND UPSTREAM
LIMITATIONS. The Borrowers will not (a) enter into or permit to exist
any arrangement or agreement (excluding the Credit Agreement and the
other Loan Documents) which directly or indirectly prohibits any
Borrower from creating, assuming or incurring any Lien upon its
properties, revenues or assets whether now owned or hereafter acquired,
or (b) enter into any agreement, contract or arrangement (excluding the
Credit Agreement and the other Loan Documents) restricting the ability
of such Borrower to pay or make dividends or distributions in cash or
kind to any other Borrower, to make loans, advances or other payments of
whatsoever nature to such Borrower, or to make transfers or
distributions of all or any part of its assets to such Borrower; in each
case other than (i) restrictions on specific assets which assets are the
subject of purchase money security interests to the extent permitted
under Section 9.2.1, and (ii) customary anti-assignment provisions
contained in leases and licensing agreements entered into by such
Borrower in the ordinary course of its business.
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9.3. RESTRICTIONS ON INVESTMENTS. The Borrowers will not make or permit
to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date
of purchase by such Borrower;
(b) demand deposits, certificates of deposit, bank
acceptances and time deposits of United States banks having total assets
in excess of $100,000,000;
(c) securities commonly known as "COMMERCIAL PAPER" maturing
not more than nine (9) months from the date of issue and issued by a
corporation organized and existing under the laws of the United States
of America or any state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1" if rated by
▇▇▇▇▇'▇, and not less than "A 1" if rated by S&P ;
(d) Investments existing on the date hereof and listed on
SCHEDULE 9.3 hereto;
(e) Investments associated with insurance policies required
or allowed by state law to be posted as financial assurance for landfill
closure and post-closure liabilities;
(f) Investments by any Borrower in any other Borrower;
(g) Investments consisting of loans and advances to
employees for moving, entertainment, travel and other similar expenses
in the ordinary course of business not to exceed $250,000 in the
aggregate at any time outstanding;
(h) Investments by any Borrower in connection with an
acquisition permitted by Section 9.5.1; and
(i) other Investments not otherwise permitted hereunder not
to exceed $10,000,000 in the aggregate at any time outstanding.
9.4. RESTRICTED PAYMENTS; AMENDMENTS TO DOCUMENTS. The Borrowers will
not make any Distributions other than Distributions to any other Borrower. The
Borrowers shall not, without the prior written consent of the Administrative
Agent, effect or permit any change in or amendment to any document or instrument
pertaining to the terms of any Borrower's (other than the Parent's) Capital
Stock. The Parent shall not, without the prior written consent of the
Administrative Agent, effect or permit any change in or amendment to any
document or instrument pertaining to the terms of the Parent's Capital Stock in
any manner which would (a) create a mandatory obligation to make any
Distribution thereunder or (b) increase the amount of, or accelerate the timing
of, any obligation (other than stock issued in connection with acquisitions
permitted under Section 9.5.1 and stock issued under existing
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stock option plans) of the Parent to make any Distribution thereunder or with
respect to any of its Capital Stock, or (c) otherwise adversely affect the
rights of the Lenders and the Administrative Agent. The Parent will, with
respect to any amendment not requiring the prior written consent of the
Administrative Agent as set forth above, (i) provide written notice of any such
amendment to the Administrative Agent at least seven (7) days prior to the
proposed effective date of such amendment and (ii) deliver to the Administrative
Agent a certificate from the CFO, in form and substance satisfactory to the
Administrative Agent, certifying that such amendment shall not violate the
provisions of this Section 9.4.
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
9.5.1. MERGERS AND ACQUISITIONS. The Borrowers will not become
a party to any merger, amalgamation or consolidation, or agree to or
effect any asset acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of business consistent with
past practices) except as otherwise provided in this Section 9.5.1. Any
of the Borrowers may acquire the assets or stock of any other Borrower,
or may merge or consolidate with or into any other Borrower, PROVIDED
that, in the case of a merger or consolidation of the Parent and a
Borrower, the Parent shall be the surviving entity. Any of the Borrowers
may acquire all or substantially all of the assets or Capital Stock of
any Person, PROVIDED that:
(a) the Borrowers shall have delivered to each of the
Lenders a Compliance Certificate certifying they are in current
compliance with and, giving effect to the proposed acquisition
(including any borrowings made or to be made in connection therewith),
will continue to be in compliance with all of the covenants in Section
10 hereof on a PRO FORMA historical combined basis as if the transaction
occurred on the first day of the period of measurement;
(b) at the time of such acquisition, no Default or Event of
Default has occurred and is continuing, and such acquisition will not
otherwise create a Default or an Event of Default hereunder;
(c) the business to be acquired is predominantly in the same
lines of business as the Borrowers, or businesses reasonably related or
incidental thereto;
(d) the business to be acquired operates predominantly in
the continental United States;
(e) all of the assets to be acquired shall be owned by an
existing or newly created Subsidiary of the Parent which Subsidiary
shall be a Borrower, one hundred percent (100%) of the assets (excluding
motor vehicle equipment) and Capital Stock of which have been or,
simultaneously with such acquisition, will be pledged to the
Administrative Agent on behalf of the Lenders or, in the case of a stock
or other equity interest acquisition, the acquired company,
simultaneously with such acquisition, shall become a
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Borrower or shall be merged with and into a wholly owned Subsidiary that
is a Borrower and such newly acquired or created Subsidiary shall
otherwise comply with the provisions of Section 8.14 hereof;
(f) not later than seven (7) days prior to the proposed
acquisition date, a copy of the purchase agreement and financial
projections, together with audited (if available, or otherwise
unaudited) financial statements for any Subsidiary to be acquired or
created for the preceding two (2) fiscal years or such shorter period of
time as such Subsidiary has been in existence shall have been furnished
to the Administrative Agent, only in cases of Material Acquisitions or
upon request by the Administrative Agent;
(g) not later than seven (7) days prior to the proposed
acquisition date, (i) a summary of the Borrowers' results of their
standard due diligence review, and (ii) in the case of a landfill
acquisition, including a review by a Consulting Engineer and a copy of
the Consulting Engineer's report shall have been furnished to the
Administrative Agent, only in cases of Material Acquisitions or upon
request by the Administrative Agent;
(h) cash consideration to be paid by such Borrower in
connection with any such acquisition or series of related acquisitions
(including the aggregate amount of all Consolidated Total Funded Debt
assumed or incurred), shall not exceed $12,500,000 without the prior
written consent of the Administrative Agent and the Required Lenders;
(i) the board of directors and (if required by applicable
law) the shareholders, or the equivalent thereof, of the Person to be
acquired has approved such acquisition; and
(j) if such acquisition is made by a merger, a Borrower
shall be the surviving entity.
9.5.2. DISPOSITION OF ASSETS. The Borrowers will not become a
party to or agree to or effect any disposition of assets, other than (a)
the sale of inventory, the licensing of intellectual property and the
disposition of obsolete assets, in each case in the ordinary course of
business consistent with past practices, (b) a disposition of assets
from a Borrower to any other Borrower, (c) the sale or exchange of
routes which in the business judgement of the Borrowers does not have a
material adverse effect on the business or financial condition of the
Borrowers, (d) assets with a fair market value of less than $10,000,000
transferred in connection with an asset swap, which swap in the business
judgement of the Borrowers does not have a material adverse effect on
the business or financial condition of the Borrowers, and (e) assets
with a fair market value in excess of $10,000,000 transferred in
connection with an asset swap, which swap shall have received the prior
written approval of the Administrative Agent and the Required Lenders.
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9.6. SALE AND LEASEBACK. The Borrowers will not enter into any
arrangement, directly or indirectly, whereby a Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that such Borrower intends to use for substantially the
same purpose as the property being sold or transferred.
9.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrowers will not (a) use
any of the Real Estate or any portion thereof for the handling, processing,
storage or disposal of Hazardous Substances, (b) cause or permit to be located
on any of the Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any Hazardous Substances on
any of the Real Estate, (d) conduct any activity at any Real Estate or use any
Real Estate in any manner so as to cause a release (i.e. releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Hazardous Substances
on, upon or into the Real Estate or (e) otherwise conduct any activity at any
Real Estate or use any Real Estate in any manner that would violate any
Environmental Law or bring such Real Estate in violation of any Environmental
Law.
9.8. SUBORDINATED DEBT. The Borrowers will not amend, supplement or
otherwise modify the terms of the Subordinated Debt or prepay, redeem or
repurchase any of the Subordinated Debt.
9.9. EMPLOYEE BENEFIT PLANS. None of the Borrowers or any ERISA
Affiliate will:
(a) engage in any "PROHIBITED TRANSACTION" within the
meaning of Section 406 of ERISA or Section 4975 of the Code which could
result in a material liability for the Borrowers, taken as a whole; or
(b) permit any Guaranteed Pension Plan to incur an
"ACCUMULATED FUNDING DEFICIENCY", as such term is defined in Section 302
of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of any Borrower pursuant to Section 302(f) or Section 4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to Section 307 of ERISA or
Section 401(a)(29) of the Code;
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in excess of
benefit liabilities; or
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(f) permit or take any action which would contravene any
Applicable Pension Legislation.
9.10. BUSINESS ACTIVITIES. The Borrowers will not engage directly or
indirectly (whether through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by them on the Closing Date and in related
businesses.
9.11. FISCAL YEAR. The Borrowers will not change the date of the end of
their fiscal year from that set forth in Section 7.4.1.
9.12. TRANSACTIONS WITH AFFILIATES. Except as set forth on SCHEDULE 9.12
hereto, the Borrowers will not engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any such Affiliate or, to the
knowledge of the Borrowers, any corporation, partnership, trust or other entity
in which any such Affiliate has a substantial interest or is an officer,
director, trustee or partner, on terms more favorable to such Person than would
have been obtainable on an arm's-length basis in the ordinary course of
business.
9.13. NEW FRANCHISE AGREEMENTS. Following the Closing Date, the
Borrowers shall not enter into any Franchise Agreement with projected up-front
Capital Expenditures in excess of $3,000,000 without the consent of the
Administrative Agent and the Required Lenders.
10. FINANCIAL COVENANTS.
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
10.1. LEVERAGE RATIO. As at the end of any fiscal quarter referenced in
the table below, the Leverage Ratio for the Reference Period the ended shall not
exceed the ratio set forth opposite such fiscal quarter in such table:
FISCAL QUARTERS ENDING RATIO
------------------------------------------------
9/30/01 through 6/30/03 3.75:1
------------------------------------------------
9/30/03 and thereafter 3.50:1
------------------------------------------------
10.2. INTEREST COVERAGE. As at the end of any fiscal quarter referenced
in the table below, the ratio of (a) EBITDA for the Reference Period then ended
to (b)
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Consolidated Total Interest Expense for such Reference Period shall not be less
than the ratio set forth opposite such fiscal quarter in such table:
FISCAL QUARTERS ENDING RATIO
----------------------------------------------
9/30/01 through 9/30/02 2.50:1
----------------------------------------------
12/31/02 and thereafter 2.75:1
----------------------------------------------
10.3. CONSOLIDATED NET WORTH. The Borrowers will not permit their
Consolidated Net Worth at any time to be less than the sum of (a) $125,000,000
PLUS (b) the amount of the net proceeds of the Series D Convertible Preferred
Stock offering MINUS $5,000,000, PLUS (c) on a cumulative basis, one hundred
percent (100%) of proceeds of any new equity offering PLUS (d) fifty percent
(50%) of the positive Consolidated Net Income for each fiscal quarter following
the Closing Date.
10.4. CAPITAL EXPENDITURES. The Borrowers will not make annual Capital
Expenditures (a) for each of the fiscal years ending December 31, 2001 and
December 31, 2002, in excess of 1.6 times the actual depreciation expense for
each such fiscal year, and (b) for each fiscal year ending thereafter, in excess
of 1.4 times the actual depreciation expense for each such fiscal year.
11. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit
Loans and/or the Term Loan, as the case may be, and of the Administrative Agent
to issue any initial Letters of Credit shall be subject to the satisfaction of
the following conditions precedent:
11.1. LOAN DOCUMENTS.
Each of the Loan Documents shall have been duly executed and delivered
by the respective parties thereto, shall be in full force and effect and shall
be in form and substance satisfactory to each of the Lenders. Each Lender shall
have received a fully executed copy of each such document.
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS. Each of the Lenders shall
have received from each of the Borrowers a copy, certified by a duly authorized
officer of such Person to be true and complete on the Closing Date, of each of
its Governing Documents as in effect on such date of certification.
11.3. CORPORATE OR OTHER ACTION. All corporate (or other) action
necessary for the valid execution, delivery and performance by each of the
Borrowers of this Credit Agreement and the other Loan Documents to which such
Borrower is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Lenders shall have been provided to
each of the Lenders.
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11.4. INCUMBENCY CERTIFICATE. Each of the Lenders shall have received
from each of the Borrowers an incumbency certificate, dated as of the Closing
Date, signed by a duly authorized officer of such Borrower, and giving the name
and bearing a specimen signature of each individual who shall be authorized: (a)
to sign, in the name and on behalf of such Person, each of the Loan Documents to
which such Person is or is to become a party; (b) to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (c) to give notices
and to take other action on its behalf under the Loan Documents.
11.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
(except for Permitted Liens entitled to priority under applicable law) security
interest in and Lien upon the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Administrative Agent to protect and preserve such security interests shall have
been duly effected. The Administrative Agent shall have received evidence
thereof in form and substance satisfactory to the Administrative Agent.
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Administrative
Agent shall have received from each of the Borrowers a completed and fully
executed Perfection Certificate and the results of UCC searches (and the
equivalent thereof in all applicable foreign jurisdictions) with respect to the
Collateral, indicating no Liens other than Permitted Liens and otherwise in form
and substance satisfactory to the Administrative Agent.
11.7. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (a) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Agreements and (b)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer).
11.8. CONSOLIDATED TOTAL FUNDED DEBT TO PRO FORMA EBITDA. The
Administrative Agent shall have received a certificate from the CFO, in form and
substance satisfactory to the Administrative Agent, certifying that the ratio
Consolidated Total Funded Debt to EBITDA for the immediately preceding twelve
(12) month period shall not exceed 3.10:1.00.
11.9. RECEIPT OF THE SERIES D CONVERTIBLE PREFERRED STOCK PROCEEDS. The
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that the Borrowers shall have received new equity proceeds
from the issuance of the Series D Convertible Preferred Stock on or prior to the
Closing Date equal to at least $45,000,000 from Persons acceptable to the
Administrative Agent and on terms satisfactory to the Administrative Agent.
11.10. SUBORDINATED DEBT. The Administrative Agent shall have received a
certificate from the CFO, in form and substance satisfactory to the
Administrative
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Agent, certifying that (a) the Obligations are permitted Indebtedness under the
existing Subordinated Debt, and (b) no default under the existing Subordinated
Debt has occurred and is continuing or would result after giving effect to the
transactions contemplated by this Credit Agreement and the other Loan Documents.
11.11. OPINION OF COUNSEL. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the Lenders and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from:
(a) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrowers;
(b) Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Borrowers in
Pennsylvania;
(c) Craft, ▇▇▇▇▇▇▇ & Rhyme, LLC, special counsel to the Borrowers in
Missouri;
(d) ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, special counsel to the Borrowers in New
York and New Jersey;
(e) ▇▇▇▇▇▇▇ Law Firm, special counsel to the Borrowers in Arkansas;
and
(f) Gold, Weems, Bruser, Sues & ▇▇▇▇▇▇▇, special counsel to the
Borrowers in Louisiana.
11.12. ENVIRONMENTAL PERMIT CERTIFICATE. The Administrative Agent shall
have received an environmental permit certificate, in the form attached hereto
as EXHIBIT G, from the Parent satisfactory to the Administrative Agent
concerning principal operating permits at the Borrowers' principal operating
facilities.
11.13. PAYMENT OF FEES. The Borrowers shall have paid to the Lenders,
the Administrative Agent or the Arranger, as applicable, all fees required to be
paid on the Closing Date in connection with this Credit Agreement and the other
Loan Documents.
12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, including the Revolving
Credit Loan and the Term Loan, and of the Administrative Agent to issue, extend
or renew any Letter of Credit, in each case whether on or after the Closing
Date, shall also be subject to the satisfaction of the following conditions
precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of each of the Borrowers contained in this Credit
Agreement, the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement shall be true as of the
date as of which they were made and shall also be true at and as of the time of
the making of such Loan or the issuance, amendment, extension or renewal of such
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Letter of Credit, with the same effect as if made at and as of that time (except
to the extent of changes resulting from transactions contemplated or permitted
by this Credit Agreement and the other Loan Documents and changes occurring in
the ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and warranties
relate expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing.
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
12.3. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Administrative
Agent's Special Counsel, and the Lenders, the Administrative Agent and such
counsel shall have received all information and such counterpart originals or
certified or other copies of such documents as the Administrative Agent may
reasonably request.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "DEFAULTS") shall occur:
(a) the Borrowers shall fail to pay any principal of the
Loans or any Reimbursement Obligation when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the
Loans, any Fees, or other sums due hereunder or under any of the other
Loan Documents, within five (5) Business Days the same shall become due
and payable, whether at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with any of the
covenants contained in Sections 8.2, 8.3, 8.5, 8.6, 8.9, 8.14, 8.15, 9
or 10;
(d) the Borrowers shall fail to comply with any of the
covenants contained in Sections 8.4, 8.10 or 8.17 for ten (10) days;
(e) the Borrowers shall fail to perform any term, covenant
or agreement contained herein or in any of the other Loan Documents
(other than those specified elsewhere in this Section 14.1) for thirty
(30) days after written
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notice of such failure has been given to the Borrowers by the
Administrative Agent;
(f) any representation or warranty of any of the Borrowers
in this Credit Agreement or any of the other Loan Documents or in any
other document or instrument delivered pursuant to or in connection with
this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay at maturity, or
within any applicable period of grace, any obligation for borrowed money
or credit received or in respect of any Capitalized Leases in an
aggregate amount in excess of $1,000,000, or fail to observe or perform
any material term, covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed money or credit
received or in respect of any Capitalized Leases in an aggregate amount
in excess of $1,000,000 for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof, or any such holder or holders shall rescind or
shall have a right to rescind the purchase of any such obligations;
(h) any of the Borrowers shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of such Borrower or of any substantial part of
the assets of such Borrower or shall commence any case or other
proceeding relating to such Borrower under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against such Borrower and such Borrower shall indicate its
approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within forty-five
(45) days following the filing thereof;
(i) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating any of the
Borrowers bankrupt or insolvent, or approving a petition in any such
case or other proceeding, or a decree or order for relief is entered in
respect of such Borrower in an involuntary case under federal bankruptcy
laws as now or hereafter constituted, and such decree or order remains
in effect for more than sixty (60) days, whether or not consecutive;
(j) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty (30) days, whether or not
consecutive, any final judgment against any of the Borrowers that, with
other outstanding
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final judgments, undischarged, against such Borrower exceeds in the
aggregate $1,000,000, after taking into account any undisputed insurance
coverage;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Administrative Agent's security
interests, mortgages or liens in a substantial portion of the Collateral
shall cease to be perfected, or shall cease to have the priority
contemplated by the Security Documents, in each case otherwise than in
accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Lenders, or any action at law,
suit or in equity or other legal proceeding to cancel, revoke or rescind
any of the Loan Documents shall be commenced by or on behalf of any of
the Borrowers party thereto or any of their respective stockholders, or
any court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in accordance
with the terms thereof;
(l) any of the Borrowers or any ERISA Affiliate incurs any
liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV
of ERISA in an aggregate amount exceeding $1,000,000, or the Borrowers
or any ERISA Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring aggregate annual
payments exceeding $1,000,000, or any of the following occurs with
respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or
a failure to make a required installment or other payment (within the
meaning of Section 302(f)(1) of ERISA), PROVIDED that the Administrative
Agent determines in its reasonable discretion that such event (A) could
be expected to result in liability of any of the Borrowers to the PBGC
or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and (B) could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan or for the imposition of a lien in favor of such
Guaranteed Pension Plan; or (ii) the appointment by a United States
District Court of a trustee to administer such Guaranteed Pension Plan;
or (iii) the institution by the PBGC of proceedings to terminate such
Guaranteed Pension Plan; or
(m) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrowers; PROVIDED
that in the event of
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any Event of Default specified in Sections 13.1(h) and 13.1(i), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Administrative Agent or any Lender.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 13.1(h) or Section 134.1(i) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrowers and the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, the Administrative Agent may and,
upon the request of the Required Lenders, shall, by notice to the Borrowers,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Lenders shall be relieved of all further obligations to make
Loans and the Administrative Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrowers of any of the Obligations.
13.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to Section 13.1, each Lender, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may,
with the consent of the Required Lenders but not otherwise, proceed to protect
and enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Note or purchaser of any
Letter of Credit Participation is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following
the occurrence or during the continuance of any Event of Default, the
Administrative Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any the Security Documents, or otherwise with
respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) FIRST, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Administrative Agent in connection
with the collection of such monies by the Administrative Agent, for the
exercise, protection or
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enforcement by the Administrative Agent of all or any of the rights,
remedies, powers and privileges of the Administrative Agent under this
Credit Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the
Administrative Agent against any taxes or liens which by law shall have,
or may have, priority over the rights of the Administrative Agent to
such monies;
(b) SECOND, to all other Obligations; PROVIDED that (i)
distributions shall be made (A) PARI PASSU among Obligations with
respect to the Administrative Agent's fees and all other Obligations and
(B) with respect to each type of Obligation owing to the Lenders, such
as interest, principal, fees and expenses, among the Lenders PRO RATA in
accordance with the amount of all such Obligations outstanding, and (ii)
the Administrative Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
(c) THIRD, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lenders and the
Administrative Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to Section 9-608(a)(1)(C) or
9-615(a)(3) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) FOURTH, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
14. THE AGENTS.
14.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such
action on behalf of each of the Lenders and to exercise all such powers
as are hereunder and under any of the other Loan Documents and any
related documents delegated to the Administrative Agent, together with
such powers as are reasonably incident thereto, including the authority,
without the necessity of any notice to or further consent of the
Lenders, from time to time to take any action with respect to any
Collateral or the Security Documents which may be necessary to perfect,
maintain perfected or insure the priority of the security interest in
and liens upon the Collateral granted pursuant to the Security
Documents, PROVIDED that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the
Administrative Agent.
(b) The relationship between the Administrative Agent and
each of the Lenders is that of an independent contractor. The use of the
term "ADMINISTRATIVE AGENT" is for convenience only and is used to
describe, as a form of convention, the independent contractual
relationship between the Administrative Agent and each of the Lenders.
Nothing contained in this Credit Agreement nor the other Loan Documents
shall be construed to create
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an agency, trust or other fiduciary relationship between the
Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent
is nevertheless a "REPRESENTATIVE" of the Lenders, as that term is
defined in Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Lenders and the Administrative Agent with
respect to all collateral security and guaranties contemplated by the
Loan Documents. Such actions include the designation of the
Administrative Agent as "SECURED PARTY", "MORTGAGEE" or the like on all
financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any
of the Obligations, all for the benefit of the Lenders and the
Administrative Agent.
14.2. EMPLOYEES AND ADMINISTRATIVE AGENTS. The Administrative Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers.
14.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
14.4. NO REPRESENTATIONS.
14.4.1. GENERAL. The Administrative Agent shall not be
responsible for the execution or validity or enforceability of this
Credit Agreement, the Notes, the Letters of Credit, any of the other
Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or
for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrowers,
or be bound to ascertain or inquire as to the performance or
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observance of any of the terms, conditions, covenants or agreements
herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes or to inspect any of the
properties, books or records of the Borrowers. The Administrative Agent
shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrowers or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete.
The Administrative Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume
any liability to the Lenders, with respect to the credit worthiness or
financial conditions of the Borrowers. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or
any other Lender, and based upon such information and documents as it
has deemed appropriate, made its own credit analysis and decision to
enter into this Credit Agreement.
14.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in Section 11, each Lender that
has executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent or the
Arranger to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to such Lender, unless an officer of the
Administrative Agent or the Arranger active upon the Borrowers' account
shall have received notice from such Lender prior to the Closing Date
specifying such Lender's objection thereto and such objection shall not
have been withdrawn by notice to the Administrative Agent or the
Arranger to such effect on or prior to the Closing Date.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the
Borrowers to the Administrative Agent hereunder or under any of the
other Loan Documents for the account of any Lender shall constitute a
payment to such Lender. The Administrative Agent agrees promptly to
distribute to each Lender such Lender's PRO RATA share of payments
received by the Administrative Agent for the account of the Lenders
except as otherwise expressly provided herein or in any of the other
Loan Documents.
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the opinion
of the Administrative Agent the distribution of any amount received by
it in such capacity hereunder, under the Notes or under any of the other
Loan Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each Person to
whom any such distribution shall have been made shall either repay to
the Administrative Agent its proportionate
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share of the amount so adjudged to be repaid or shall pay over the same
in such manner and to such Persons as shall be determined by such court.
14.5.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (a) to make available to the
Administrative Agent its PRO RATA share of any Loan or to purchase any
Letter of Credit Participation or (b) to comply with the provisions of
Section 16.1 with respect to making dispositions and arrangements with
the other Lenders, where such Lender's share of any payment received,
whether by setoff or otherwise, is in excess of its PRO RATA share of
such payments due and payable to all of the Lenders, in each case as,
when and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "DELINQUENT LENDER") and shall
be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and
all payments due to it from the Borrowers, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or
otherwise, to the remaining nondelinquent Lenders for application to,
and reduction of, their respective PRO RATA shares of all outstanding
Loans and Unpaid Reimbursement Obligations. The Delinquent Lender hereby
authorizes the Administrative Agent to distribute such payments to the
nondelinquent Lenders in proportion to their respective PRO RATA shares
of all outstanding Loans and Unpaid Reimbursement Obligations. A
Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations
of the nondelinquent Lenders, the Lenders' respective PRO RATA shares of
all outstanding Loans and Unpaid Reimbursement Obligations have returned
to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
14.6. HOLDERS OF NOTES. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
14.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrowers as required by
Section 16.2), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or any of the other Loan Documents
or the transactions contemplated or evidenced hereby or thereby, or the
Administrative Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Administrative
Agent's willful misconduct or gross negligence.
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14.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Administrative Agent.
14.9. RESIGNATION. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrowers. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than "A" or its equivalent by S&P. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation, the provisions of this Credit Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
Section 14.10 it shall promptly notify the other Lenders of the existence of
such Default or Event of Default.
14.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (a)
so requested by the Required Lenders and (b) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against expenses
and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Lenders may direct the Administrative Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Administrative Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, PROVIDED that the Administrative
Agent need not comply with any such direction to the extent that the
Administrative Agent reasonably believes the
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Administrative Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
14.12. DUTIES OF DOCUMENTATION AGENT AND SYNDICATION AGENTS. None of the
Documentation Agent and the Syndication Agents shall have any right, power,
obligation, liability, responsibility or duty under this Credit Agreement or any
of the other Loan Documents other than those applicable to it in its capacity as
a Lender.
15. ASSIGNMENT AND PARTICIPATION.
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS.
Except as provided herein, each Lender may assign to one or more
commercial banks, other financial institutions or other Persons, all or a
portion of its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Revolving Credit Commitment Percentage, its
Term Loan Percentage, its Commitment and the portion of the Loans at the time
owing to it, the Notes held by it and its participating interest in the risk
relating to any Letters of Credit); PROVIDED that (a) each of the Administrative
Agent and, unless a Default or Event of Default shall have occurred and be
continuing, the Borrowers shall have given their prior written consent to such
assignment, which consent, in the case of the Borrowers, will not be
unreasonably withheld; except that (i) the consent of the Borrowers or the
Administrative Agent shall not be required in connection with any assignment by
a Lender to (A) an existing Lender or (B) a Lender Affiliate of such Lender, and
(ii) the Administrative Agent may, without the consent of the Borrowers, assign
such portion of its Revolving Credit Commitment and interests in the risk
relating to the Loans and outstanding Letters of Credit necessary to reach its
desired hold level, (b) each such assignment shall be of a constant, and not a
varying, percentage of the rights and obligations under this Credit Agreement
being assigned by such Lender, (c) each assignment (or, in the case of
assignments by a Lender to its Lender Affiliates, the aggregate holdings of such
Lender and its Lender Affiliates after giving effect to such assignments), shall
be in an amount that is a whole multiple of $2,500,000 (or such lesser amount as
shall constitute the aggregate holdings of such Lender) and (d) the parties to
such assignment shall execute and deliver to the Administrative Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of EXHIBIT G hereto (an "ASSIGNMENT AND
ACCEPTANCE"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (y) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (z) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Administrative Agent of the registration fee
referred to in Section 15.3, be released from its obligations under this Credit
Agreement.
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15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage,
(b) the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
the Borrowers or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by
the Borrowers or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under this
Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of
this Credit Agreement, together with copies of the most recent financial
statements referred to in Sections 7.4 and 8.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Lender, 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 decisions in taking or not
taking action under this Credit Agreement;
(e) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under this Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto;
(f) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Lender;
(g) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
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(h) such assignee acknowledges that it has made arrangements
with the assigning Lender satisfactory to such assignee with respect to
its PRO RATA share of Letter of Credit Fees in respect of outstanding
Letters of Credit; and
(i) such assignee acknowledges that it has complied with the
provisions of Section 5.2.3 to the extent applicable.
15.3. REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Revolving Credit Commitment Percentage of, and principal amount of the
Revolving Credit Loans owing to and Letter of Credit Participations purchased
by, the Lenders from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrowers and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Lender agrees to pay to the
Administrative Agent a registration fee in the sum of $3,500.
15.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
Borrowers and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrowers, at their own expense,
shall execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Assignee in an amount equal to
the amount assumed by such Assignee pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained some portion of its obligations
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the amount retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. Within five (5)
days of issuance of any new Notes pursuant to this Section 15.4, the Borrowers
shall deliver upon the request of the assignee Lender an opinion of counsel,
addressed to the Lenders and the Administrative Agent, relating to the due
authorization, execution and delivery of such new Notes and the legality,
validity and binding effect thereof, in form and substance satisfactory to the
Lenders. The surrendered Notes shall be cancelled and returned to the Borrowers.
15.5. PARTICIPATIONS. Each Lender may sell participations to one or more
Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (a) any such sale or participation shall not affect the rights and duties
of the selling Lender hereunder to the Borrowers and (b) the only rights granted
to the participant
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pursuant to such participation arrangements with respect to waivers, amendments
or modifications of the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Revolving
Credit Commitment or the portion of the Term Loan of such Lender as it relates
to such participant, reduce the amount of any Commitment Fee or Letter of Credit
Fees to which such participant is entitled or extend any regularly scheduled
payment date for principal or interest.
15.6. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
assignee Lender is an Affiliate of the Borrowers, then any such assignee Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to Section
13.1 or Section 13.2, and the determination of the Required Lenders shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to such assignee Lender's interest in any of the Loans or
Reimbursement Obligations. If any Lender sells a participating interest in any
of the Loans or Reimbursement Obligations to a participant, and such participant
is the Borrowers or an Affiliate of the Borrowers, then such transferor Lender
shall promptly notify the Administrative Agent of the sale of such
participation. A transferor Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 13.1 or Section 13.2 to the extent that
such participation is beneficially owned by the Borrowers or any Affiliate of
the Borrowers, and the determination of the Required Lenders shall for all
purposes of this Credit Agreement and the other Loan Documents be made without
regard to the interest of such transferor Lender in the Loans or Reimbursement
Obligations to the extent of such participation.
15.7. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender shall
retain its rights to be indemnified pursuant to Section 16.3 with respect to any
claims or actions arising prior to the date of such assignment. Anything
contained in this Section 15 to the contrary notwithstanding, any Lender may at
any time pledge or assign a security interest in all or any portion of its
interest and rights under this Credit Agreement (including all or any portion of
its Notes) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to (a) any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 and
(b) with respect to any Lender that is a fund that invests in bank loans, to any
lender or any trustee for, or any other representative of, holders of
obligations owed or securities issued by such fund as security for such
obligations or securities or any institutional custodian for such fund or for
such lender. Any foreclosure or similar action by any Person in respect of such
pledge or assignment shall be subject to the other provisions of this Section
15. No such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan Documents, provide
any voting rights hereunder to
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the pledgee thereof, or affect any rights or obligations of the Borrowers or
Administrative Agent hereunder.
15.8. ASSIGNMENT BY BORROWERS. No Borrower shall assign or transfer any
of its rights or obligations under any of the Loan Documents without the prior
written consent of each of the Lenders.
16. PROVISIONS OF GENERAL APPLICATIONS.
16.1. SETOFF. The Borrowers hereby grant to the Administrative Agent and
each of the Lenders a continuing lien, security interest and right of setoff as
security for all liabilities and obligations to the Administrative Agent and
each Lender, whether now existing or hereafter arising, upon and against all
deposits, credits, collateral and property, now or hereafter in the possession,
custody, safekeeping or control of the Administrative Agent or such Lender or
any Lender Affiliate and their successors and assigns or in transit to any of
them. Regardless of the adequacy of any collateral, if any of the Obligations
are due and payable and have not been paid or any Event of Default shall have
occurred, any deposits or other sums credited by or due from any of the Lenders
to such Borrower and any securities or other property of such Borrower in the
possession of such Lender may be applied to or set off by such Lender against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of such Borrower to such Lender. ANY AND ALL RIGHTS TO
REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. The Lenders agree
among themselves that, if a Lender shall obtain payment on any Loan outstanding
under this Credit Agreement through the exercise of a right of offset, banker's
lien or counterclaim, or from any other source (other than by way of a PRO RATA
payment under this Agreement or a required payment under a Note), it shall
promptly make such adjustments with the other Lenders as shall be equitable to
the end that all the Lenders shall share the benefits of such payments PRO RATA
in accordance with the aggregate unpaid amount of the Notes held by each Lender
immediately prior to the payment obtained by such Lender as aforesaid. The
Lenders further agree among themselves that if any payment to a Lender obtained
by such Lender through the exercise of a right of offset, banker's lien or
counterclaim, or from any other source (other than by way of a PRO RATA payment)
as aforesaid shall be rescinded or must otherwise be restored, the Lenders who
shall have shared the benefit of such payment shall return their share of that
benefit to the Lender whose payment shall have been rescinded or otherwise
restored.
16.2. EXPENSES. The Borrowers jointly and severally agree to pay (a) the
reasonable costs of producing and reproducing this Credit Agreement, the other
Loan Documents and the other agreements and instruments mentioned herein, (b)
any taxes (including any interest and penalties in respect thereto) payable by
the
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Administrative Agent or any of the Lenders (other than taxes based upon the
Administrative Agent's or any Lender's net income) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to indemnify the Administrative Agent and each Lender with respect
thereto), (c) the reasonable fees, expenses and disbursements of the
Administrative Agent's Special Counsel or any local counsel to the
Administrative Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations or pursuant
to any terms of such Loan Document for providing for such cancellation, (d) the
fees, expenses and disbursements of the Administrative Agent or any of its
affiliates incurred by the Administrative Agent or such affiliate in connection
with the preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all title insurance
premiums and surveyor, engineering, appraisal and examination charges, (e) any
fees, costs, expenses and bank charges, including bank charges for returned
checks, incurred by the Administrative Agent in establishing, maintaining or
handling agency accounts, lock box accounts and other accounts for the
collection of any of the Collateral, (f) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender or the Administrative Agent, and
reasonable consulting, accounting, appraisal, investment bankruptcy and similar
professional fees and charges) incurred by any Lender or the Administrative
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrowers or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to any Lender's or the Administrative Agent's relationship with the Borrowers
and (g) all reasonable fees, expenses and disbursements of any Lender or the
Administrative Agent incurred in connection with UCC searches, UCC filings,
intellectual property searches or intellectual property filings. The covenants
contained in this Section 16.2 shall survive payment or satisfaction in full of
all of the Obligations.
16.3. INDEMNIFICATION. The Borrowers jointly and severally agree to
indemnify and hold harmless the Administrative Agent, its affiliates and the
Lenders from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (a) any actual or proposed use by the
Borrowers of the proceeds of any of the Loans or Letters of Credit, (b) the
reversal or withdrawal of any provisional credits granted by the Administrative
Agent upon the transfer of funds from lock box, bank agency, concentration
accounts or otherwise under any cash management arrangements with the Borrowers
or in connection with the provisional honoring of funds transfers, checks or
other items, (c) any actual or alleged infringement of any patent, copyright,
trademark, service ▇▇▇▇ or similar right of the Borrowers comprised in the
Collateral, (d) the Borrowers entering into or
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performing this Credit Agreement or any of the other Loan Documents or (e) with
respect to the Borrowers and their respective properties and assets, the
violation of any Environmental Law, the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Lenders and the Administrative
Agent and its affiliates shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrowers agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of the Borrower under this Section 16.3 are unenforceable for any
reason, the Borrowers hereby agree to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this Section 16.3 shall survive
payment or satisfaction in full of all other Obligations.
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.4.1. CONFIDENTIALITY. Each of the Lenders and the
Administrative Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrowers pursuant to this
Credit Agreement that is identified by such Person as being confidential
at the time the same is delivered to the Lenders or the Administrative
Agent, provided that nothing herein shall limit the disclosure of any
such information (a) after such information shall have become public
other than through a violation of this Section 16.4, or becomes
available to any of the Lenders or the Administrative Agent on a
nonconfidential basis from a source other than the Borrowers, (b) to the
extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Lenders or the Administrative Agent, (d) to bank
examiners or any other regulatory authority having jurisdiction over any
Lender or the Administrative Agent, or to auditors or accountants, (e)
to the Administrative Agent, any Lender or any Financial Affiliate, (f)
in connection with any litigation to which any one or more of the
Lenders, the Administrative Agent or any Financial Affiliate is a party,
or in connection with the enforcement of rights or remedies hereunder or
under any other Loan Document, (g) to a Lender Affiliate or a Subsidiary
or affiliate of the Administrative Agent, (h) to any actual or
prospective assignee or participant or any actual or prospective
counterparty (or its advisors) to any swap or derivative transactions
referenced to credit or other risks or events arising under this Credit
Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees to be bound
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by the provisions of Section 16.4 or (i) with the consent of the
Borrowers. Moreover, each of the Administrative Agent, the Lenders and
any Financial Affiliate is hereby expressly permitted by the Borrowers
to refer to any of the Borrowers in connection with any advertising,
promotion or marketing undertaken by the Administrative Agent, such
Lender or such Financial Affiliate and, for such purpose, the
Administrative Agent, such Lender or such Financial Affiliate may
utilize any trade name, trademark, logo or other distinctive symbol
associated with the Borrowers or any of their businesses.
16.4.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the
Administrative Agent shall, prior to disclosure thereof, notify the
Borrowers of any request for disclosure of any such non-public
information by any governmental agency or representative thereof (other
than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) or pursuant to
legal process.
16.4.3. OTHER. In no event shall any Lender or the
Administrative Agent be obligated or required to return any materials
furnished to it or any Financial Affiliate by the Borrowers. The
obligations of each Lender under this Section 16.4 shall supersede and
replace the obligations of such Lender under any confidentiality letter
in respect of this financing signed and delivered by such Lender to the
Borrowers prior to the date hereof and shall be binding upon any
assignee of, or purchaser of any participation in, any interest in any
of the Loans or Reimbursement Obligations from any Lender.
16.5. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrowers pursuant hereto shall be deemed to have been relied upon by the
Lenders and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans and the issuance, extension or renewal of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any Letter of Credit or any amount due under this Credit
Agreement or the Notes or any of the other Loan Documents remains outstanding or
any Lender has any obligation to make any Loans or the Administrative Agent has
any obligation to issue, extend or renew any Letter of Credit, and for such
further time as may be otherwise expressly specified in this Credit Agreement.
All statements contained in any certificate or other paper delivered to any
Lender or the Administrative Agent at any time by or on behalf of the Borrowers
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by such Borrower hereunder.
16.6. NOTICES. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States
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registered or certified first class mail, postage prepaid, sent by overnight
courier, or sent by telegraph, telecopy, facsimile or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Borrowers, at IESI Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Senior Vice President and Chief Financial Officer, fax number: (817)
314-5238, or at such other address for notice as the Borrowers shall
last have furnished in writing to the Person giving the notice;
(b) if to the Administrative Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Managing Director, ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇, fax number: (▇▇▇) ▇▇▇-▇▇▇▇ or
such other address for notice as the Administrative Agent shall last
have furnished in writing to the Person giving the notice; and
(c) if to any Lender, at such Lender's address set forth on
SCHEDULE 1 hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other
communication to be made hereunder or under the Notes or any Letter of Credit
Applications, even if otherwise required to be in writing under other provisions
of this Credit Agreement, the Notes or any Letter of Credit Applications, may
alternatively be made in an electronic record transmitted electronically under
such authentication and other procedures as the parties hereto may from time to
time agree in writing (but not an electronic record), and such electronic
transmission shall be effective at the time set forth in such procedures. Unless
otherwise expressly provided in such procedures, such an electronic record shall
be equivalent to a writing under the other provisions of this Credit Agreement,
the Notes or any Letter of Credit Applications, and such authentication, if made
in compliance with the procedures so agreed by the parties hereto in writing
(but not an electronic record), shall be equivalent to a signature under the
other provisions of this Credit Agreement, the Notes or any Letter of Credit
Applications.
16.7. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF
MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT
AGREEMENT OR ANY OF THE OTHER
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LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS
OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 16.6. EACH OF THE
BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
16.8. HEADINGS. The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
16.9. COUNTERPARTS. This Credit Agreement and any amendment hereof may
be executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any Loan
Document or of any amendment or waiver hereto or thereto shall be as effective
as an original executed counterpart hereof or thereof or of such amendment or
waiver and shall be considered a representation that an original executed
counterpart hereof or thereof or such amendment or waiver, as the case may be,
will be delivered.
16.10. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 16.12.
16.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER
LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
INCLUDING ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
THE ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE
LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, each of the Borrowers
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or
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any damages other than, or in addition to, actual damages. Each of the Borrowers
(a) certifies that no representative, agent or attorney of any Lender or the
Administrative Agent has represented, expressly or otherwise, that such Lender
or the Administrative Agent would not, in the event of litigation, seek to
enforce the foregoing waivers and (b) acknowledges that each of the
Administrative Agent and the Lenders have been induced to enter into this Credit
Agreement and the other Loan Documents to which it is a party by, among other
things, the waivers and certifications contained herein.
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Credit Agreement to be given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrowers of any terms of this Credit
Agreement, the other Loan Documents or such other instrument or the continuance
of any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrowers and the written consent of the
Required Lenders. Notwithstanding the foregoing, no amendment, modification or
waiver shall:
(a) without the written consent of the Borrowers and each
Lender directly affected thereby:
(i) reduce or forgive the principal amount of any
Loans or Reimbursement Obligations, or reduce the rate of
interest on the Notes or the amount of the Commitment Fee or
Letter of Credit Fees;
(ii) increase the amount of such Revolving Lender's
Commitment or such Term Lender's Term Loan Amount, or extend the
expiration date of such Revolving Credit Lender's Revolving
Credit Commitment;
(iii) postpone or extend the Revolving Credit Loan
Maturity Date or the Term Loan Maturity Date or any other
regularly scheduled dates for payments of principal of, or
interest on, the Loans or Reimbursement Obligations or any Fees
or other amounts payable to such Lender (it being understood
that (A) any vote to rescind any acceleration made pursuant to
Section 13.1 of amounts owing with respect to the Loans and
other Obligations and (B) any modifications of the provisions
relating to amounts, timing or application of prepayments of
Loans and other Obligations shall require only the approval of
the Required Lenders); and
(iv) other than pursuant to a transaction permitted
by the terms of this Credit Agreement, release all or
substantially all of the Collateral (excluding, if any Borrower
becomes a debtor under the federal Bankruptcy Code, the release
of "CASH COLLATERAL", as defined in Section 363(a) of the
federal Bankruptcy Code pursuant to a cash
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collateral stipulation with the debtor approved by the Required
Lenders);
(b) without the written consent of all of the Lenders, amend
or waive this Section 16.12 or the definition of "REQUIRED LENDERS";
(c) without the written consent of the Administrative Agent,
amend or waive Sections 2.10 or 14, the amount or time of payment of any
fees payable for the Administrative Agent's account or any Letter of
Credit Fees payable for the Administrative Agent's account or any other
provision applicable to the Administrative Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrowers shall entitle the Borrowers to other or further
notice or demand in similar or other circumstances.
16.13. BORROWERS' REPRESENTATIVE. Each of the Borrowers hereby
irrevocably appoints the Parent as such Borrower's representative and agent for
all purposes under this Credit Agreement and authorizes the Parent, on behalf of
each such Borrower and in each such Borrower's name to give and receive all
notices and documents, certificates and instruments to be given or received by
the Borrowers or any of them in connection with this Credit Agreement and the
other Loan Documents, including receipt of service of legal process in
connection with any suit or proceeding arising under, or in connection with the
transactions contemplated by this Credit Agreement, delivery of Loan Requests,
Conversion Requests, Compliance Certificates and requests for waivers and
amendments and to acknowledge or consent to any amendments, waivers or
assignments.
16.14. SEVERABILITY. The provisions of this Credit Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
17. PARI PASSU TREATMENT.
(a) Following the occurrence and during the continuance of any Event
of Default, each Lender agrees that if it shall, through the exercise of a right
of banker's lien, setoff or counterclaim against any Borrower (pursuant to
Section 16.1 or otherwise), including a secured claim under Section 506 of the
federal Bankruptcy Code or other security or interest arising from or in lieu
of, such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, obtain payment (voluntary or
involuntary) in respect of the Loans, and other Obligations held by it as a
result of which the unpaid principal portion of
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the Loans and the Obligations held by it shall be proportionately less than the
unpaid principal portion of the Loans and Obligations held by any other Lender,
it shall be deemed to have simultaneously purchased from such other Lender a
participation in the Loans and Obligations held by such other Lender, so that
the aggregate unpaid principal amount of the Loans, Obligations and
participations in Loans and Obligations held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of the Loans and Obligations
then Outstanding as the principal amount of the Loans and other Obligations held
by it prior to such exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Loans and other Obligations outstanding prior to such
exercise of banker's lien, setoff or counterclaim; PROVIDED, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 17 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustments restored without
interest.
(b) Each Borrower expressly consents to the foregoing arrangements
and agrees that any Person holding such a participation in the Loans and the
Obligations deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Person as fully as if such Person had made a Loan
directly to such Borrower in the amount of such participation.
(c) Nothing contained in this Section 17 shall impair, as between
the Borrowers and any Lender, the obligation of the Borrowers to pay such Lender
all amounts payable in respect of such Lender's Loans and other Obligations as
and when the same shall become due and payable in accordance with the terms
thereof.
18. TRANSITIONAL ARRANGEMENTS.
18.1. PRIOR CREDIT AGREEMENT SUPERSEDED. This Credit Agreement shall
supersede the Prior Credit Agreement in its entirety, except as provided in this
Section 18. On the Closing Date, the rights and obligations of the parties under
the Prior Credit Agreement which remain Lenders hereunder shall be subsumed
within and be governed by this Credit Agreement; PROVIDED, HOWEVER, (a) each of
the "LOANS" (as defined in the Prior Credit Agreement) outstanding under the
Prior Credit Agreement on the Closing Date shall, for purposes of this Credit
Agreement, be included as Revolving Credit Loans (as defined herein) and (b)
each of the letters of credit listed on SCHEDULE 4.1.1 issued by the issuing
banks under the Prior Credit Agreement shall be Letters of Credit under this
Credit Agreement.
18.2. RETURN AND SUBSTITUTION OF NOTES. As soon as reasonably
practicable after its receipt of its Notes hereunder on the Closing Date, each
of the Lenders which is a party to the Prior Credit Agreement will promptly
return to the Parent, marked "SUBSTITUTED", any superseded promissory notes of
the Borrowers, and any allonges thereto, held by such Lender pursuant to the
Prior Credit Agreement.
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18.3. INTEREST AND FEES UNDER PRIOR CREDIT AGREEMENT. All interest and
all commitment, facility and other fees and expenses owing or accruing under or
in respect of the Prior Credit Agreement shall be calculated as of the Closing
Date (prorated in the case of any fractional periods) and shall be paid on the
dates and in accordance with the method specified in the Prior Credit Agreement,
as if the Prior Credit Agreement were still in effect to those Lenders who
remain Lenders hereunder, and shall be paid on the Closing Date with respect to
Prior Banks who are withdrawing as parties to this Credit Agreement.
18.4. MISCELLANEOUS. For each of the UCC financing statements filed
previously in connection with the Prior Credit Agreement, any and all references
to "BankBoston, N.A., as Agent" shall be deemed to be references to "Fleet
National Bank, as Administrative Agent". The Borrowers acknowledge and agree
that the UCC financing statements previously filed in connection with the Prior
Credit Agreement shall remain in full force and effect with respect to the
Obligations hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
IESI CORPORATION
IESI TX CORPORATION
IESI NY CORPORATION
IESI NJ CORPORATION
IESI NJ RECYCLING CORPORATION
IESI AR CORPORATION
IESI MO CORPORATION
IESI AR LANDFILL CORPORATION
IESI PA CORPORATION
IESI TX GP CORPORATION
WASTE WATCHER'S, INC.
IESI PA BETHLEHEM LANDFILL CORPORATION
IESI PA BLUE RIDGE LANDFILL CORPORATION
IESI LA CORPORATION
IESI LA LANDFILL CORPORATION
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
IESI TX LANDFILL LP,
By IESI TX GP Corporation, its General
Partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
IESI DE LP CORPORATION
IESI DE CORPORATION
By:
--------------------------------------
Name:
Title:
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FLEET NATIONAL BANK, individually
and as Administrative Agent
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing
Director
[INSERT OTHER LENDERS]
By:
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Name: