AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of February 17, 2000
among
▇▇▇▇▇▇ American Corp.,
Vestar Capital Partners III, L.P.
and
BANK OF AMERICA, N. A.
i
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
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1.1 Definitions. 1
1.2 Computation of Time Periods. 7
SECTION 2 CREDIT FACILITIES 7
2.1 Loans 7
2.2 Letter of Credit Facility.
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES 11
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3.1 Default Rate. 11
3.2 Extension and Conversion. 11
3.3 Prepayments. 11
3.4 Termination and Reduction of Commitment. 12
3.5 Fees. 12
3.6 Capital Adequacy. 13
3.7 Limitation on Eurodollar Loans. 13
3.8 Illegality. 14
3.9 Requirements of Law. 14
3.10 Treatment of Affected Loans. 15
3.11 Taxes. 15
3.12 Compensation. 16
3.13 Payments, Computations, Etc. 16
3.14 Evidence of Debt. 17
SECTION 4 GUARANTY 17
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4.1 The Guaranty. 17
4.2 Obligations Unconditional. 17
4.3 Reinstatement. 18
4.4 Certain Additional Waivers. 18
4.5 Remedies. 18
4.6 Guarantee of Payment; Continuing Guarantee. 19
4.7 Deposit of Capital Call Notices. 19
SECTION 5 CONDITIONS 19
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5.1 Closing Conditions. 19
5.2 Conditions to all Extensions of Credit.
SECTION 6 REPRESENTATIONS AND WARRANTIES 20
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6.1 Existence and Power. 20
6.2 Authorization. 21
6.3 No Conflicts. 21
6.4 Consents. 22
6.5 Enforceable Obligations. 22
6.6 Permitted Investment. 22
6.7 Venture Capital Operating Company. 22
6.8 Deposited Notices. 22
6.9 Limitations on Actions. 23
SECTION 7 AFFIRMATIVE COVENANTS 23
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7.1 Outstanding Subscriptions. 23
7.2 General Partner. 23
7.3 Plan Assets, etc. 23
7.4 Receipt of the Funds Pursuant to the Deposited Notices23
SECTION 8 NEGATIVE COVENANTS 23
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8.1 Limitations on Actions. 23
SECTION 9 EVENTS OF DEFAULT 24
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9.1 Events of Default. 24
9.2 Acceleration; Remedies. 25
9.3 Cash Collateral Account. 25
9.4 Allocation of Fund Payments. 26
9.5 Receipt of Funds Pursuant to the Deposited Notices. 26
SECTION 10 MISCELLANEOUS 26
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10.1 Notices. 26
10.2 Right of Set-Off; Adjustments. 28
10.3 Benefit of Agreement. 29
10.4 No Waiver; Remedies Cumulative. 29
10.5 Expenses; Indemnification. 29
10.6 Amendments, Waivers and Consents. 30
10.7 Counterparts. 30
10.8 Headings. 30
10.9 Survival. 30
10.10 Governing Law; Submission to Jurisdiction; Venue. 30
10.11 Severability. 31
10.12 Entirety. 31
10.13 Binding Effect; Termination. 31
10.14 Limitation on Recourse to the Fund. 31
10.15 Confidentiality. 32
EXHIBITS
Exhibit A Form of Capital Call Notice
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 5.1(d) Form of Officer's Certificate
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 17, 2000 (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), is by and among ▇▇▇▇▇▇ American Corp., a Delaware corporation
(the "Borrower"), Vestar Capital Partners III, L.P., a Delaware limited
partnership (the "Fund"), and BANK OF AMERICA, N. A. (the "Bank"). ----
---- W I T N E S S E T H
WHEREAS, the Borrower, the Fund and the Bank are parties to that
certain Credit Agreement dated as of November 9, 1999 (the "Existing Credit
Agreement"); and
WHEREAS, the Borrower, the Fund and the Bank have agreed to amend and
restate the Existing Credit Agreement as set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Adjusted Base Rate" means the Base Rate plus 0.50%.
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"Adjusted Eurodollar Rate" means the Eurodollar Rate plus 1.50%.
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"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding ten percent (10%) or more of the Voting
Equity Interests in such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Applicable Lending Office" means the office of the Bank (or
of an Affiliate of the Bank) as the Bank may from time to time specify
to the Borrower by written notice as the office by which its Eurodollar
Loans are made and maintained.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bank" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (b) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" shall have the meaning assigned to such term in the
heading hereof, together with any permitted successors or assigns.
"Borrower Obligations" means, without duplication, all of the
obligations of the Borrower to the Bank, whenever arising, under this
Credit Agreement (including, but not limited to, any interest accruing
after the occurrence of a Bankruptcy Event with respect to the
Borrower, regardless of whether such interest is an allowed claim under
the Bankruptcy Code).
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or New
York, New York are authorized or required by law to close, except that,
when used in connection with a Eurodollar Loan, such day shall also be
a day on which dealings between banks are carried on in Dollar deposits
in London, England.
"Capital Call Notice" means a capital call notice satisfying
the requirements of Section 3.1 of the Partnership Agreement and
substantially in the form of Exhibit A attached hereto.
"Cash Collateral Account" shall have the meaning assigned to
such term in Section 9.3.
"Cash Equivalents" shall have the meaning assigned to such
term in the Existing Credit Agreement.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Commitment" means the commitment of the Bank in an aggregate
principal amount at any time outstanding of up to the Committed Amount,
to make Loans to the Borrower in accordance with the provisions of
Section 2.1(a) and issue Letters of Credit for the account of the
Borrower in accordance with the provisions of Section 2.2(a).
"Committed Amount" shall have the meaning assigned to such
term in Section 2.1(a).
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 3.2 hereof of a Eurodollar Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 3.2 or Sections 3.7 through 3.10,
inclusive, of a Base Rate Loan into a Eurodollar Loan.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Deposited Notices" means a collective reference to the
Capital Call Notices delivered by the Fund to the Bank pursuant to
Section 5.1(b) and maintained on deposit with the Bank as contemplated
by Section 4.7.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Equity Interest" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (iii) in the case of
a partnership, partnership interests (whether general or limited) and
(iv) in the case of a limited liability company, membership interests.
"Eurodollar Loan" means any Loan that bears interest at a rate
based upon the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Bank to be
equal to the quotient obtained by dividing (a) the Interbank Offered
Rate for such Eurodollar Loan for such Interest Period by (b) 1 minus
the Eurodollar Reserve Requirement for such Eurodollar Loan for such
Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the
maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are required to
be maintained under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurocurrency liabilities"
(as such term is used in Regulation D of such Board). Without limiting
the effect of the foregoing, the Eurodollar Reserve Requirement shall
reflect any other reserves required to be maintained by such member
banks with respect to (i) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other
assets which include Eurodollar Loans. The Adjusted Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such
term in Section 9.1.
"Existing Credit Agreement" means the Credit Agreement, dated
as of May 18, 1998, among ▇▇▇▇▇▇ American Corp., as borrower, the
guarantors party thereto, the lenders party thereto and Bank of
America, N.A., as agent for such lenders, as amended, modified,
restated or supplemented from time to time.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Bank (in its individual capacity) on such day on such
transactions as determined by the Bank.
"Fund" shall have the meaning assigned to such term in the
heading hereof.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time set forth in the opinions
and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board and the
rules and regulations of the Securities and Exchange Commission which
are applicable as of the date of determination.
"General Partner" means Vestar Associates III, L.P., a Delaware limited
partnership, as general partner of the Fund.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (g) all Guaranty Obligations of such Person, (h) the principal
portion of all obligations of such Person under any lease by that
Person as lessee which, in accordance with GAAP, should be accounted
for as a capital lease on the balance sheet of such Person, (i) all
obligations of such Person under Hedging Agreements, (j) the maximum
amount of all standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all preferred Equity Interests issued by such Person and which by
the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, mandatory
redemption or other acceleration (other than as a result of any event
or condition that does not in fact result in a redemption of such
preferred Equity Interests) prior to the Maturity Date, (l) the
principal portion of all obligations of such Person under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease for accounting purposes and (m) the
Indebtedness of any partnership or unincorporated joint venture in
which such Person is a general partner or a joint venturer to the
extent such Person is liable therefor.
"Interbank Offered Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/100 of 1%).
"Interest Payment Date" means (a) as to Base Rate Loans, the
last Business Day of each fiscal quarter of the Borrower and the
Maturity Date and (b) as to Eurodollar Loans, the last day of each
applicable Interest Period and the Maturity Date, and in addition where
the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Maturity Date and (c)
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Letter of Credit" means any letter of credit issued by the
Bank for the account of the Borrower in accordance with the terms of
Section 2.2.
"Lien" means, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such Property, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option
or other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Limited Partners" means the limited partners of the Fund.
"Loans" shall have the meaning assigned to such term in
Section 2.1(a). The term "Loan" shall also mean a portion of any Loan
bearing interest at the Adjusted Base Rate or the Adjusted Eurodollar
Rate and referred to as a Base Rate Loan or a Eurodollar Loan.
"LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.2(a).
"LOC Documents" means, with respect to any Letter of Credit,
any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Bank but not theretofore
reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or results of operations of the Fund, (ii) the
ability of the Fund to perform any material obligation under this
Credit Agreement or (iii) the rights and remedies of the Bank under
this CreditAgreement.
"Maturity Date" means December 31, 2001.
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"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Obligations" means, with respect to the Fund, all
Indebtedness, all other obligations that would be reflected as
liabilities on a balance sheet of the Fund and the purchase price that
the Fund (directly or indirectly, including, but not limited to,
through any Subsidiary of the Fund) or the General Partner has agreed,
pursuant to a binding contract, to pay for any investment or
acquisition that has not yet closed. The Obligations of the Fund at any
time shall include the payment obligations of the Fund under Section 4
of this Credit Agreement.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11(b).
"Partners" means a collective reference to the General Partner
and the Limited Partners.
"Partnership Agreement" means that certain limited partnership
agreement, dated as of November 22, 1996, among the General Partner and
the individuals and entities party thereto, as limited partners.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan Asset Regulations" means the plan asset regulations of
the Department of Labor, 29 CFR ss. 2510.3-101 et seq., as amended, and
the advisory opinions and rulings issued thereunder.
"Prime Rate" means the per annum rate of interest established
from time to time by the Bank as its prime rate, which rate may not be
the lowest rate of interest charged by the Bank to its customers.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Remaining Capital Commitment Balance" means, with respect to
any Limited Partner at any time, an amount equal to the total remaining
amount of capital contributions that such Limited Partner is obligated
at such time to make to the Fund pursuant to the terms of the
Partnership Agreement.
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Equity Interests of any class or
classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether
or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at such time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association,
joint venture or other entity of which such Person directly or
indirectly through Subsidiaries owns at such time more than 50% of the
Equity Interests.
"Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Unused Fee" shall have the meaning assigned to such term in
Section 3.5.
"Unused Committed Amount" means, for any period, the amount by
which (a) the then applicable Committed Amount exceeds (b) the daily
average sum for such period of (i) the outstanding aggregate principal
amount of all Loans plus (ii) the outstanding aggregate principal
amount of all LOC Obligations.
"Unused Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5.
"Voting Equity Interests" means, with respect to any Person,
Equity Interests issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 2
CREDIT FACILITIES
2.1 Loans.
(a) Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein,
the Bank agrees to make available to the Borrower revolving credit
loans requested by the Borrower in Dollars ("Loans") from time to time
from the Closing Date until the Maturity Date, or such earlier date as
the Commitment shall have been terminated as provided herein; provided,
however, that the sum of the aggregate principal amount of outstanding
Loans shall not exceed SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS
($7,500,000) (as such aggregate maximum amount may be reduced from time
to time as provided in Section 3.4, the "Committed Amount"). Loans may
consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request; provided, however, that no more
than 5 Eurodollar Loans shall be outstanding hereunder at any time (it
being understood that, for purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period). Loans
hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Loan Borrowings.
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(i) Notice of Borrowing. The Borrower shall request a
Loan borrowing by written notice (or telephonic notice
promptly confirmed in writing) to the Bank (a "Notice of
Borrowing") not later than 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of the requested borrowing
in the case of Base Rate Loans, and on the third Business Day
prior to the date of the requested borrowing in the case of
Eurodollar Loans. Each Notice of Borrowing shall be
irrevocable and shall specify (A) that a Loan is requested,
(B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of
Base Rate Loans, Eurodollar Loans or a combination thereof,
and if Eurodollar Loans are requested, the Interest Period(s)
therefor. Each Notice of Borrowing shall be acknowledged in
writing by the Fund. If the Borrower shall fail to specify in
any such Notice of Borrowing (I) an applicable Interest Period
in the case of a Eurodollar Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or
(II) the type of Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder.
(ii) Minimum Amounts. Each Eurodollar Loan or Base
Rate Loan that is a Loan shall be in integral multiples of
$100,000 (or the remaining amount of the Committed Amount, if
less).
(iii) Advances. The Bank will make each Loan
borrowing available to the Borrower by crediting the account
of the Borrower on the books of the Bank by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds
immediately available to the Borrower.
(c)Repayment. The Borrower hereby promises to pay to the
order of the Bank, on the Maturity Date (unless accelerated
sooner pursuant to Section 9.2), the principal amount of
Seven Million Five Hundred Thousand Dollars ($7,500,000) or,
if less than such principal amount, the aggregate unpaid
principal amount of all Loans then outstanding.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Loans
shall be comprised in whole or in part of Base Rate Loans,
such Base Rate Loans shall bear interest at a per annum rate
equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Loans
shall be comprised in whole or in part of Eurodollar Loans,
such Eurodollar Loans shall bear interest at a per annum rate
equal to the Adjusted Eurodollar Rate.
The Borrower hereby promises to pay in arrears to the order of the
Bank, on each Interest Payment Date (or at such other times as may be
specified herein), accrued interest on the Loans.
2.2 Letter of Credit Facility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Bank may reasonably require and in reliance upon the
representations and warranties set forth herein, the Bank agrees to
issue standby and trade Letters of Credit in Dollars from time to time
from the Closing Date until the date five (5) days prior to the
Maturity Date as the Borrower may request, in a form acceptable to the
Bank; provided, however, that (i) the LOC Obligations outstanding shall
not at any time exceed SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS
($7,500,000) (the "LOC Committed Amount") and (ii) the sum of the
aggregate principal amount of outstanding Loans plus LOC Obligations
outstanding shall not at any time exceed the Committed Amount. No
Letter of Credit shall (x) have an original expiry date more than one
year from the date of issuance or (y) as originally issued or as
extended, have an expiry date extending beyond the Maturity Date. Each
Letter of Credit shall comply with the related LOC Documents. The
issuance and expiry dates of each Letter of Credit shall be a Business
Day.
(b) Notice. The request for the issuance of a Letter of Credit
shall be submitted by the Borrower to the Bank at least three (3)
Business Days prior to the requested date of issuance.
(c) Reimbursement. In the event of any drawing under any
Letter of Credit, the Bank will promptly notify the Borrower. Unless
the Borrower shall immediately notify the Bank that the Borrower
intends to otherwise reimburse the Bank for such drawing, the Borrower
shall be deemed to have requested that the Bank make a Loan in the
amount of the drawing as provided in subsection (d) below on the
related Letter of Credit, the proceeds of which will be used to satisfy
the related reimbursement obligations. The Borrower promises to
reimburse the Bank on the day on which the Bank notifies the Borrower
of a drawing under any Letter of Credit (either with the proceeds of a
Loan obtained hereunder or otherwise) in same day funds provided such
notice is received by the Borrower from the Bank on or before 2:00
P.M.(Charlotte, North Carolina time) (otherwise such payment shall be
made on or before 12:00 Noon (Charlotte, North Carolina time) on the
Business Day next succeeding the day such notice is received). The
unreimbursed amount of any drawing under a Letter of Credit shall bear
interest at a per annum rate equal to (i) for the first two (2)
Business Days following the date of the related drawing, the Adjusted
Base Rate and (ii) thereafter, the Adjusted Base Rate plus 2%. The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment the Borrower may claim or
have against the Bank, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any defense
based on any failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit.
(d) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a Loan
advance to reimburse a drawing under a Letter of Credit, a Loan advance
comprised of Base Rate Loans (or Eurodollar Loans to the extent the
Borrower has complied with the procedures of Section 2.1(b)(i) with
respect thereto) shall be immediately made to the Borrower by the Bank.
(e) Designation of a Subsidiary as an Account Party.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a), a Letter of
Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Subsidiary of the
Borrower, provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
(f) Renewal, Extension. The renewal or extension of
any Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Bank may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby Practices
1998 (the "ISP98"), in either case as published as of the date of issue
by the International Chamber of Commerce, in which case the UCP or the
ISP98, as applicable, may be incorporated therein and deemed in all
respects to be a part thereof.
(h) Indemnification; Nature of Bank's Duties.
----------------------------------------
(i) In addition to its other obligations under this
Section 2.2, the Borrower hereby agrees to pay, and protect,
indemnify and save the Bank harmless from and against, any and
all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees)
that the Bank may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Bank to honor a drawing under
a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Bank, the
Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. The
Bank shall not be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (D) for any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from
causes beyond the control of the Bank, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Bank's rights or
powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Bank, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the Bank under any resulting liability to the Borrower or the
Fund. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and
indemnify the Bank against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower, including, without limitation,
any and all Government Acts. The Bank shall not, in any way,
be liable for any failure by it or anyone else to pay any
drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the
Bank.
(iv) Nothing in this subsection (h) is intended to
limit the reimbursement obligations of the Borrower contained
in subsection (c) above. The obligations of the Borrower under
this subsection (h) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Bank to enforce any right, power or
benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (h), the Borrower shall have no
obligation to indemnify the Bank in respect of any liability
incurred by the Bank (A) arising out of the gross negligence
or willful misconduct of the Bank, or (B) caused by the Bank's
failure to pay under any Letter of Credit after presentation
to it of a request strictly complying with the terms and
conditions of such Letter of Credit, unless such payment is
prohibited by any Government Act.
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any
letter of credit application), this Credit Agreement shall control.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of default in the
payment of any amount hereunder, such overdue amount shall bear interest,
payable on demand, at a per annum rate 2% greater than the rate which would
otherwise be applicable (or if no rate is applicable, whether in respect of
interest, fees or other amounts, then the Adjusted Base Rate plus 2%).
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto unless the Borrower makes payment of any
amounts payable pursuant to Section 3.12 in connection with such conversion or
extension, (ii) no Eurodollar Loan may be extended and no Base Rate Loan may be
converted into Eurodollar Loans when any Default or Event of Default is in
existence and the Bank has determined that such conversion or extension is not
appropriate, (iii) Loans extended as, or converted into, Eurodollar Loans shall
be subject to the terms of the definition of "Interest Period" set forth in
Section 1.1 and shall be in such minimum amounts as provided in Section
2.1(b)(ii), (iv) no more than 5 Eurodollar Loans shall be outstanding hereunder
at any time (it being understood that, for purposes hereof, Eurodollar Loans
with different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period), and (v) any request for extension or conversion of a
Eurodollar Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephonic notice promptly confirmed in writing) to the
office of the Bank specified in specified in Section 10.1, or at such other
office as the Bank may designate in writing, prior to 11:00 A.M. (Charlotte,
North Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior to,
in the case of the extension of a Eurodollar Loan as, or conversion of a Base
Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall be irrevocable.
In the event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the
right to prepay Loans in whole or in part from time to time.
(b) Mandatory Prepayments.
---------------------
(i) Committed Amount.If, at any time, the sum of the
aggregate principal amount of outstanding Loans plus LOC
Obligations outstanding shall exceed the Committed Amount, the
Borrower hereby promises to prepay the Loans immediately and
(after all Loans and have been repaid) cash collateralize the
LOC Obligations in an amount sufficient to eliminate such
excess.
(ii) Other. Notwithstanding any provision of this
Credit Agreement to the contrary, the Borrower hereby promises
to prepay each Loan on or before the date 30 days after such
Loan is advanced by the Bank; provided that each of the
parties hereto agrees that the Fund may, in its sole
discretion, waive the obligation of the Borrower under this
Section 3.3(b)(ii) with respect to any Loan.
(c) Generally. All prepayments under this Section 3.3(a) shall
be subject to Section 3.12, but otherwise without premium or penalty,
and be accompanied by interest on the principal amount prepaid through
the date of prepayment.
3.4 Termination and Reduction of Commitment.
(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Committed Amount in whole or in
part in integral multiples of $100,000 (or, if less, the full remaining
amount of the then applicable Committed Amount) upon five Business
Days' prior written notice to the Bank; provided, however, no such
termination or reduction shall be made which would cause the aggregate
principal amount of outstanding Loans plus LOC Obligations outstanding
to exceed the Committed Amount unless, concurrently with such
termination or reduction, the Loans are repaid to the extent necessary
to eliminate such excess.
(b) Maturity Date. The Commitment of the Bank shall
automatically terminate on the Maturity Date.
-------------
(c) General. The Borrower shall pay to the Bank in accordance
with the terms of Section 3.5, on the date of each termination or
reduction of the Committed Amount, the Unused Fee accrued through the
date of such termination or reduction on the amount of the Committed
Amount so terminated or reduced.
3.5 Fees.
(a) Unused Fee. In consideration of the Commitment of the Bank
hereunder, the Borrower hereby promises to pay to the Bank a fee (the
"Unused Fee") on the Unused Committed Amount computed at a per annum
rate for each day during the applicable Unused Fee Calculation Period
(hereinafter defined) at a rate equal to 50 basis points. The Unused
Fee shall commence to accrue on the Closing Date and shall be due and
payable in arrears on the last business day of each March, June,
September and December (and any date that the Committed Amount is
reduced as provided in Section 3.4(a) and the Maturity Date) for the
immediately preceding quarter (or portion thereof) (each such quarter
or portion thereof for which the Unused Fee is payable hereunder being
herein referred to as an "Unused Fee Calculation Period"), beginning
with the first of such dates to occur after the Closing Date.
(b) Letter of Credit Fees.
---------------------
(i) Standby Letter of Credit Issuance Fee. In
consideration of the issuance of standby Letters of Credit
hereunder, the Borrower promises to pay to the Bank a fee of
3.0% per annum on the average daily maximum amount available
to be drawn under each such standby Letter of Credit computed
for each day from the date of issuance to the date of
expiration; such fee will be payable quarterly in arrears on
the last Business Day of each March, June, September and
December and the Maturity Date for the immediately preceding
quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In
consideration of the issuance of trade Letters of Credit
hereunder, the Borrower promises to pay to the Bank a fee of
1.5% per annum on the average daily maximum amount available
to be drawn under each such trade Letter of Credit computed
for each day from the date of issuance to the date of
expiration; such fee will be payable quarterly in arrears on
the last Business Day of each March, June, September and
December and the Maturity Date for the immediately preceding
quarter (or a portion thereof).
(iii) Fronting Fees, etc. In addition to the fees
payable pursuant to clauses (i) and (ii) above, the Borrower
promises to pay to the Bank (i) a letter of credit fronting
fee of 0.125% per annum on the average daily maximum amount
available to be drawn under each Letter of Credit computed for
each day from the date of issuance to the date of expiration
(which fronting fee shall be payable quarterly in arrears on
the last Business Day of each March, June, September and
December and the Maturity Date for the immediately preceding
quarter (or a portion thereof)) and (ii) the customary charges
from time to time of the Bank with respect to the issuance,
amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit.
3.6 Capital Adequacy.
If the Bank has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
the Bank with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has the effect of reducing the rate of return on the Bank's capital or
assets as a consequence of its commitments or obligations hereunder to a level
below that which the Bank could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration the Bank's
policies with respect to capital adequacy) by an amount deemed by the Bank to be
material, then, upon notice from the Bank to the Borrower setting forth in
reasonable detail the change and the calculation of such reduced rate of return,
the Borrower shall be obligated to pay to the Bank such additional amount or
amounts as will compensate the Bank for such reduction. Each determination by
the Bank of amounts owing under this Section shall, absent demonstrable error,
be conclusive and binding on the parties hereto.
3.7 Limitation on Eurodollar Loans.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Bank determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Bank determines (which determination shall be
conclusive) that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Bank of funding Eurodollar Loans for such
Interest Period;
then the Bank shall give the Borrower prompt notice thereof, and so long as such
condition remains in effect, the Bank shall be under no obligation to make
additional Eurodollar Loans, Continue Eurodollar Loans, or Convert Base Rate
Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of the
then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement. The Bank will
promptly withdraw any determination pursuant to this Section 3.7 as soon as
circumstances allow.
3.8 Illegality.
Notwithstanding any other provision of this Credit Agreement, in the
event that it becomes unlawful for the Bank or its Applicable Lending Office to
make, maintain or fund Eurodollar Loans hereunder, then the Bank shall promptly
notify the Borrower thereof and the Bank's obligation to make, Convert into,
Continue or maintain Eurodollar Loans shall be suspended until such time as the
Bank may again make, maintain, and fund Eurodollar Loans (in which case the
provisions of Section 3.10 shall be applicable).
3.9 Requirements of Law.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject the Bank (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Loans or its
obligation to make Loans, or change the basis of taxation of any
amounts payable to the Bank (or its Applicable Lending Office) under
this Credit Agreement in respect of any Loans (other than Taxes defined
in Section 3.11(a) and taxes imposed on the overall net income of the
Bank by the jurisdiction in which such Bank has its principal office or
such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Eurodollar Reserve Requirement utilized in the determination of the
Adjusted Eurodollar Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or commitments of,
such Bank (or its Applicable Lending Office), including the Commitment
of the Bank hereunder; or
(iii) shall impose on the Bank (or its Applicable Lending
Office) or the London interbank market any other condition affecting
this Credit Agreement or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase, by an amount deemed by
the Bank (or its Applicable Lending Office) to be material, the cost to the Bank
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Credit Agreement, then
the Borrower shall pay to the Bank on demand such amount or amounts as will
compensate the Bank for such increased cost or reduction. If the Bank requests
compensation by the Borrower under this Section 3.9, the Borrower may, by notice
to the Bank, suspend the obligation of the Bank to make, Convert into, Continue
or maintain the affected Loans, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section 3.10
shall be applicable); provided that such suspension shall not affect the right
of the Bank to receive the compensation so requested. The Bank shall promptly
notify the Borrower of any event of which it has knowledge, occurring after the
date hereof, which will entitle the Bank to compensation pursuant to this
Section 3.9 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of the Bank, be otherwise disadvantageous to it.
If the Bank claims compensation under this Section 3.9, it shall furnish to the
Borrower a statement setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of demonstrable error. In determining such amount, the
Bank may use any reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans.
If the obligation of the Bank to make, Convert into, Continue or
maintain Eurodollar Loans shall be suspended pursuant to Section 3.8 or 3.9
hereof, the Bank's Eurodollar Loans shall be automatically Converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for such
Eurodollar Loans (or, in the case of a Conversion required by Section 3.8
hereof, on such earlier date required by law as the Bank may specify to the
Borrower) and, unless and until the Bank gives notice as provided below that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that the Bank's Eurodollar Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to the Bank's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by the
Bank as Eurodollar Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of the Bank that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
3.11 Taxes.
(a) Any and all payments by the Borrower to or for the account
of the Bank hereunder shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding taxes imposed on the Bank as a result of a
present or former connection between it and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection
arising solely from the Bank having executed, delivered or performed
its obligations or received a payment under, or enforced, this Credit
Agreement) (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable under this
Credit Agreement to the Bank, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions for Taxes applicable to additional sums payable under this
Section 3.11) the Bank receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to
the Bank, at its address referred to in Section 10.1, the original or a
certified copy of a receipt evidencing payment thereof. Notwithstanding
the foregoing, no additional sums shall be payable pursuant to Section
3.11(a)(i) or 3.11(c) with respect to Taxes unless imposed as a result
of a change in treaty, law or regulation.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Credit Agreement or from the execution or
delivery of, or otherwise with respect to, this Credit Agreement
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify the Bank for the full
amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.11) paid by the Bank and any liability for
penalties, interest, and expenses arising therefrom or with respect
thereto.
(d) If the Borrower is required to pay additional amounts to
or for the account of the Bank pursuant to this Section 3.11, then the
Bank will agree to use reasonable efforts to change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the
reasonable judgment of the Bank, is not otherwise materially
disadvantageous to the Bank.
(e) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Bank the original or a
certified copy of a receipt evidencing such payment.
(f) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.11 shall survive the repayment of
the Loans, LOC Obligations and other obligations under this Credit
Agreement and the termination of the Commitment hereunder.
(g) If the Bank receives a refund with respect to Taxes paid
by the Borrower, which in the good faith judgment of the Bank is
allocable to such payment, the Bank shall promptly pay such refund,
together with any other amounts paid by the Borrower in connection with
such refunded Taxes, to the Borrower, net of all out-of-pocket expenses
of the Bank incurred in obtaining such refund, provided, however, that
the Borrower agrees to promptly return such refund to the Bank if it
receives notice from the Bank that the Bank is required to repay such
refund. The Bank agrees that it will contest such Taxes or liabilities
if the Bank determines, in its reasonable judgment, that it would not
be materially disadvantaged or prejudiced as a result of such contest.
3.12 Compensation.
Upon the request of the Bank, the Borrower shall pay to the Bank such
amount or amounts as shall be sufficient (in the reasonable opinion of the Bank)
to compensate it for any loss, cost, or expense (excluding loss of anticipated
profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9.2) on a date other than the last day of
the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 5 to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this Credit
Agreement.
Such indemnification may include an amount equal to the excess, if any, of (a)
the amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the Eurodollar Rate over (b) the amount of interest (as
reasonably determined by the Bank) which would have accrued to the Bank on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. If the Bank claims compensation under
this Section 3.12, it shall furnish to the Borrower a statement setting forth in
reasonable detail the calculation of the amounts to be paid to it hereunder
which shall be conclusive in the absence of demonstrable error. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under this Credit Agreement and the
termination of the Commitment hereunder.
3.13 Payments, Computations, Etc.
Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Bank in immediately available funds, without
setoff, deduction, counterclaim or withholding of any kind, at the Bank's office
specified in Section 10.1 not later than 2:00 P.M. (Charlotte, North Carolina
time) on the date when due. Any payment received after such time shall be deemed
to have been received on the next succeeding Business Day. The Borrower shall,
at the time it makes any payment under this Credit Agreement, specify to the
Bank the Borrower Obligations to which such payment is to be applied (and in the
event that it fails so to specify, or if such application would be inconsistent
with the terms hereof, the Bank shall apply such payment in such manner as the
Bank may determine to be appropriate). Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to accrual of
interest and fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number of
days elapsed over a year of 360 days, except with respect to computation of
interest on Base Rate Loans which (unless the Base Rate is determined by
reference to the Federal Funds Rate) shall be calculated based on a year of 365
or 366 days, as appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
3.14 Evidence of Debt.
(a) The Bank shall maintain an account or accounts evidencing
each Loan made by the Bank from time to time, in which such accounts
shall be recorded (i) the amount, type and Interest Period of each such
Loan hereunder, (ii) the amount of any principal or interest payable
and paid or to become due and payable to the Bank hereunder and (iii)
the amount of any sum received by the Bank hereunder from or for the
account of the Borrower. The Bank will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update
its account or accounts from time to time, as necessary.
(b) The entries made in the accounts maintained pursuant to
subsection (a) of this Section 3.14 shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of the Bank to maintain
any such account, or any error therein, shall not in any manner affect
the obligation of the Borrower to pay the Borrower Obligations owing to
the Bank.
SECTION 4
GUARANTY
4.1 The Guaranty.
The Fund hereby guarantees to the Bank as hereinafter provided the
prompt payment of the Borrower Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in
accordance with the terms thereof. The Fund hereby further agrees that if any of
the Borrower Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise), the Fund
will promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Borrower
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
4.2 Obligations Unconditional.
The obligations of the Fund under Section 4.1 are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of this Credit Agreement, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the
Borrower Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.2 that the obligations of the Fund
hereunder shall be absolute and unconditional under any and all circumstances.
The Fund agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower for amounts paid under this
Section 4 until such time as the Bank has been paid in full and the Commitment
under this Credit Agreement has been terminated. Without limiting the generality
of the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of the Fund hereunder which shall remain absolute and unconditional as
described above:
(a) at any time or from time to time, without notice to the
Fund, the time for any performance of or compliance with any of the
Borrower Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of
this Credit Agreement shall be done or omitted;
(c) the maturity of any of the Borrower Obligations shall be
accelerated, or any of the Borrower Obligations shall be modified,
supplemented or amended in any respect, or any right under this Credit
Agreement or any other agreement or instrument referred to in this
Credit Agreement shall be waived or any other guarantee of any of the
Borrower Obligations or any security therefor shall be released,
impaired or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Bank as
security for any of the Borrower Obligations shall fail to attach or be
perfected; or
(e) any of the Borrower Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of the Fund) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of the Fund).
With respect to its obligations hereunder, the Fund hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Bank exhaust any right, power or remedy or proceed
against any Person under this Credit Agreement or any other agreement or
instrument referred to in this Credit Agreement, or against any other Person
under any other guarantee of, or security for, any of the Borrower Obligations.
4.3 Reinstatement.
The obligations of the Fund under this Section 4 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Borrower Obligations is rescinded or must be
otherwise restored by any holder of any of the Borrower Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
the Fund agrees that it will indemnify the Bank on demand for all reasonable
costs and expenses (including, without limitation, fees and expenses of counsel)
incurred by the Bank in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Without limiting the generality of the provisions of this Section 4,
the Fund hereby specifically waives the benefits of N.C. Gen. Stat.ss.ss.26-7
through 26-9, inclusive, to the extent applicable. The Fund further agrees that
it shall have no right of recourse to security for the Borrower Obligations,
except through the exercise of rights of subrogation pursuant to Section 4.2.
4.5 Remedies.
The Fund agrees that, to the fullest extent permitted by law, as
between the Fund, on the one hand, and the Bank, on the other hand, the Borrower
Obligations may be declared to be forthwith due and payable as provided in
Section 9.2 (and shall be deemed to have become automatically due and payable in
the circumstances provided in said Section 9.2) for purposes of Section 4.1
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Borrower Obligations from becoming automatically
due and payable) as against any other Person and that, in the event of such
declaration (or the Borrower Obligations being deemed to have become
automatically due and payable), the Borrower Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the Fund
for purposes of Section 4.1.
4.6 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Section 4 is a guaranty of payment and not of
collection and shall continue in effect until such time as (a) all principal of
and interest accrued to such date which constitute Borrower Obligations shall
have been paid in full in cash, (b) all fees, expenses and other amounts then
due and payable which constitute Borrower Obligations shall have been paid in
cash, (c) all outstanding Letters of Credit shall have been (i) terminated, (ii)
fully cash collateralized or (iii) secured by one or more letters of credit on
terms and conditions, and with one or more financial institutions, reasonably
satisfactory to the Bank and (d) the Commitment shall have been expired or
terminated in full.
4.7 Deposit of Capital Call Notices.
The Fund hereby agrees that each of the Capital Call Notices delivered
by the Fund to the Bank pursuant to Section 5.1(b) shall be held by the Bank on
deposit and shall be delivered by the Bank to the Partners only under the
circumstances contemplated by, and otherwise in accordance with the terms of,
Section 9.2.
SECTION 5
CONDITIONS
5.1 Closing Conditions.
The obligation of the Bank to enter into this Credit Agreement and to
make the initial Loans or to issue the initial Letter(s) of Credit, whichever
shall occur first, shall be subject to satisfaction of the following conditions
(in form and substance acceptable to the Bank):
(a) Executed Credit Agreement. Receipt by the Bank of
duly executed copies of this Credit Agreement.
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(b) Deposited Notices.Receipt by the Bank of an original
Capital Call Notice for each Limited Partner, in each case executed
by the General Partner and directing such Limited Partner to wire
transfer funds to the Bank in an amount equal to such Limited Partner's
pro rata share of the original Committed Amount (i.e., $7,500,000).
(c) Legal Opinion. Receipt of a legal opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Fund, in form and
-------------
substance reasonably satisfactory to the Bank.
(d) Officer's Certificates. Receipt by the Bank of a
certificate in the form of Exhibit 5.1(d) duly executed
by an Executive Officer of the general partner of the General Partner
as of the Closing Date
5.2 Conditions to all Extensions of Credit.
The obligations of the Bank to make any Loan or issue or extend any
Letter of Credit (including the initial Loans and the initial Letter(s) of
Credit) are subject to satisfaction of the following conditions in addition to
satisfaction on the Closing Date of the conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any
Loan, an appropriate Notice of Borrowing and (ii) in the case of any
Letter of Credit, the Bank shall have received an appropriate request
for issuance in accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 6
shall, subject to the limitations set forth therein, be true and
correct in all material respects as of such date (except for those
which expressly relate to an earlier date);
(c) There shall not have been commenced against the Borrower
or the Fund an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto; and
(e) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the aggregate principal
amount of outstanding Loans plus LOC Obligations outstanding shall not
exceed the Committed Amount and (ii) the LOC Obligations shall not
exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each request for a Letter of Credit
pursuant to Section 2.2(b) and each Notice of Extension/Conversion shall
constitute a representation and warranty by the Borrower (with respect to itself
only) and the Fund of the correctness of the matters specified in subsections
(b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6.1 Existence and Power.
(a) The Fund hereby represents to the Bank that each of the
Fund and the General Partner is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in good standing as a foreign limited partnership in
each other jurisdiction where ownership of its properties or the
conduct of its business requires it to be so other than in such
jurisdictions where failure to be in good standing could not reasonably
be expected to have a Material Adverse Effect, and has all power and
authority under such laws and its partnership agreement and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(b) The Fund hereby represents to the Bank that the general
partner of the General Partner (i) is duly incorporated, validly
existing and in good standing under the laws of the state of its
incorporation, (ii) has all corporate power pursuant to proper
authorization to enable it to act as the general partner of the General
Partner and to enter into this Credit Agreement on the Fund's behalf,
and (iii) is duly qualified to do business and is in good standing in
each other jurisdiction where it is required to be qualified in order
to act as the general partner of the General Partner, other than in
such jurisdictions where the failure to be so qualified and in good
standing could not reasonably be expected to have a Material Adverse
Effect.
(c) The Borrower hereby represents to the Bank that the
Borrower (i) is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and (ii) has all
corporate power pursuant to proper authorization to enter into this
Credit Agreement.
6.2 Authorization.
(a) The Fund hereby represents to the Bank that the Fund has
the partnership or other necessary power and authority, and the legal
right, to enter into this Credit Agreement and to perform its
obligations hereunder and consummate the transactions contemplated
hereby and has by proper action duly authorized the execution and
delivery of this Credit Agreement and the Deposited Notices. Without
limiting the generality of the above, the Fund has by proper action
duly authorized (i) the execution and delivery of one or more Capital
Call Notices to each Partner in order to fund the obligations of the
Fund under Section 4, (ii) the depositing of such Capital Call Notices
with the Bank in the manner contemplated by Section 4.7 and (iii) the
authorizing of the Bank to deliver such Capital Call Notices on behalf
of the Fund in accordance with the terms of Section 9.2(c).
(b) The Borrower hereby represents to the Bank that the
Borrower has the corporate power and authority, and the legal right, to
enter into this Credit Agreement and to perform its obligations
hereunder, to obtain extensions of credit hereunder and to consummate
the transactions contemplated hereby and has by proper action duly
authorized the execution and delivery of this Credit Agreement.
6.3 No Conflicts.
(a) The Fund hereby represents to the Bank that neither the
execution and delivery by the Fund of this Credit Agreement nor the
consummation of the transactions contemplated herein, nor performance
by the Fund of and compliance with the terms and provisions hereof will
(i) violate or conflict with any provision of the Partnership Agreement
or other governance document, (ii) violate any material law,
regulation, order, writ, judgment, injunction, decree or permit
applicable to it, (iii) violate or conflict with contractual provisions
of, or cause an event of default under, any indenture, loan agreement,
mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which
could reasonably be expected to have a Material Adverse Effect or (iv)
result in or require the creation of any Lien (other than those
contemplated in or in connection with this Credit Agreement) upon or
with respect to the Fund's Properties.
(b) The Borrower hereby represents to the Bank that neither
the execution and delivery by the Borrower of this Credit Agreement nor
the consummation of the transactions contemplated herein, nor
performance by the Borrower of and compliance with the terms and
provisions hereof will (i) violate or conflict with any provision of
its articles or certificate of incorporation or bylaws or other
organizational or governing documents, (ii) violate any material law,
regulation, order, writ, judgment, injunction, decree or permit
applicable to it, (iii) violate or conflict with contractual provisions
of, or cause an event of default under, any indenture, loan agreement,
mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which
could reasonably be expected to have a material adverse effect on the
business, assets, operations, results of operations or financial
condition of the Borrower and its Subsidiaries taken as a whole or (iv)
result in or require the creation of any Lien (other than those
contemplated in or in connection with this Credit Agreement) upon or
with respect to the Borrower's Properties.
6.4 Consents.
(a) The Fund hereby represents to the Bank that no consent,
approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or other Person
is required in connection with the execution, delivery or performance
by the Fund of this Credit Agreement or with the execution and delivery
by the General Partner on the Fund's behalf of the Deposited Notices.
(b) The Borrower hereby represents to the Bank that no
consent, approval, authorization or order of, or filing, registration
or qualification with, any court or Governmental Authority or other
Person is required in connection with the execution, delivery or
performance by the Borrower of this Credit Agreement.
6.5 Enforceable Obligations.
(a) The Fund hereby represents to the Bank that this Credit
Agreement has been duly executed and delivered by the Fund and
constitutes legal, valid and binding obligations of the Fund,
enforceable against the Fund in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in proceedings in equity or at law and by an implied
covenant of good faith and fair dealing.
(b) The Borrower hereby represents to the Bank that this
Credit Agreement has been duly executed and delivered by the Borrower
and constitutes legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in proceedings in equity or at law and by an implied
covenant of good faith and fair dealing.
6.6 Permitted Investment.
The Fund hereby represents to the Bank that (a) the incurrence of the
obligations of the Fund set forth in this Credit Agreement are permitted by the
Partnership Agreement, and (b) the Limited Partners shall be obligated to make
additional capital contributions (each in a pro rata amount in proportion to
such Limited Partner's total capital commitment obligation to the Fund under the
Partnership Agreement) for the purpose of providing funds to or for the account
of the Fund in an aggregate amount at least equal to the Committed Amount for
the purpose of providing funds to the Fund sufficient to repay in full the
Borrower Obligations, if so requested by the General Partner.
6.7 Venture Capital Operating Company.
The Fund hereby represents to the Bank that the Fund is a venture
capital operating company within the meaning of the Plan Asset Regulations, or,
the Fund satisfies another exception under the Plan Asset Regulations such that
the assets of the Fund are not "plan assets" within the meaning and as defined
in the Plan Asset Regulations.
6.8 Deposited Notices.
The Fund hereby represents to the Bank that each Deposited Notice, when
delivered by the Bank to the applicable Limited Partner in accordance with the
terms of Section 9.2(c), will give rise to a legal, valid and binding obligation
on the part of such Limited Partner to pay to the Bank (for the account of the
Fund) such Limited Partner's pro rata share of the original Committed Amount
($7,500,000), enforceable against such Limited Partner in accordance with the
terms of such Deposited Notice and the Partnership Agreement.
6.9 Limitations on Actions.
The Fund hereby represents to the Bank that the Fund is not aware of
any event or condition that could (i) have a material adverse effect on the
ability of the Fund to perform its obligations under this Credit Agreement, (ii)
render invalid or unenforceable any of the Deposited Notices or (iii) otherwise
modify the obligations of any of the Partners and/or any Person becoming
Partners subsequent to the Closing Date which arise upon the due delivery of,
and as contemplated by, the Deposited Notices.
SECTION 7
AFFIRMATIVE COVENANTS
The Fund hereby covenants and agrees that so long as this Credit
Agreement is in effect:
7.1 Outstanding Subscriptions.
The Fund will cause the aggregate Remaining Capital Commitments of all
Limited Partners to equal or exceed the sum of (i) the Committed Amount plus
(ii) all other Obligations of the Fund.
7.2 General Partner.
The Fund will cause (i) Vestar Associates III, L.P. to be the sole
general partner of the Fund at all times and (ii) Vestar Associates Corporation
III to be the sole general partner of the General Partner at all times.
7.3 Plan Assets, etc.
The Fund shall either (i) be a venture capital operating company within
the meaning of the Plan Asset Regulations, or (ii) satisfy another exception
under the Plan Asset Regulations such that the assets of the Fund are not "plan
assets" within the meaning and as defined in the Plan Asset Regulations.
7.4 Receipt of the Funds Pursuant to the Deposited Notices.
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Immediately upon receipt by the Fund or any of its Affiliates of
payment by any Limited Partner in respect of a Deposited Notice delivered by the
Bank pursuant to Section 9.2(c), the Fund shall (i) notify the Bank in writing
specifying the Limited Partner making such payment and the amount thereof and
(ii) forward, or cause to be forwarded, the funds representing such payment to
the Parent.
SECTION 8
NEGATIVE COVENANTS
The Fund hereby covenants and agrees that so long as this Credit
Agreement is in effect:
8.1 Limitations on Actions.
The Fund shall not take any action that could (i) render invalid or
unenforceable any of the Deposited Notices or (ii) otherwise modify the
obligations of any of the Partners and/or any Person becoming Partners
subsequent to the Closing Date which arise upon the due delivery of, and as
contemplated by, the Deposited Notices.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence and
continuation of any of the following specified events (each an "Event of
Default"):
(a) Payment. The Borrower shall
(i) default in the payment when due of any principal
of any of the Loans, or
(ii) default, and such default shall continue for
five (5) or more Business Days, in the payment when due of any
interest on the Loans, or of any fees or other amounts owing
hereunder or in connection herewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by the Borrower or the Fund herein or in any
statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect on the
date as of which it was made or deemed to have been made; or
(c) Covenants.
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(i) The Fund shall default in the due performance
or observance of any term, covenant or agreement
contained in Section 7 or Section 8; or
(ii) The Borrower or the Fund shall default in the
due performance or observance by it of any term, covenant or
agreement (other than those referred to in subsections (a),
(b) or (c)(i) of this Section 9.1) contained in this Credit
Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a responsible
officer of the Borrower or the Fund becoming aware of such
default or notice thereof by the Bank; or
(d) Guaranties. The guaranty given by the Fund hereunder or
any provision thereof shall cease to be in full force and effect, or
the Fund or any Person acting by or on behalf of the Fund shall deny or
disaffirm the Fund's obligations under such guaranty, or the Fund shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to Section
4; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to the Borrower or the Fund; or
---------------
(f) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $20 million in the aggregate for the Fund,
(A)(1) the Fund shall default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness, or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto,
or any other event or condition shall occur or condition exist, the
effect of which default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness (or trustee or agent
on behalf of such holders) to cause (determined without regard to
whether any notice or lapse of time is required), any such Indebtedness
to become due prior to its stated maturity; or (B) any such
Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior
to the stated maturity thereof; provided, however, that notwithstanding
the foregoing, no Default or Event of Default shall exist under this
Section 9.1(f) with respect to a default which is being contested in
good faith by appropriate proceedings; or
(g) Judgments. The Fund shall fail within 30 days of the date
due and payable to pay, bond or otherwise discharge any judgment,
settlement or order for the payment of money (to the extent not paid or
fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) which judgment, settlement or
order, when aggregated with all other such judgments, settlements or
orders due and unpaid at such time, exceeds $20 million, and which is
not stayed on appeal (or for which no motion for stay is pending) or is
not otherwise being executed.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Bank or cured to
the satisfaction of the Bank, the Bank shall by written notice to the Borrower
and the Fund take any of the following actions:
(a) Termination of the Commitment. Declare the Commitment
terminated whereupon the Commitment shall be immediately
terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Borrower
and the Fund to the Bank hereunder to be due whereupon the same shall
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower and the Fund.
(c) Delivery of Deposited Notices. After at least 2 Business
Days' prior written notice thereof by the Bank to
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the Fund, deliver the Deposited Notices to the Limited Partners.
(d) Cash Collateral. Direct the Borrower or the Fund to pay
(and the Borrower and the Fund each agree that upon receipt of such
notice, or upon the occurrence of an Event of Default under Section
9.1(e), they will immediately pay) to the Bank additional cash, to be
held by the Bank in a cash collateral account as additional security
for the LOC Obligations in respect of subsequent drawings under all
then outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(e) shall occur, then the Commitment shall automatically terminate
and all Loans, all accrued interest in respect thereof, all accrued and unpaid
fees and other indebtedness or obligations owing to the Bank hereunder
automatically shall immediately become due and payable without the giving of any
notice or other action by the Bank. In the event any of the Borrower Obligations
are not paid when due at any stated or accelerated maturity, the Borrower agrees
to pay, in addition to the principal and interest, all costs of collection,
including reasonable attorneys' fees. The rights of the Bank under this Section
9.2 are independent and in addition to such rights as the Bank may have at law
or in equity or otherwise based on the failure of the Fund to perform any
covenant, agreement or undertaking made by it in this Credit Agreement.
9.3 Cash Collateral Account.
To the extent that payments made by the Fund (including capital
contributions made by the Partners) pursuant to the exercise of rights by the
Bank under Section 4 and Sections 9.2(c) and (d) exceed the amounts necessary to
satisfy the obligations of the Fund to make payment in full of the Borrower
Obligations, such amounts shall be held by the Bank in a cash collateral account
subject to the sole dominion and control of the Bank (the "Cash Collateral
Account") until this Credit Agreement is terminated in accordance with the terms
of Section 10.13(b). The Bank shall charge the Cash Collateral Account from time
to time for the payment when due of all amounts payable by the Fund hereunder.
Any balance remaining in the Cash Collateral Account at the time that this
Credit Agreement is terminated in accordance with the terms of Section 10.13(b)
promptly shall be turned over by the Bank to the Fund in such manner as the Fund
at the time shall specify to the Bank. At the request of the Fund, amounts on
deposit in the Cash Collateral Account shall be invested by the Bank in Cash
Equivalents. Any income earned on such Cash Equivalents will be for the account
of the Fund and shall be distributed not less than quarterly by the Bank to the
Fund. To the extent that any loss is incurred in respect of such investments by
the Bank on behalf of the Fund, the Fund not less than quarterly will deliver to
the Bank, for deposit in the Cash Collateral Account, additional amounts
sufficient to offset such losses.
9.4 Allocation of Fund Payments.
All amounts collected or received by the Bank from the Fund or any
Partner pursuant to or in connection with this Credit Agreement and the
Deposited Notices shall be applied by the Bank solely to the payment of the
obligations of the Fund under Section 4.1.
9.5 Receipt of Funds Pursuant to the Deposited Notices.
The Bank agrees that, promptly after receipt by the Bank of any capital
contribution by any Limited Partner pursuant to the exercise of the Bank's
rights under Section 4.1 and Section 9.2(c), the Bank shall notify the Fund of
the amount of such capital contribution and the identity of the Limited Partner
making such capital contribution.
SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address set forth below, or at such other address as
such party may specify by written notice to the other parties hereto:
if to the Borrower:
▇▇▇▇▇▇ American Corp.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Vestar Capital Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Vestar Capital Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Fund:
Vestar Capital Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Vestar Capital Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Bank:
Bank of America, N. A.
Independence Center, 15th Floor
NC1-001-15-04
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Services--▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Bank of America Corporate Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10.2 Right of Set-Off; Adjustments.
Upon the occurrence and during the continuance of any Event of Default
under Section 9.1(a), the Bank (and each of its Affiliates) is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Bank (or any of its Affiliates) to or for the credit or the account of
the Borrower or the Fund against any and all of the obligations of such Person
now or hereafter existing under this Credit Agreement or otherwise, irrespective
of whether the Bank shall have made any demand under hereunder or thereunder and
although such obligations may be unmatured. The Bank agrees promptly to notify
the Borrower or the Fund, as applicable, after any such set-off and application
made by the Bank; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the Bank
under this Section 10.2 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that the Bank may have.
10.3 Benefit of Agreement.
This Credit Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto; provided that (i) neither the Borrower nor the Fund may assign or
transfer any of its interests and obligations without prior written consent of
the Bank and (ii) the Bank may not assign or transfer any of its interests and
obligations hereunder without prior written consent of the Borrower and the Fund
except during the continuance of an Event of Default.
10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Bank in exercising any right,
power or privilege hereunder and no course of dealing between the Bank and the
Borrower or the Fund shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the Bank would
otherwise have. No notice to or demand on the Borrower or the Fund in any case
shall entitle the Borrower or the Fund to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Bank to any other or further action in any circumstances without notice or
demand.
10.5 Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of the
Bank in connection with the preparation, execution, delivery, administration,
modification, and amendment of this Credit Agreement and the other documents to
be delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Bank (including the cost of internal counsel) with
respect thereto and with respect to advising the Bank as to its rights and
responsibilities under this Credit Agreement. The Borrower further agrees to pay
on demand all costs and expenses of the Bank (including the reasonable fees and
expenses of counsel) in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of this Credit Agreement and the
other documents to be delivered hereunder.
(b) The Borrower agrees to indemnify and hold harmless the Bank and
each of its Affiliates and their respective officers, directors, employees,
agents, and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees and excluding taxes) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation, or proceeding or preparation of
defense in connection therewith) this Credit Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or expense
results from any Indemnified Party's gross negligence or willful misconduct. In
the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 10.5 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower or the Fund, their respective directors, shareholders or creditors or
an Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto. The Borrower and the Fund each agrees not to assert any claim
against the Bank, any of its Affiliates, or any of their respective directors,
officers, employees, attorneys, agents, and advisers, on any theory of
liability, for special, indirect, consequential, or punitive damages arising out
of or otherwise relating to this Credit Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower or the Fund hereunder, the agreements and obligations of the Borrower
and the Fund contained in this Section 10.5 shall survive the repayment of the
Loans, LOC Obligations and other obligations under this Credit Agreement and the
termination of the Commitment hereunder.
10.6 Amendments, Waivers and Consents.
Except as otherwise provided in Section 3.3(b)(ii), none of the
provisions of this Credit Agreement may be amended, changed, waived, discharged
or terminated unless such amendment, change, waiver, discharge or termination is
in writing and executed by the Bank, the Borrower and the Fund.
10.7 Counterparts.
This Credit Agreement may be executed in counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Credit Agreement to produce or account for more than one such
counterpart for each of the parties hereto. Delivery by facsimile by any of the
parties hereto of an executed counterpart of this Credit Agreement shall be as
effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
10.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in
Section 2.2(h), 3.11, 3.12 or 10.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
this Credit Agreement and the termination of the Commitment hereunder, and all
representations and warranties made by the Borrower or the Fund herein shall
survive delivery of this Credit Agreement and the making of the Loans hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Credit Agreement may be
brought in the courts of the State of New York in New York County, or
of the United States for the Southern District of New York, and, by
execution and delivery of this Credit Agreement, each of the Borrower,
the Fund and the Bank hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Each of the Borrower, the
Fund and the Bank further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices
pursuant to Section 10.1, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of the
Bank to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against the Borrower
or the Fund in any other jurisdiction.
(b) Each of the Borrower, the Fund and the Bank hereby
irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Credit Agreement brought in
the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE BANK, THE
BORROWER AND THE FUND HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
10.11 Severability.
If any provision of any of this Credit Agreement is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement represents the entire agreement of the parties
hereto and thereto, and supersedes all prior agreements and understandings, oral
or written, if any, including any commitment letters or correspondence relating
to this Credit Agreement or the transactions contemplated herein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time
on or after the Closing Date when it shall have been executed by the
Borrower, the Fund and the Bank, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Borrower, the
Fund and the Bank and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until all of
the Borrower Obligations then outstanding have been irrevocably
satisfied in full and the Commitment hereunder shall have expired or
been terminated.
10.14 Limitation on Recourse to the Fund.
The Bank agrees that its rights in respect of any claim or liability
under this Credit Agreement asserted by it against the Fund shall be limited to
satisfaction out of, and enforcement against, the assets of the Fund.
Notwithstanding anything to the contrary contained herein or in any other
document, certificate or instrument executed by the Fund pursuant hereto, the
Bank acknowledges and agrees that no officer, employee, partner, servant,
controlling Person, manager, agent, authorized representative or Affiliate of
the Fund (collectively, the "Non-Recourse Persons") shall have any liability to
the Bank (such liability, including such as may arise by operation of law, being
hereby expressly waived) for the payment of any sums now or hereafter owing by
the Fund under this Credit Agreement or for the performance of any of the
obligations of the Fund contained herein or shall otherwise be liable or
responsible with respect thereto. If any Event of Default shall occur or if any
claim of the Bank against the Fund or alleged liability to the Bank of the Fund
shall be asserted under this Credit Agreement, the Bank agrees that it shall not
have the right to proceed directly or indirectly against the Non-Recourse
Persons or against their respective properties and assets for the satisfaction
of any such claim or liability or for any deficiency judgment in respect of any
such claim or liability. Notwithstanding any of the foregoing, it is expressly
understood and agreed, however, that nothing contained in this Section 10.14
shall in any manner or any way constitute or be deemed (i) to excuse any
obligations of any Partner to make additional capital contributions to the Fund
pursuant to the terms of the Partnership Agreement, (ii) to impair the
enforceability of any of the rights arising from this Credit Agreement or (iii)
to restrict the remedies available to the Bank to realize upon the assets of the
Fund. The foregoing acknowledgments, agreements and waivers shall survive the
termination of this Credit Agreement and shall be enforceable by any
Non-Recourse Person.
10.15 Confidentiality.
The Bank agrees to keep confidential any non-public information
furnished or made available to it by the Borrower or the Fund pursuant to this
Credit Agreement; provided that nothing herein shall prevent the Bank from
disclosing such information (a) to any of its Affiliate, (b) to any other Person
if reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority having jurisdiction over the Bank, (f) that is or
becomes available to the public or that is or becomes available to the Bank
other than as a result of a disclosure by the Bank prohibited by this Credit
Agreement, (g) in connection with any litigation to which the Bank or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Credit Agreement and (i) subject to provisions
substantially similar to those contained in this Section 10.15, to any actual or
proposed participant or assignee.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ▇▇▇▇▇▇ American Corp.,
--------
a Delaware corporation
By:
Name:
Title:
FUND: Vestar Capital Partners III, L.P.,
----
a Delaware limited partnership
By: Vestar Associates III, L.P.,
its General Partner
By: Vestar Associates corp.III,
its General Partner
By:
Name:
Title:
BANK: BANK OF AMERICA, N. A.
----
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Exhibit A
[Letterhead of Vestar Associates III, L.P.]
[Name and address of partner]
Re: Vestar Capital Partners III, L.P.-- ▇▇▇▇▇▇ American Corp. $7.5 Million Line
of Credit
Dear ___________:
Pursuant to Section 3.1(a) of the Agreement of Limited Partnership of
Vestar Capital Partners III, L.P., Vestar Associates III, L.P. (the "General
Partner") is calling for payment of the Capital Contribution to be made in
connection with Vestar/▇▇▇▇▇▇ American Corp. Your pro rata share of the
$7,500,000 Capital Contribution for your $__________ commitment is $__________.
Kindly pay either by certified or cashier's check or by wire transfer of
immediately available funds to the account set forth below (or to such other
account as Bank of America, N.A. shall have notified you in writing) no later
than the tenth (10th) business day following the date of this letter.
Via Check: or Via Bank Wire:
--------- -----------------
Payable to: Bank of America, N.A. Payable to:Bank of America, N.A.
Send to: Bank of America, N.A.. Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of America Corporate Center ABA Routing No.: ▇▇▇-▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Account No.: 1366212250600
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ For Credit to:Corporate Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Reference: Vestar Capital
Account No. 1366212250600 Partners III, L.P.
For Credit to: Corporate Services Amount: $______________
Reference: Vestar Capital
Partners III, L.P.
Amount: $______________
If you have any questions, please feel free to call me at (▇▇▇) ▇▇▇-▇▇▇▇.
Very truly yours,
Vestar Associates III, L.P.,
General Partner of Vestar Capital Partners III, L.P.
By: Vestar Associates Corporation III,
its General Partner
By: __________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Exhibit 2.1(b)(i)
FORM OF NOTICE OF BORROWING
[Date]
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ American Corp. (the "Borrower"), refers to the
Amended and Restated Credit Agreement dated as of February 17, 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, Vestar Capital Partners III, L.P. (the "Fund") and Bank of
America, N. A. (the "Bank"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice pursuant to Section 2.1 of the
Credit Agreement that it requests a Loan under the Credit Agreement, and in
connection therewith sets forth below the terms on which such Loan is requested
to be made:
(A) Date of Borrowing (which is a Business Day) _______________________
(B) Principal Amount of Borrowing _______________________
(C) Interest rate basis _______________________
(D) Interest Period and the last day thereof _______________________
In accordance with the requirements of Section 5.2, (i) the Borrower
(with respect to itself only) and the Fund hereby reaffirm the representations
and warranties set forth in the Credit Agreement as provided in subsection (b)
of such Section and (ii) the Borrower (with respect to itself only) and the Fund
confirm that the matters referenced in subsections (c), (d) and (e) of such
Section are true and correct.
This Notice of Borrowing may be executed in counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument.
▇▇▇▇▇▇ American Corp.
By:
Name:
Title:
Acknowledged and consented to this __ day of ________, ____:
Vestar Capital Partners III, L.P.,
a Delaware limited partnership
By: Vestar Associates III, L.P.,
its General Partner
By: Vestar Associates corporation III,
its General Partner
By:
Name:
Title:
Exhibit 3.2
FORM OF NOTICE OF EXTENSION/CONVERSION
[Date]
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ American Corp. (the "Borrower"), refers to the
Amended and Restated Credit Agreement dated as of February 17, 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, Vestar Capital Partners III, L.P. (the "Fund") and Bank of
America, N. A. (the "Bank"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension or conversion of a Loan
outstanding under the Credit Agreement, and in connection therewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period) _______________________
(C) Principal Amount of Extension or Conversion _______________________
(D) Interest rate basis _______________________
(E) Interest Period and the last day thereof _______________________
In accordance with the requirements of Section 5.2, (i) the Borrower
(with respect to itself only) and the Fund hereby reaffirm the representations
and warranties set forth in the Credit Agreement as provided in subsection (b)
of such Section and (ii) the Borrower (with respect to itself only) and the Fund
confirm that the matters referenced in subsections (c), (d) and (e) of such
Section are true and correct.
This Notice of Extension/Conversion may be executed in counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument.
▇▇▇▇▇▇ American Corp.
By:
Name:
Title:
Acknowledged and consented to this __ day of ________, ____:
Vestar Capital Partners III, L.P.,
a Delaware limited partnership
By: Vestar Associates III, L.P.,
its General Partner
By: Vestar Associates corporation III,
its General Partner
By:
Name:
Title:
34
Exhibit 5.1(d)
FORM OF OFFICER'S CERTIFICATE
[Attached.]