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Exhibit 4.1
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CREDIT AGREEMENT
by and among
THE WACKENHUT CORPORATION,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
and
SCOTIABANC INC.,
as Syndication Agent and as Lender
and
FIRST UNION NATIONAL BANK,
As Documentation Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
November 13, 2000
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BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Terms
1.1. Definitions.........................................................................................2
1.2. Rules of Interpretation............................................................................26
1.3. Accounting for Acquisitions........................................................................27
ARTICLE II
The Credit Facilities
2.1. Revolving Loans....................................................................................29
2.2. Use of Proceeds....................................................................................31
2.3. Notes..............................................................................................31
2.4. Swing Line.........................................................................................32
ARTICLE III
Letters of Credit
3.1. Letters of Credit..................................................................................34
3.2. Reimbursement and Participations...................................................................34
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options..............................................................................38
4.2. Conversions and Elections of Subsequent Interest Periods...........................................38
4.3. Payment of Interest................................................................................39
4.4. Prepayments of Eurodollar Rate Loans...............................................................39
4.5. Manner of Payment..................................................................................39
4.6. Fees...............................................................................................40
4.7. Pro Rata Payments..................................................................................41
4.8. Computation of Rates and Fees......................................................................41
4.9. Deficiency Advances; Failure to Purchase Participations............................................41
4.10. Intraday Funding...................................................................................41
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ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return..................................................................43
5.2. Limitation on Types of Loans.......................................................................44
5.3. Illegality.........................................................................................45
5.4. Treatment of Affected Loans........................................................................45
5.5. Compensation.......................................................................................45
5.6. Taxes..............................................................................................46
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance......................................................................48
6.2. Conditions of Revolving Loans and Letter of Credit.................................................50
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority.........................................................................52
7.2. Loan Documents.....................................................................................52
7.3. Solvency...........................................................................................53
7.4. Subsidiaries and Stockholders......................................................................53
7.5. Ownership Interests................................................................................53
7.6. Financial Condition................................................................................53
7.7. Title to Properties................................................................................54
7.8. Taxes..............................................................................................54
7.9. Other Agreements...................................................................................54
7.10. Litigation.........................................................................................54
7.11. Margin Stock.......................................................................................55
7.12. Regulated Company..................................................................................55
7.13. Patents, Etc.......................................................................................55
7.14. No Untrue Statement................................................................................55
7.15. No Consents, Etc...................................................................................55
7.16. Employee Benefit Plans.............................................................................56
7.17. No Default.........................................................................................57
7.18. Environmental Laws.................................................................................57
7.19. Employment Matters.................................................................................57
7.20. RICO...............................................................................................58
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc.............................................................................59
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8.2. Maintain Properties................................................................................60
8.3. Existence, Qualification, Etc......................................................................60
8.4. Regulations and Taxes..............................................................................61
8.5. Insurance..........................................................................................61
8.6. True Books.........................................................................................61
8.7. Right of Inspection................................................................................61
8.8. Observe all Laws...................................................................................62
8.9. Governmental Licenses..............................................................................62
8.10. Covenants Extending to Other Persons...............................................................62
8.11. Officer's Knowledge of Default.....................................................................62
8.12. Suits or Other Proceedings.........................................................................62
8.13. Notice of Environmental Complaint or Condition.....................................................62
8.14. Environmental Compliance...........................................................................63
8.15. Further Assurances.................................................................................63
8.16. Employee Benefit Plans.............................................................................63
8.17. Nature of Business.................................................................................64
8.18. New Subsidiaries...................................................................................64
ARTICLE IX
Negative Covenants
9.1. Financial Covenants................................................................................66
9.2. Acquisitions.......................................................................................66
9.3. Negative Pledge Clauses............................................................................67
9.4. Limitation on Liens................................................................................67
9.5. Indebtedness.......................................................................................68
9.6. Mergers, Consolidations and Sales of Assets........................................................69
9.7. Restricted Payments: Joint Venture Investments.....................................................71
9.8. Limitation on Sale and Leasebacks..................................................................72
9.9. Guaranties.........................................................................................72
9.10. Compliance with ERISA, the Code and Foreign Benefit Laws...........................................72
9.11. Fiscal Year........................................................................................73
9.12. Rate Hedging Obligations...........................................................................73
9.13. Advances to WCC....................................................................................73
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default..................................................................................74
10.2. Agent to Act.......................................................................................77
10.3. Cumulative Rights..................................................................................77
10.4. No Waiver..........................................................................................77
10.5. Allocation of Proceeds.............................................................................77
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ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities................................................................79
11.2. Reliance by Agent..................................................................................79
11.3. Defaults...........................................................................................80
11.4. Rights as Lender...................................................................................80
11.5. Indemnification....................................................................................80
11.6. Non-Reliance on Agent and Other Lenders............................................................81
11.7. Resignation of Agent...............................................................................81
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations.....................................................................82
12.2. Notices............................................................................................83
12.3. Right of Set-off; Adjustments......................................................................85
12.4. Survival...........................................................................................85
12.5. Expenses...........................................................................................86
12.6. Amendments and Waivers.............................................................................86
12.7. Counterparts; Facsimile Signatures.................................................................86
12.8. Termination........................................................................................87
12.9. Indemnification; Limitation of Liability...........................................................87
12.10. Severability.......................................................................................88
12.11. Entire Agreement...................................................................................88
12.12. Agreement Controls.................................................................................88
12.13. Usury Savings Clause...............................................................................88
12.14. Governing Law; Waiver of Jury Trial................................................................89
EXHIBIT A Applicable Commitment Percentages........................................................A-1
EXHIBIT B Form of Assignment and Acceptance........................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative.......................C-1
EXHIBIT D-1 Form of Borrowing Notice.................................................................D-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.............................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice...................................................E-1
EXHIBIT F-1 Form of Revolving Note.................................................................F-1-1
EXHIBIT F-2 Form of Swing Line Note................................................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel....................................................G-1
EXHIBIT H Compliance Certificate...................................................................H-1
EXHIBIT I Form of Facility Guaranty................................................................I-1
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Schedule 1.1 Existing Letters of Credit...............................................................S-1
Schedule 7.4 Subsidiaries and Investments in Other Persons............................................S-2
Schedule 7.6 Indebtedness.............................................................................S-3
Schedule 7.7 Liens....................................................................................S-4
Schedule 7.8 Tax Matters..............................................................................S-5
Schedule 7.10 Litigation...............................................................................S-6
Schedule 7.18 Environmental Matters ...................................................................S-7
Schedule 7.19 Employment Matters.......................................................................S-8
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of November 13, 2000 (the "Agreement"),
is made by and among THE WACKENHUT CORPORATION, a Florida corporation having its
principal place of business in Palm Beach Gardens, Florida (the "Borrower"),
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as a Lender ("Bank of
America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to SECTION 12.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), and
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as agent for the Lenders
(in such capacity, and together with any successor agent appointed in accordance
with the terms of SECTION 11.7, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $112,500,000, the proceeds of
which are to be used to repay existing indebtedness and for general corporate
purposes and which shall include a letter of credit facility in the amount of
the revolving credit facility for the issuance of standby letters of credit and
a swing line facility of up to $20,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit, letter
of credit and swing line facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
DEFINITIONS AND TERMS
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Accounting Adjustments" means the adjustments to certain
financial computations described in SECTION 1.4.
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines
of business conducted by such Person.
"Acquisition Adjustments" means the adjustments to certain
financial terms and computations more particularly described in SECTION
1.3.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of the Borrower or 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, with respect to the Revolving Credit Facility and
the Letter of Credit Facility, the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
EXHIBIT A; PROVIDED that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with SECTION 12.1.
"Applicable Facility Fee" means that percent per annum, based
upon the Consolidated Leverage Ratio for the Four-Quarter Period most
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recently ended, set forth as the Applicable Facility Fee in the Pricing
Grid and subject to further adjustment as therein provided.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means that percent per annum, which shall
be based upon the Consolidated Leverage Ratio for the Four-Quarter
Period most recently ended, set forth as the Applicable Margin for
Eurodollar Rate Loans and Swing Line Loans in the Pricing Grid and
subject to further adjustment as therein provided.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Asset Securitization Facility" means the asset backed,
commercial paper funded receivables securitization facility among
Wackenhut Funding, the Borrower, as Servicer, and Bank of America as
Managing Agent, providing for the sale by Wackenhut Funding of
fractional undivided interests in trade receivables originated by the
Borrower and certain of its Subsidiaries; provided that at no time
shall the aggregate face amount of outstanding trade receivables of the
Borrower and its Subsidiaries sold or otherwise transferred (in whole
or in part) through such program exceed $75,000,000.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to SECTION 12.1.
"Authorized Representative" means any of the Chairman,
President, Senior Vice Presidents or any Vice President of the Borrower
or, with respect to financial matters, the Chief Financial Officer or
Treasurer of the Borrower, or any other Person expressly designated by
the Board of Directors of the Borrower (or the appropriate committee
thereof) as an Authorized Representative of the Borrower, as set forth
from time to time in a certificate in the form of EXHIBIT C.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of the higher of (i) the Federal Funds Rate for such day plus
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one-half of one percent (0.5%) and (ii) 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 a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3750156489 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capitalized Lease" means any lease the obligation for Lease
Payments with respect to which is required to be capitalized on a
consolidated balance sheet of the lessee and its subsidiaries in
accordance with GAAP.
"Capitalized Lease Payments" of any Person and as of the date
of any determination thereof means the amount at which the aggregate
Lease Payments due and to become due under all Capitalized Leases under
which such Person is lessee would be reflected as a liability on a
consolidated balance sheet of such Person.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than members
of the Wackenhut Family Group either (A) becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of Voting Securities of the
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Borrower (or securities convertible into or exchangeable for
such Voting Securities) representing 33-1/3% or more of the
combined voting power of all Voting Securities of the Borrower
(on a fully diluted basis) or (B) otherwise has the ability,
directly or indirectly, to elect a majority of the board of
directors of the Borrower;
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower.
"Chile" means Wackenhut Chile S.A., a SOCIEDAD ANONIMA
organized under the laws of the Republic of Chile.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in SECTION 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in SECTION 7.6(A).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Charges, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis, subject to Acquisition Adjustments and Accounting Adjustments.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for any Four-Quarter Period ending
on the date of computation thereof, the ratio of (i) Consolidated Net
Income Available for Fixed Charges, subject to Accounting Adjustments,
to (ii) Consolidated Fixed Charges for such period, subject to
Accounting Adjustments.
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"Consolidated Fixed Charges" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the sum of (i) all Consolidated Lease
Payments (other than Capitalized Lease Payments) payable during such
period, and (ii) all Consolidated Interest Charges on all Indebtedness
(including the interest component of Lease Payments on Capitalized
Leases and the discount factor or other economic equivalent of interest
under the Asset Securitization Facility) payable during said period by
the Borrower and its Subsidiaries.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, all determined on a
consolidated basis subject to Accounting Adjustments.
"Consolidated Interest Charges" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, including without limitation the discount
factor or other economic equivalent of interest arising under the Asset
Securitization Facility, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligation)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the portion of any
payments made in connection with Capitalized Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated Lease Payments" means as of the date of
determination the amount of all Lease Payments of the Borrower and its
Subsidiaries for the period of determination, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Assets" means as of the date of any
determination thereof, the amount of Consolidated Total Assets after
deducting all Restricted Investments and all items which in accordance
with GAAP would be included on the liability side of a consolidated
balance sheet, but excluding as assets deferred income taxes, deferred
investment tax credits, capital stock of any class, surplus and
Consolidated Indebtedness.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) investment income of Titania and interest income,
and (ii) dividends and distributions made in the ordinary course of
their businesses by Persons in which investment is permitted pursuant
to this Agreement and not related to an extraordinary event), less all
operating and non-operating expenses of the Borrower and its
Subsidiaries including taxes on income, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; but excluding (for all purposes other than compliance with
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SECTION 9.1(A) hereof) as income: (i) net gains on the sale, conversion
or other disposition of capital assets, (ii) net gains on the
acquisition, retirement, sale or other disposition of capital stock and
other securities of the Borrower or its Subsidiaries, (iii) net gains
on the collection of proceeds of life insurance policies, (iv) any
write-up of any asset, and (v) any other net gain or credit of an
extraordinary nature as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis, subject to
Acquisition Adjustments.
"Consolidated Net Income Available for Fixed Charges" for any
period means the sum of (i) Consolidated Net Income during such period
PLUS (to the extent deducted in determining Consolidated Net Income),
(ii) all provisions for any Federal, state or other income taxes made
by the Borrower and its Subsidiaries during such period, and (iii)
Consolidated Fixed Charges of the Borrower and its Subsidiaries during
such period; all as determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis, subject to Acquisition
Adjustments.
"Consolidated Net Worth" means at any time as of which the
amount thereof is to be determined, the sum of the following with
respect to the Borrower and its Subsidiaries (on a consolidated basis
and excluding intercompany items in accordance with GAAP): (i) the
amount of issued and outstanding share capital, PLUS (ii) the amount of
additional paid-in capital and retained income (or, in the case of a
deficit, minus the amount of such deficit), MINUS (iii) the sum of the
following (without duplication of deductions in respect of items
already deducted in arriving at surplus and retained earnings): (A) all
reserves, except legal reserves and other contingency reserves (i.e.,
reserves not allocated to specific purposes and not deducted from
assets), which are properly treated as appropriations of surplus or
retained earnings; (B) any treasury stock, capital stock subscribed and
unissued and other contra-equity accounts; and (C) the cumulative
amount of any net write-up of asset values after the date of the audit
immediately preceding the Closing Date.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Capitalization" means, as of any date on
which the amount thereof is to be determined, the sum of Consolidated
Indebtedness plus Consolidated Net Worth.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
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"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the SUM of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
of the last reported bid and ask quotations or the last prices reported
thereon, and (II) with respect to any other shares of capital stock, as
determined by the Board of Directors of the Borrower and, if requested
by the Agent, determined to be a reasonable valuation by the
independent public accountants referred to in SECTION 8.1(A), (B) the
capital stock of any Subsidiary shall be valued as determined by the
Board of Directors of such Subsidiary and, if requested by the Agent,
determined to be a reasonable valuation by the independent public
accountants referred to in SECTION 8.1(A), and (C) with respect to any
Acquisition accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of Acquisition shall
include both the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion.
"Credit Parties" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
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payable in respect of (x) Obligations or (y) (except as otherwise
expressly provided therein) the obligations of any Credit Party other
than the Borrower under any of the other Loan Documents, a rate of
interest per annum which shall be two percent (2%) above the Base Rate
and (iii) in any case, the maximum rate permitted by applicable law, if
lower.
"Deficiency Advance" has the meaning given such term in
SECTION 4.9.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with SECTION 12.1, the Borrower,
such approval not to be unreasonably withheld (provided that the
incurrence by the Borrower of additional costs pursuant to SECTION 5.6
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Borrower and such approval
to be deemed given by the Borrower (in the absence of notice to the
contrary, effective upon receipt) within two Business Days after notice
of such proposed assignment has been provided by the assigning Lender
to the Borrower; PROVIDED, HOWEVER, that neither the Borrower nor an
affiliate of the Borrower shall qualify as an Eligible Assignee.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time been maintained for the employees of
the Borrower, any current or former ERISA Affiliate, or any Subsidiary
and (ii) any plan, arrangement, understanding or scheme maintained by
the Borrower or any Subsidiary that provides retirement, deferred
compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law or regulated by
any Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
9
16
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = INTERBANK OFFERED RATE + Applicable
Rate -------------------------- Margin
1- Reserve Requirement
"Event of Default" means any of the occurrences set forth as
such in SECTION 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Agreement" means the Amended and Restated Revolving
Credit and Reimbursement Agreement dated December 30, 1997, as amended,
among the Borrower, Bank of America, N.A., as Agent, and the lenders
party thereto;
"Existing LCs" means the letters of credit issued by Bank of
America prior to the Closing Date pursuant to the Existing Agreement
and remaining outstanding as of the Closing Date, all as more
particularly described on SCHEDULE 1.1 attached hereto.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings and Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 10.1(B), (b) all Swap Agreements shall have
been terminated, expired or cash collateralized, (c) all Revolving
Credit Commitments and Letter of Credit Commitments shall have
terminated or expired and (d) the Borrower shall have fully, finally
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17
and irrevocably paid and satisfied in full all Obligations (other than
Obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"FASB 133" means Statement of Financial Accounting Standards
No. 133.
"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 Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Quarter" means the 12-13 week period of the Borrower
and its Subsidiaries for which the Borrower files an SEC Form 10-Q for
the first such three periods of each Fiscal Year and an SEC Form 10-K
for the last period of its Fiscal Year or if the Borrower is no longer
a reporting company under the Securities Exchange Act of 1934, as
amended, calendar quarter periods ending March 31, June 30, September
30 and December 31 of each calendar year.
"Fiscal Year" means the 52-53 week period of the Borrower and
its Subsidiaries for which the Borrower files an SEC Form 10-K or, if
the Borrower is no longer a reporting company under the Securities
Exchange Act of 1934, as amended, the twelve month period beginning on
January 1 and ending on December 31 of each calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
Fiscal Quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
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18
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or
in effect, guaranteeing any Indebtedness, dividend or other obligation,
of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person:
(i) to purchase such Indebtedness or obligation or any property or
assets constituting security therefor, (ii) to advance or supply funds
(a) for the purchase or payment of such Indebtedness or obligation, (b)
to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or
payment of such Indebtedness or obligation, or (iii) to lease property
or to purchase Securities or other property or services primarily for
the purpose of assuring the owner of such Indebtedness or obligation of
the ability of the primary obligor to make payment of the Indebtedness
of obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in
respect thereof; PROVIDED, HOWEVER, that guarantees by the Borrower of
performance of obligations of Subsidiaries under service contracts
shall not be deemed Indebtedness. For the purposes of all computations
made under this Agreement, a Guaranty in respect of any Indebtedness
for Borrowed Money shall be deemed to be Indebtedness equal to the
principal amount of such Indebtedness for Borrowed Money which has been
guaranteed, and a Guaranty in respect of any other obligation or
liability or any dividend shall be deemed to be Indebtedness equal to
the maximum aggregate amount of such obligation, liability or dividend.
"Guarantors" means, at any date, the Wholly-owned
Subsidiaries who are required to be parties to a Guaranty at such date.
"Guaranty Agreement" means each Guaranty Agreement between one
or more Guarantors and the Agent for the benefit of the Agent and the
Lenders, delivered as of the Closing Date and substantially in the form
of EXHIBIT I and otherwise pursuant to SECTION 8.18, as the same may be
amended, modified or supplemented.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Incremental Debt" has the meaning given such term in SECTION
1.3.
"Indebtedness" of any Person means and include all obligations
of such Person which in accordance with GAAP shall be classified upon a
balance sheet of such Person as liabilities of such Person, and in any
event shall include all (i) obligations of such Person for borrowed
money or which has been incurred in connection with the acquisition of
property or assets, (ii) obligations secured by any Lien upon property
or assets owned by such Person, even though such Person has not assumed
or become liable for the payment of such obligations, (iii) obligations
created or arising under any conditional sale or other title retention
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19
agreement with respect to property acquired by such Person,
notwithstanding the fact that the rights and remedies of the seller,
lender or lessor under such agreement in the event of default are
limited to repossession or sale of property, (iv) Capitalized Lease
Payments under any Capitalized Lease, (v) Guaranties of Indebtedness of
others, (vi) the Reimbursement Obligations, and (vii) outstanding
amounts received by the Borrower or any Subsidiary in exchange for the
transfer of interests in trade receivables under the Asset
Securitization Facility in excess of the amounts repaid to the
purchasers in respect of such purchase price from collections on such
trade receivables; PROVIDED, HOWEVER, that guarantees by the Borrower
of performance of obligations of Subsidiaries under service contracts
shall not be deemed Indebtedness.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, (i) all Indebtedness of such Person for
borrowed money or which has been incurred in connection with the
acquisition of assets, including all payments in respect thereof that
are required to be made within one year from the date of any
determination of Indebtedness, whether or not the obligation to make
such payments shall constitute a current liability of the obligor under
GAAP, (ii) all Capitalized Lease Payments of such Person, (iii) all
Guaranties by such Person of Indebtedness of others, (iv) with respect
to Indebtedness of the Borrower in respect of Letters of Credit, the
product of (x) the aggregate amounts available for drawing under all
outstanding Letters of Credit and (y).50; and (v) to the extent not
otherwise included in clauses (i) through (iv) above, outstanding
amounts (together with interest paid thereon) received by the Borrower
or any Subsidiary in exchange for the transfer of interests in trade
receivables under the Asset Securitization Facility.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto:
(a) the rate per annum equal to the rate determined
by the Agent to be the offered rate that appears on the page
of the Telerate screen that displays an average British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period,
or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per
annum equal to the rate determined by the Agent to be the
offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of
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20
such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such
Interest Period, or
(c) in the event the rates referenced in the
preceding subsections (a) and (b) are not available, the rate
per annum determined by the Agent as the rate of interest
(rounded upward to the next 1/100th of 1%) at which deposits
in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest
Rate would be offered by Bank of America's London Branch to
major banks in the offshore Dollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period.
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one week or one, two, three or six months thereafter as notified
to the Agent by the Authorized Representative in accordance with the
terms hereof; PROVIDED that,
(i) if an Interest Period (other than an Interest
Period of one week) for a Eurodollar Rate Loan would end on a
day which is not a Business Day, such Interest Period shall be
extended to the next Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding
calendar month, in which case such Interest Period shall end
on the next preceding Business Day); and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
"Investments" means all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or other
obligations or Security or by loan, advance, capital contribution or
otherwise; PROVIDED, HOWEVER, that "Investments" shall not mean or
include routine investments in property to be used or consumed in the
ordinary course of business or investments in accounts receivable or
notes receivable arising in the ordinary course of business.
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"Issuing Bank" means Bank of America and one other Lender
designated in writing to the Agent by the Borrower as issuers of
Letters of Credit under ARTICLE III.
"Joint Venture Investment" means any Investment in an amount
not to exceed $10,000,000 in any Fiscal Year by the Borrower with any
other Person or Persons which Investment is made in order to permit the
Borrower to make bids with respect to contracts for the providing of
services by the Borrower of the type provided by the Borrower and its
Subsidiaries as of the Closing Date.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Lease Payments" means and include as of the date of any
determination thereof, all fixed payments (including as such all
payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the Property) payable by the
Borrower or a Subsidiary, as lessee or sublessee under a lease of real
or personal property, but shall be exclusive of any amounts required to
be paid by the Borrower or a Subsidiary (whether or not designated as
rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges. Fixed rents under any so-called
"percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of
sales volume or gross revenues.
"Letter of Credit" means (a) a standby letter of credit issued
by the Issuing Bank pursuant to ARTICLE III hereof for the account of
the Borrower in favor of a Person advancing credit or securing an
obligation on behalf of the Borrower or Titania and (ii) the Existing
LCs.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
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22
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or Loans" means any of the Revolving Loans or the Swing
Line Loan.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the LC Account Agreement, the Applications and Agreements
for Letter of Credit, and all other instruments and documents
heretofore or hereafter executed or delivered to or in favor of any
Lender (including the Issuing Bank) or the Agent in connection with the
Loans made and transactions contemplated under this Agreement, as the
same may be amended, supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of any Credit Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof.
"Minority Interests" means any shares of stock of any class of
a Subsidiary (other than directors' qualifying shares as required by
law) that are not owned by the Borrower and/or one or more of its
Subsidiaries. Minority Interests shall be valued by valuing Minority
Interests constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater, and by
valuing Minority Interests constituting common stock at the book value
of capital and surplus applicable thereto adjusted, if necessary, to
reflect any changes from the book value of such common stock required
by the foregoing method of valuing Minority Interests in preferred
stock.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Net Proceeds" from any public or private offering of any
security (including securities evidencing Indebtedness) means cash
payments received by the Borrower or any Subsidiary therefrom as and
when received, net of all legal, accounting, banking and underwriting
fees and expenses, commissions, discounts and other issuance expenses
16
23
incurred in connection therewith and all taxes required to be paid or
accrued as a consequence of such issuance.
"Notes" means, collectively, the Swing Line Note and the
Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender (or any affiliate of any
Lender) which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders (including the Issuing Bank), the Agent or
BAS hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of America in respect of a
Swing Line Loan made by Bank of America in accordance with the terms
hereof.
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"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pricing Grid" means:
APPLICABLE MARGIN
------------------------------
EURODOLLAR SWING LINE APPLICABLE
TIER CONSOLIDATED LEVERAGE RATIO RATE LOAN LOAN FACILITY FEE
---- --------------------------- --------- ----------- --------------
I Less than 1.75 to 1.00 .90% 1.25% .35%
II Equal to or Greater than 1.75 to 1.00
but Less than 2.50 to 1.00 1.15% 1.00% .35%
III Equal to or Greater than 2.50 to 1.00
but Less than 3.25 to 1.00 1.35% .75% .40%
IV Equal to or Greater than 3.25 to 1.00 1.75% .25% .50%
The Applicable Margin and Applicable Facility Fee shall be established
at the end of each Fiscal Quarter of the Borrower (each, a
"Determination Date"). Any change in the Applicable Margin or
Applicable Facility Fee following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to SECTION 8.1(A)(II) and SECTION
8.1(B)(II), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the fifth Business Day
following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur. From the
Closing Date to the fifth Business Day following the date the
certificate referred to in the preceding sentence for the fiscal period
ended as at the first Determination Date is delivered or is required to
be delivered (whichever shall first occur), the Applicable Margin and
Applicable Commitment Fee shall be Tier III. Notwithstanding the
provisions of the two preceding sentences, if the Borrower shall fail
to deliver any such certificate within the time period required by
SECTION 8.1, then the Applicable Margin and Applicable Commitment Fee
shall be Tier IV from the date such certificate was due until the fifth
Business Day following the date the appropriate certificate is so
delivered.
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"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing. For purposes of any computation hereunder, each Rate
Hedging Obligation shall be valued at the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Rate Hedging Obligation, the
net obligations of the Borrower or any Subsidiary thereunder equal to
the termination value thereof as determined in accordance with its
provisions (if such Rate Hedging Obligation has been terminated) or the
▇▇▇▇ to market value thereof as determined on the basis of available
quotations from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
"Registrar" means, with respect to any Subsidiary Securities,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable official), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
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"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to SECTION 2.1(C)(III)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings; PROVIDED that, for the
purpose of this definition only, (A) if any Lender shall have failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (B) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such
Lender shall pay such deficiency amount to the Issuing Bank together
with interest thereon as provided in SECTION 4.9 and (C) if any Lender
shall have failed to pay to Bank of America on demand its Applicable
Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by Bank of America until such Lender shall pay such deficiency amount
to Bank of America together with interest thereon as provided in
SECTION 4.9.
"Reserve Requirement" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Reserve Requirement.
"Restricted Investments" means all Investments in any Person,
other than:
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(a) Investments by the Borrower and its Subsidiaries
in and to Subsidiaries, including any investment in a
corporation which, after giving effect to such investment,
will become a Subsidiary;
(b) Investments in (i) commercial paper maturing in
270 days or less from the date of issuance and which, at the
time of acquisition by the Borrower or any Subsidiary, is
accorded one of the two highest ratings by S&P or Moody's.;
(ii) Variable Rate Demand Notes of issuers whose commercial
paper, at the time of acquisition, is accorded one of the two
highest ratings by S&P or Moody's; or (iii) direct obligations
of any State of the United States of America or of any
political subdivision thereof located in the United States of
America and which, at the time of acquisition, is accorded one
of the two highest ratings by S&P or ▇▇▇▇▇'▇, maturing in
twelve months or less from the date of acquisition;
(c) Investments in direct obligations of the United
States of America, or investments in any Person, which
Investments are guaranteed by the full faith and credit of the
United States of America, in either case maturing in twelve
months or less from the date of acquisition thereof by the
Borrower or any Subsidiary;
(d) Investments in certificates of deposit maturing
within one year from the date of issuance thereof, issued by a
bank or trust company organized under the laws of the United
States or any state thereof, having capital, surplus and
undivided profits aggregating at least $100,000,000 and whose
long-term certificates of deposit are, at the time of
acquisition thereof by the Borrower or Subsidiary, rated A by
S&P or ▇▇▇▇▇'▇;
(e) loans or advances in the usual and ordinary
course of business to officers, directors and employees for
expenses (including moving expenses related to a transfer)
incidental to carrying on the business of the Borrower or any
Subsidiary; PROVIDED, HOWEVER that the Borrower may make up to
an aggregate at any one time outstanding of up to $300,000 of
such loans or advances which are not incidental to carrying on
the business of the Borrower or any Subsidiary; and
(f) receivables arising from the sale of goods and
services in the ordinary course of business of the Borrower
and its Subsidiaries;
(g) Joint Venture Investments; and
(h) provided, however, that with respect to
investments made by or on behalf of Titania, the following
shall not be Restricted Investments:
(1) Certificates of deposit, time deposits and
banker's acceptances maturing within one year
from the date of acquisition, issued by a bank
or trust company organized under the laws of the
United States or any state thereof, or any
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foreign bank whose branch is organized under the
laws of the United States or any state thereof,
having capital, surplus and undivided profits
aggregating at least $100,000,000 and whose
long-term certificates of deposit are, at the
time of acquisition, rated at least A by S&P or
▇▇▇▇▇'▇;
(2) Repurchase Agreements with any domestic bank
with debt rated "AA" or better by S&P or "Aa" by
▇▇▇▇▇'▇, or any foreign bank rated at least "AA"
by S&P and "Aa" by Moody's; or repurchase
agreements with such other Persons on such terms
as the Borrower and the Agent shall agree in
writing; provided the term of all such
repurchase agreements is for one year or less;
(3) Direct obligations of the United States of
America, or Investments in any Person, which
Investments are guaranteed by the full faith and
credit of the United States of America;
(4) Mortgage-backed securities issued by the United
States Government or an agency or
instrumentality thereof, having at the time of
acquisition, a credit rating of at least AA by a
nationally recognized rating service;
(5) Bonds, notes and other direct obligations (other
than those referred to in clause (b), above) of
any corporation domiciled in the United States
of America, of a State of the United States of
America, or of any sovereign or supranational
institution whose obligations are denominated in
United States dollars, at the time of
acquisition rated at least A by a nationally
recognized rating service. Obligations of
sovereign or supranational institutions at the
time of acquisition, shall be rated at least AA
by a nationally recognized rating service;
(6) Preferred stock obligations of any corporation
domiciled in the United States of America, whose
obligations at the time of acquisition are rated
at least A by a nationally recognized rating
service;
(7) Shares in mutual funds that invest solely in
investments of the types described in clause
b(i), clause (b)(iii), clause (3), clause (4),
clause (5) and/or clause (6) above and have
assets in excess of One Hundred Million Dollars
($100,000,000);
(8) Any Investments (other than the Investments set
forth in clause (b) and clause (1) through
clause (7) inclusive, above), provided that the
aggregate fair value for all such investments
shall not, at any time, exceed five percent (5%)
of the aggregate fair value of all Investments
set forth in clause (1) through clause (8)
inclusive, above. For the purposes of this
subsection (8) only, fair value shall mean the
greater of book value or fair market value.
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In valuing any investments for the purpose of applying the
limitations set forth in this Agreement, such investments, loans and
advances shall be taken at the original cost thereof, without allowance
for any subsequent write-offs or appreciation or depreciation therein,
but less any amount repaid or recovered on account of capital or
principal.
For purposes of this Agreement, at any time when a corporation
becomes a Subsidiary, all Investments of such corporation at such time
shall be deemed to have been made by such corporation, as a Subsidiary,
at such time.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in SECTION 2.3 substantially in the form of EXHIBIT
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Security" shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
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(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means November 12, 2003.
"Subordinated Indebtedness" means all unsecured Indebtedness
of the Borrower which shall contain or have applicable thereto
subordination provisions in form and substance acceptable to the Agent
and the Required Lenders.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries. Wackenhut Funding
shall not be deemed a Subsidiary.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to Borrower and such
Person and approved by the Required Lenders, which agreements create
Rate Hedging Obligations; PROVIDED, HOWEVER, that no such approval of
the Lenders shall be required to the extent such agreements are entered
into between the Borrower and any Lender or any affiliate of any
Lender.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 2.4.
"Swing Line Loans" mean loans made by Bank of America to the
Borrower pursuant to SECTION 2.4.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to Bank of America as
provided in SECTION 2.3 substantially in the form of EXHIBIT F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
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"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"Titania" means Titania Insurance Company of America, a
corporation organized under the laws of Vermont and a wholly-owned
Subsidiary of the Borrower.
"Total Letter of Credit Commitment" means an amount not to
exceed the Total Revolving Credit Commitment.
"Total Revolving Credit Commitment" means a principal amount
equal to $112,500,000, as reduced from time to time in accordance with
SECTION 2.1(E).
"TROL Leases" means all tax retention operating lease
agreements between WCC or any subsidiary of WCC, as Lessee, and First
Security Bank, N.A., as Lessor, as amended, supplemented or modified
from time to time.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other 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 if the right so to vote has been
suspended by the happening of such a contingency.
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"Wackenhut Family Group" means (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and other lineal descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the founder of the Borrower; (ii) the spouses and
lineal descendants of the persons named in clause (i); and (iii) the
estates or legal representatives of the persons named in clause (i).
"Wackenhut Funding" means Wackenhut Funding Corporation, a
Delaware corporation.
"WCC" means Wackenhut Corrections Corporation, a Florida
corporation and a Subsidiary of the Borrower as of the Closing Date.
"Wholly-owned" when used in connection with any Subsidiary
means a Domestic Subsidiary of which all of the issued and outstanding
shares of stock (except shares required as directors' qualifying
shares) and all Indebtedness for Money Borrowed shall be owned by the
Borrower and/or one or more of its Wholly-owned Subsidiaries.
1.2. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the Florida
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and VICE VERSA, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
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refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and such term
shall not limit a general statement to matters similar to those
specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
1.3. ACCOUNTING FOR ACQUISITIONS.
With respect to any Acquisition consummated on or after the Closing
Date and prior to the Facility Termination Date, the following shall apply:
(a) As to each Acquisition that is accounted for as a
"purchase," for each of the four Four-Quarter Periods ending next
following the date of such Acquisition, (i) Consolidated EBITDA and
Consolidated Net Income Available for Fixed Charges shall include the
results of operations of the Person or assets so acquired on a
historical pro forma basis as if such Acquisition had been consummated
as a "pooling of interests," and which amounts may include such
adjustments as are permitted under Regulation S-X of the Securities and
Exchange Commission and reasonably satisfactory to the Agent but (ii)
for purposes of determining compliance with the provisions of SECTION
9.1(A), any increase in Consolidated Net Income resulting solely from
such pro forma treatment of such "purchase" Acquisition shall be
disregarded; and
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(b) For each of the four Four-Quarter Periods ending
next following the date of each Acquisition, Consolidated Fixed Charges
shall include the results of operations of the Person or assets so
acquired, which amounts shall be determined on a historical pro forma
basis as if such Acquisition had been consummated as a "pooling of
interests;" provided, however, Consolidated Interest Expense shall be
adjusted on a historical pro forma basis to (i) eliminate interest
expense accrued during such period on any Indebtedness repaid in
connection with such Acquisition and (ii) include interest expense on
any Indebtedness (including Indebtedness hereunder) incurred, acquired
or assumed in connection with such Acquisition ("Incremental Debt")
calculated (x) as if all such Incremental Debt had been incurred as of
the first day of such Four-Quarter Period and (y) at the following
interest rates: (I) for all periods subsequent to the date of the
Acquisition and for Incremental Debt assumed or acquired in the
Acquisition and in effect prior to the date of Acquisition, at the
actual rates of interest applicable thereto, and (II) for all periods
prior to the actual incurrence of such Incremental Debt, equal to the
rate of interest actually applicable to such Incremental Debt hereunder
or under other financing documents applicable thereto as at the end of
each affected Four-Quarter Period, as the case may be.
1.4. ACCOUNTING ADJUSTMENTS. For the purposes of determining
Consolidated EBITDA and the Consolidated Fixed Charge Coverage Ratio there shall
be excluded revenues and expenses and other appropriate charges or adjustments
attributable to WCC and Chile. For the purposes of determining Consolidated
Indebtedness there shall be excluded from Consolidated Indebtedness all
Indebtedness for Money Borrowed of WCC and Chile.
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ARTICLE II
THE CREDIT FACILITIES
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrower under
the Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender, PROVIDED, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Agent has accelerated
the maturity of any of the Notes as a result of an Event of Default; PROVIDED
further, however, that immediately after giving effect to each such Advance, the
amount of Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits and subject to the other terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow under the Revolving
Credit Facility on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit Termination
Date.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed at any time the Total
Revolving Credit Commitment, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and prepayments
as shall be necessary to comply with this restriction. Each Advance under the
Revolving Credit Facility, other than Base Rate Refunding Loans and Swing Line
Loans, shall be in an amount of at least $1,000,000, and, if greater than
$1,000,000, an integral multiple of $500,000.
(c) ADVANCES. (i) An Authorized Representative shall give the
Agent (1) at least three (3) Business Days' irrevocable telephonic notice of
each Eurodollar Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a borrowing hereunder
from a Base Rate Loan to a Eurodollar Rate Loan) prior to 11:30 A.M. and (2)
irrevocable telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans to the extent the same are effected without notice pursuant to
SECTION 2.1(C)(III) and whether representing an additional borrowing hereunder
or the Conversion of borrowing hereunder from Eurodollar Rate Loans to Base Rate
Loans) prior to 11:30 A.M. on the day of such proposed Revolving Loan. Each such
notice shall be effective upon receipt by the Agent, shall specify the amount of
the borrowing, the type of Revolving Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice in the form of a
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Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions but failure to provide such confirmation shall not affect
the validity of such telephonic notice. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder, shall be
provided by the Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have received such notice
by 11:30 A.M.) not later than 1:30 P.M. on the same day as the Agent's receipt
of such notice.
(ii) Not later than 3:00 P.M. on the date specified for each borrowing
under this SECTION 2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Agent in the amount
of its pro rata share, determined according to such Lender's Applicable
Commitment Percentage of the Revolving Loan or Revolving Loans to be made on
such day. Such wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting immediately available
funds. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as shall be directed
in the applicable Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Agent.
(iii) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank, and the Borrower
shall not immediately fully reimburse the Issuing Bank in respect of such
drawing from other funds available to the Borrower, (A) provided that the
conditions to making a Revolving Loan as herein provided shall then be
satisfied, the Reimbursement Obligation arising from such drawing shall be paid
to the Issuing Bank by the Agent without the requirement of notice to or from
the Borrower from immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by each Lender under
the Revolving Credit Facility in an amount equal to such Lender's Applicable
Commitment Percentage of such Reimbursement Obligation, and (B) if the
conditions to making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the Agent (for the
benefit of the Issuing Bank) at its Principal Office in immediately available
funds the purchase from the Issuing Bank of their respective Participations in
the related Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit Commitment. If a drawing is
presented under any Letter of Credit in accordance with the terms thereof and
the Borrower shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be provided promptly by
the Issuing Bank to the Agent and the Agent shall provide notice to each Lender
by telephone or telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or before 12:00 noon
on any Business Day, each Lender shall either make a Base Rate Refunding Loan or
fund the purchase of its Participation as specified above in the amount of such
Lender's Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before 2:30 P.M.
on the same Business Day. If such notice to the Lenders is given by the Agent
after 12:00 noon on any Business Day, each Lender shall either make such Base
Rate Refunding Loan or fund such purchase before 12:00 noon on the next
following Business Day.
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(d) REPAYMENT OF REVOLVING LOANS. The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of each
Lender in full on the Revolving Credit Termination Date, or earlier as
specifically provided herein. The principal amount of any Revolving Loan may be
prepaid in whole or in part on any Business Day, upon (A) at least three (3)
Business Days' irrevocable telephonic notice in the case of each Revolving Loan
that is a Eurodollar Rate Loan from an Authorized Representative (effective upon
receipt) to the Agent prior to 11:30 A.M. and (B) irrevocable telephonic notice
in the case of each Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 11:30 A.M. on the
day of such proposed repayment. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice but failure to provide
such confirmation shall not effect the validity of such telephonic notice. All
prepayments of Revolving Loans made by the Borrower shall be in the amount of
$1,000,000 or such greater amount which is an integral multiple of $500,000, or
the amount equal to all Revolving Credit Outstandings, or such other amount as
necessary to comply with SECTION 2.1(B).
(e) REDUCTIONS. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not more
frequently than once each calendar month, upon not less than three (3) Business
Days' written notice to the Agent, effective upon receipt, to reduce the Total
Revolving Credit Commitment. The Agent shall give each Lender, within one (1)
Business Day of receipt of such notice, telefacsimile notice, or telephonic
notice (confirmed in writing), of such reduction. Each such reduction shall be
in the aggregate amount of $5,000,000 or such greater amount which is in an
integral multiple of $1,000,000, or the entire remaining Total Revolving Credit
Commitment, and shall permanently reduce the Total Revolving Credit Commitment.
Each reduction of the Total Revolving Credit Commitment shall be accompanied by
payment of the Revolving Loans or Swing Line Loans to the extent that the
principal amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings exceeds the Total Revolving Credit
Commitment after giving effect to such reduction, together with accrued and
unpaid interest on the amounts prepaid.
2.2. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower to repay
Indebtedness arising under the Existing Agreement, for general working capital
needs and other lawful corporate purposes.
2.3. NOTES.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or a
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
(b) SWING LINE NOTE. The Swing Line Outstandings shall be evidenced by
a separate Swing Line Note payable to the order of the Bank of America in the
amount of the Swing Line, which Note shall be dated the Closing Date and shall
be duly completed, executed and delivered by the Borrower.
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2.4. SWING LINE. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, Bank of America shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. Bank of America shall
not be obligated to make any Swing Line Loan pursuant hereto (i) if to the
actual knowledge of Bank of America the Borrower is not in compliance with all
the conditions to the making of Revolving Loans set forth in this Agreement,
(ii) if after giving effect to such Swing Line Loan, the Swing Line Outstandings
exceed $20,000,000, or (iii) if after giving effect to such Swing Line Loan, the
sum of the Swing Line Outstandings, Revolving Credit Outstandings and Letter of
Credit Outstandings exceeds the Total Revolving Credit Commitment. The Company
may, subject to the conditions set forth in the preceding sentence, borrow,
repay and reborrow under this SECTION 2.4. Unless notified to the contrary by
Bank of America, borrowings under the Swing Line shall be made in the minimum
amount of $20,000 or, if greater, in amounts which are integral multiples of
$10,000, or in the amount necessary to effect a Base Rate Refunding Loan, upon
written request by telefacsimile transmission, effective upon receipt, by an
Authorized Representative of the Borrower made to Bank of America not later than
1:00 P.M. on the Business Day of the requested borrowing. Each such Borrowing
Notice shall specify the amount of the borrowing and the date of borrowing, and
shall be in the form of EXHIBIT D-2, with appropriate insertions. Unless
notified to the contrary by Bank of America, each repayment of a Swing Line Loan
shall be in an amount which is an integral multiple of $10,000 or the aggregate
amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account
of Bank of America. Swing Line Loans shall bear interest solely at the Base Rate
MINUS the Applicable Margin. From and after the occurrence of an Event of
Default Swing Line Loans shall accrue interest at the Default Rate, and all
accrued and unpaid interest on Swing Line Loans shall be payable, on the dates
and in the manner provided in SECTION 4.3 with respect to interest on Base Rate
Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from Bank of America a Participation therein in an amount
equal to that Lender's Applicable Commitment Percentage of such Swing Line Loan.
Upon demand made by Bank of America, each Lender shall, according to its
Applicable Commitment Percentage of such Swing Line Loan, promptly provide to
Bank of America its purchase price therefor in an amount equal to its
Participation therein. Any Advance made by a Lender pursuant to demand of Bank
of America of the purchase price of its Participation shall when made be deemed
to be (i) provided that the conditions to making Revolving Loans shall be
satisfied, a Base Rate Refunding Loan under SECTION 2.1, and (ii) in all other
cases, the funding by each Lender of the purchase price of its Participation in
such Swing Line Loan. The obligation of each Lender to so provide its purchase
price to Bank of America shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence or
event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to Bank of America the amount necessary to repay such
Swing Line Outstandings (which Bank of America shall then apply to such
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repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to SECTION 2.1(C)(II). The
proceeds of such Advances shall be paid to Bank of America for application to
the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
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ARTICLE III
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request and for the account of the
Borrower to issue from time to time for the Borrower or Titania Letters of
Credit upon delivery to the Issuing Bank of an Application and Agreement for
Letter of Credit relating thereto in form and content acceptable to the Issuing
Bank; PROVIDED, that (i) the Issuing Bank shall not be obligated to issue (or
renew) any Letter of Credit if it has been notified by the Agent or has actual
knowledge that a Default or Event of Default has occurred and is continuing,
(ii) the Letter of Credit Outstandings shall not exceed the Total Letter of
Credit Commitment, (iii) no Letter of Credit shall be issued (or renewed) if,
after giving effect thereto, Letter of Credit Outstandings plus Revolving Credit
Outstandings plus Swing Line Outstandings shall exceed the Total Revolving
Credit Commitment and (iv) no Issuing Bank may issue a Letter of Credit without
first confirming with the Agent, in writing, that upon issuance of such Letter
of Credit the requirements of (iii) above be satisfied. No Letter of Credit
shall have an expiry date (including all rights of the Borrower or any
beneficiary named in such Letter of Credit to require renewal) or payment date
occurring later than the seventh Business Day prior to the Stated Termination
Date.
3.2. REIMBURSEMENT AND PARTICIPATIONS.
(a) The Borrower hereby unconditionally agrees to pay to each
Issuing Bank, respectively, immediately on demand at the Principal Office all
amounts required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit issued by such Issuing Bank and all reasonable expenses
incurred by such Issuing Bank in connection with the Letters of Credit, and in
any event and without demand to place in possession of the Issuing Bank (which
shall include Advances under the Revolving Credit Facility if permitted by
SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds
to pay all debts and liabilities arising under any Letter of Credit. Each
Issuing Bank agrees to give the Borrower prompt notice of any request for a draw
under a Letter of Credit. Each Issuing Bank may charge any account the Borrower
may have with it for any and all amounts such Issuing Bank pays under a Letter
of Credit, plus charges and reasonable expenses as from time to time agreed to
by such Issuing Bank and the Borrower; provided that to the extent permitted by
SECTION 2.1(c)(iii) and SECTION 2.4, amounts shall be paid pursuant to Advances
under the Revolving Credit Facility or, if the Borrower shall elect, by Swing
Line Loans. The Borrower agrees to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder at the Default Rate.
(b) In accordance with the provisions of SECTION 2.1(C), each
Issuing Bank shall notify the Agent of any drawing under any Letter of Credit
promptly following the receipt by such Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, or with respect to
Existing LCs on the Closing Date, a Participation in the liability of the
Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under SECTION 3.2(A),
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each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank, its Applicable Commitment Percentage of the
liability of the Issuing Bank under such Letter of Credit in the manner and with
the effect provided in SECTION 2.1(C)(III).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.1(C)(III)(B), such Lender shall,
automatically and without any further action on the part of the Issuing Bank or
such Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest accrued prior to the date
the Lender made its payment) in the related Reimbursement Obligation of the
Borrower. Each Lender's obligation to make payment to the Agent for the account
of the Issuing Bank pursuant to SECTION 2.1(C)(III) and SECTION 3.2(C), and the
right of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall be
made without any offset, abatement, withholding or reduction whatsoever. In the
event the Lenders have purchased Participations in any Reimbursement Obligation
as set forth above, then at any time payment (in fully collected, immediately
available funds) of such Reimbursement Obligation, in whole or in part, is
received by the Issuing Bank from the Borrower, the Issuing Bank shall promptly
pay to each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(e) Promptly following the end of each calendar quarter, each
Issuing Bank shall deliver to the Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the
request of any Lender from time to time, each Issuing Bank shall deliver to the
Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Letter of Credit
outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE VI, be
subject to the conditions that such Letter of Credit be in such form and contain
such terms as shall be reasonably satisfactory to the Issuing Bank consistent
with the then current practices and procedures of each Issuing Bank with respect
to similar letters of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of Credit as each
Issuing Bank shall have reasonably requested consistent with such practices and
procedures and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 or, if the Issuing Bank
shall elect by express reference in an affected Letter of Credit, the
International Chamber of Commerce International Standby Practices commonly
referred to as "ISP98", or any subsequent amendment or revision of either
thereof.
(g) The Borrower agrees that any Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of Credit,
any drafts or other documents otherwise in order which may be signed or issued
by an administrator, executor, trustee in bankruptcy, debtor in possession,
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assignee for the benefit of creditors, liquidator, receiver, attorney in fact or
other legal representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
(h) Without limiting the generality of the provisions of
SECTION 12.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Agent from and against any and all
claims and damages, losses, liabilities, reasonable costs and expenses which the
Issuing Bank, such other Lender or the Agent may incur (or which may be claimed
against the Issuing Bank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrower shall not
be required to indemnify any Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this SECTION 3.2(H) shall
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date, the Facility Termination Date and expiration or termination of
this Agreement.
(i) Without limiting Borrower's rights as set forth in SECTION
3.2(H), the obligation of the Borrower to immediately reimburse the Issuing Bank
for drawings made under Letters of Credit and such Issuing Bank's right to
receive such payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrower shall be performed strictly in accordance with the
terms of this Agreement and such Letters of Credit and the related Application
and Agreement for any Letter of Credit, under all circumstances whatsoever,
including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
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(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply
with the terms of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, value, or delivery (including the time, place,
manner or order thereof) of property described or purportedly
described in documents presented in connection with any Letter
of Credit or the existence, nature or extent of any insurance
relating thereto;
(vii) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations;
or
(viii) any other circumstance or happening whatsoever
where the Issuing Bank has acted in good faith, whether or not
similar to any of the foregoing.
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ARTICLE IV
EURODOLLAR FUNDING, FEES, AND PAYMENT CONVENTIONS
4.1. INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
SECTIONS 2.1(C)(I) AND 4.2, as applicable; PROVIDED, HOWEVER, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than six
(6) different Interest Periods nor shall there be outstanding at any time more
than one Interest Period having a term of one week, (b) each Eurodollar Rate
Loan (including each Conversion into and each Continuation as a Eurodollar Rate
Loan) shall be in an amount of $1,000,000 or, if greater than $1,000,000, an
integral multiple of $500,000, and (c) no Eurodollar Rate Loan shall have an
Interest Period that extends beyond the Stated Termination Date. If the Agent
does not receive a Borrowing Notice or an Interest Rate Selection Notice giving
notice of election of the duration of an Interest Period or of Conversion of any
Loan to or Continuation of a Loan as a Eurodollar Rate Loan by the time
prescribed by SECTIONS 2.1(C)(I) AND 4.2, as applicable, the Borrower shall be
deemed to have elected to obtain or Convert such Loan to (or Continue such Loan
as) a Base Rate Loan until the Borrower notifies the Agent in accordance with
SECTION 4.2. The Borrower shall not be entitled to elect to Continue any Loan as
or Convert any Loan into a Eurodollar Rate Loan if a Default or Event of Default
shall have occurred and be continuing.
4.2. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE V, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which
shall be irrevocable) on or before 11:30 A.M. on any Business Day,
Convert any Eurodollar Rate Loan to a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Agent (which shall be irrevocable) on or before 11:30 A.M. three (3)
Business Days' prior to the date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall specify the
amount of the Eurodollar Rate Loan affected, and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
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or Interest Rate Selection Notice, as the case may be, shall be provided by the
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Agent shall have received such notice by 11:30 A.M.) not later
than 1:00 P.M. on the same day as the Agent's receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
4.3. PAYMENT OF INTEREST. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears of the last
Business Day of each Fiscal Quarter, commencing on December 29, 2000, until the
Revolving Credit Termination Date, at which date the entire principal amount of
and all accrued interest on the Revolving Loans shall be paid in full, (b) in
the case of any Eurodollar Rate Loan, on last day of the applicable Interest
Period for such Eurodollar Rate Loan and if such Interest Period extends for
more than three (3) months, at intervals of three (3) months after the first day
of such Interest Period, and (c) upon payment in full of the related Revolving
Loan; PROVIDED, HOWEVER, that if any Event of Default shall occur and be
continuing, all amounts outstanding hereunder shall bear interest thereafter
until paid in full at the Default Rate.
4.4. PREPAYMENTS OF EURODOLLAR RATE LOANS. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 5.5.
4.5. MANNER OF PAYMENT. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the Agent at the
Principal Office in Dollars in immediately available funds without condition or
deduction for any setoff, recoupment, deduction or counterclaim on or before
12:30 P.M. on the date such payment is due in the case of any Loan, Letter of
Credit or Reimbursement Obligation and 1:00 P.M. in the case of a Swing Line
Loan. The Agent may, but shall not be obligated to, debit the amount of such
payment from any one or more ordinary deposit accounts of the Borrower with the
Agent.
(b) Any payment made by or on behalf of the Borrower that is not made
both in Dollars in immediately available funds and prior to 12:30 P.M. on the
date such payment is to be made in the case of any Loan, Letter of Credit or
Reimbursement Obligation and 1:00 P.M. in the case of a Swing Line Loan shall
constitute a non-conforming payment. Any such non-conforming payment shall not
be deemed to be received until the later of (i) the time such funds become
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available funds and (ii) the next Business Day. Any non-conforming payment may
constitute or become a Default or Event of Default as otherwise provided herein.
Interest shall continue to accrue at the Default Rate on any principal or fees
as to which no payment or a non-conforming payment is made from the date such
amount was due and payable until the later of (i) the date such funds become
available funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of the Notes
or any other Loan Document becomes due and payable on a day other than a
Business Day, then such due date shall be extended to the next succeeding
Business Day unless provided otherwise under the definition of "Interest
Period"; PROVIDED, however, that interest and applicable fees shall continue to
accrue during the period of any such extension; and PROVIDED further, however,
that in no event shall any such due date be extended beyond the Revolving Credit
Termination Date.
4.6. FEES. (a) FACILITY FEE. For the period beginning on the Closing
Date and ending on the Revolving Credit Termination Date, the Borrower agrees to
pay to the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a facility fee equal to the Applicable
Facility Fee multiplied by the Revolving Credit Commitment of each Lender. Such
fees shall be due in arrears on the last Business Day of each Fiscal Quarter
commencing December 29, 2000 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion.
(b) LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each outstanding Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans. Such fees shall be due and payable with respect to each
Letter of Credit quarterly in arrears on the last day of each Fiscal Quarter,
the first such payment to be made on the first such date occurring after the
date of issuance of a Letter of Credit to and on the Revolving Credit
Termination Date.
(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. The Borrower
shall pay to the Issuing Bank a fronting fee of one-eighth percent (.125%) per
annum on the aggregate amount available to be drawn on each outstanding Letter
of Credit, such fee to be due and payable quarterly in arrears with respect to
each Letter of Credit on the dates established in SECTION 4.6(B) for the payment
of Letter of Credit facility fees with respect to such Letter of Credit. The
Borrower shall also pay to the Issuing Bank such administrative fee and other
fees, if any, in connection with the Letters of Credit in such amounts and at
such times as the Issuing Bank and the Borrower shall agree from time to time.
(d) AGENT FEES. The Borrower agrees to pay to the Agent, for the
Agent's individual account, an annual Agent's fee, such fee to be payable in
such amounts and at such dates as from time to time agreed to by the Borrower
and Agent in writing.
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4.7. PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(A) AND (B), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
4.8. COMPUTATION OF RATES AND FEES. Except as may be otherwise
expressly provided, (i) the Prime Rate shall be computed on the basis of a year
of 365 or 366 days, as the case may be, and calculated for actual days elapsed,
and (ii) all other interest rates (including the Federal Funds Rate, each
Eurodollar Rate, and the Default Rate) and fees shall be computed on the basis
of a year of 360 days and calculated for actual days elapsed.
4.9. DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of SECTION 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"Deficiency Advance") and shall thereafter be entitled to payments of principal
of and interest on such Deficiency Advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such Deficiency Advance until such Deficiency Advance (together with
interest thereon as provided in clause (ii)) shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding
amount of each such Deficiency Advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Agent by a Borrower on each Loan comprising the Deficiency Advance at the
Federal Funds Rate, then such payment shall be credited against the applicable
Note of the Agent in full payment of such Deficiency Advance and such Borrower
shall be deemed to have borrowed the amount of such Deficiency Advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by such Borrower thereon. In the event any
Lender shall fail to fund its purchase of a Participation after notice from the
Issuing Bank or Bank of America as the Swing Line lender, as applicable, such
Lender shall pay to the Issuing Bank or Bank of America as the Swing Line
lender, as applicable, such amount on demand, together with interest at the
Federal Funds Rate on the amount so due from the date of such notice to the date
such purchase price is received by the Issuing Bank or Bank of America as the
Swing Line lender, as applicable.
4.10. INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
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such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
Deficiency Advance within the meaning of SECTION 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
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ARTICLE V
CHANGE IN CIRCUMSTANCES
5.1. INCREASED COST AND REDUCED RETURN.
(a) 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 any Lender (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 such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender 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
Reserve Requirement utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting
this Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this SECTION 5.1(A), the Borrower may, by notice to such Lender (with a copy to
the Agent), suspend the obligation of such Lender to make or Continue Loans of
the Type with respect to which such compensation is requested, or to Convert
Loans of any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of SECTION 5.4 shall be applicable); PROVIDED that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
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(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this SECTION 5.1 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
reasonable judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this SECTION 5.1 shall furnish to the
Borrower and the Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
(d) The provisions of this SECTION 5.1 shall continue in effect
notwithstanding the Facility Termination Date.
5.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent reasonably 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 Required Lenders reasonably determine (which
determination shall be conclusive) and notify the Agent that the
Eurodollar Rate will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement. In the event the
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Interbank Offered Rate shall no longer be available to the Lenders, at the
request of the Borrower, the Lenders and the Agent shall seek to agree to an
alternative reference for establishing the level of interest payable hereunder
which is acceptable to the Borrower, the Agent and all Lenders.
5.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of SECTION 5.4 shall be applicable).
5.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to SECTION 5.1
OR 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTION 5.1 OR 5.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 5.1 OR 5.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
5.5. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
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(i) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 10.1) on a date other
than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower (for any reason, including
the failure of any condition precedent specified in ARTICLE VI to be
satisfied, other than the failure of such Lender to make a Loan
notwithstanding satisfaction of all conditions precedent thereto) to
borrow, Convert, Continue, or prepay a Eurodollar Rate Loan on the date
for such borrowing, Conversion, Continuation, or prepayment specified
in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
The provisions of this SECTION 5.5 shall continue in effect
notwithstanding the Facility Termination Date.
5.6. TAXES. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
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, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (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 Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 5.6) such Lender or the Agent
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 Agent, at its address referred to in SECTION 12.2, the
original or a certified copy of a receipt evidencing payment thereof.
(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 Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent 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 5.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
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(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 (including Form W-8BEN or W-8EC1) or W-9, as appropriate, or any successor
form prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
such Lender is entitled to an exemption from or a reduced rate of tax on
payments pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to SECTION 5.6(D)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under SECTION 5.6(A) OR
5.6(B) with respect to Taxes imposed by the United States; PROVIDED, HOWEVER,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this SECTION 5.6, then such Lender 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 such Lender, is
not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) The provisions of this SECTION 5.6 shall continue in effect
notwithstanding the Facility Termination Date.
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ARTICLE VI
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
6.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of Bank of America to make any Swing
Line Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the initial Guaranty Agreements, the LC Account
Agreement, the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Credit Parties dated
the Closing Date, addressed to the Agent and the Lenders and
satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special
counsel to the Agent, substantially in the form of EXHIBIT G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
the Borrower as of a recent date by the Secretary of State or
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comparable official of each jurisdiction in which the failure
to be qualified to do business or authorized so to conduct
business could have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in SECTIONS 9.1(A) through 9.1(C), SECTION
9.5, SECTION 9.7 and SECTION 9.13 as of the end of the Fiscal
Quarter most recently ended prior to the Closing Date,
substantially in the form of EXHIBIT H;
(xi) evidence of all insurance required by the Loan
Documents;
(xii) an initial Borrowing Notice and, if elected by
the Borrower, Interest Rate Selection Notice;
(xiii) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full, including the due diligence expenses of the
Agent and the fees and expenses of counsel for the Agent to
the extent invoiced prior to or on the Closing Date (which may
include amounts constituting reasonable estimates of such fees
and expenses incurred or to be incurred in connection with the
transaction; provided that no such estimate shall thereafter
preclude the final settling of accounts as to such fees and
expenses);
(xiv) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xv) evidence of payment of outstanding Indebtedness
under the Existing Agreement (other than the Existing Letters
of Credit) and termination of the Existing Agreement; and
(xvi) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent prior to the Closing Date that has had
or could reasonably be expected to result in a Material
Adverse Effect;
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(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which
will not have a Material Adverse Effect.
6.2. CONDITIONS OF REVOLVING LOANS AND LETTER OF CREDIT. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue (or renew) Letters of Credit and Bank of America to make Swing Line Loans,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, Bank of
America shall have received a Borrowing Notice if required by ARTICLE
II;
(b) the representations and warranties of the Credit Parties
set forth in ARTICLE VII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, Swing Line Loan or Letter of Credit issuance or renewal,
with the same effect as though such representations and warranties had
been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in SECTION 7.6(A)
shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 7.6(A) but not for the purpose of
any cross reference to such SECTION 7.6(A) or to the financial
statements described therein contained in any other provision of
SECTION 7.6 or elsewhere in ARTICLE VII) to be those financial
statements most recently delivered to the Agent and the Lenders
pursuant to SECTION 8.1 from the date financial statements are
delivered to the Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE X shall have occurred and be
continuing; and
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(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $20,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1. ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation, limited
liability company or partnership, as the case may be duly organized and
validly existing under the laws of the jurisdiction of its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform the Guaranty Agreement
and each of the other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity).
7.2. LOAN DOCUMENTS. The execution, delivery and performance by each
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
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authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary.
7.3. SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
7.4. SUBSIDIARIES AND STOCKHOLDERS. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 7.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
SECTION 8.18; SCHEDULE 7.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, and the percentage of outstanding shares or other equity
interest (including options, warrants and other rights to acquire any interest)
of each such class of capital stock or other equity interest owned by Borrower
or by any such Subsidiary; the outstanding shares or other equity interests of
each such Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable; and Borrower and each such Subsidiary owns beneficially
and of record all the shares and other interests it is listed as owning in
SCHEDULE 7.4, free and clear of any Lien.
7.5. OWNERSHIP INTERESTS. Borrower owns no interest in any Person other
than the Persons listed in SCHEDULE 7.4, equity investments in Persons not
constituting Subsidiaries permitted under SECTION 9.7, Wackenhut Funding
Corporation and additional Subsidiaries created or acquired after the Closing
Date in compliance with SECTION 8.18.
7.6. FINANCIAL CONDITION.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at January 2, 2000 and the notes thereto and the
related consolidated statements of income, retained earnings and cash
flows for the Fiscal Year then ended as examined and certified by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, and unaudited consolidated interim financial
statements of the Borrower and its consolidated Subsidiaries consisting
of a consolidated balance sheet and related consolidated statements of
income, retained earnings and cash flows, in each case without notes,
for and as of the end of the six month period ending July 2, 2000.
Except as set forth therein, such financial statements (including the
notes thereto) present fairly the financial condition of the Borrower
and its Subsidiaries as of the end of such Fiscal Year and six month
period and results of their operations and the changes in its
stockholders' equity for the Fiscal Year and interim period then ended,
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all in conformity with GAAP applied on a Consistent Basis, subject
however, in the case of unaudited interim statements to year end audit
adjustments;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 7.6(A) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
SECTION 8.1(A) hereof, except as disclosed in Borrower's press release
dated November 3, 2000 there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to have a
Material Adverse Effect, nor have the businesses or properties of the
Borrower or any Subsidiary been materially adversely affected as a
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 7.6(A) or in SCHEDULE 7.6 or permitted by SECTION 9.5,
neither the Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness or other
commitment or liability which remains outstanding or unsatisfied.
7.7. TITLE TO PROPERTIES. The Borrower and each of its Subsidiaries has
good title to all its real and personal properties, subject to no transfer
restrictions or Liens of any kind, except for the transfer restrictions and
Liens described in SCHEDULE 7.7 and Liens permitted by SECTION 9.4.
7.8. TAXES. Except as set forth in SCHEDULE 7.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in SECTION 7.6(A) or SECTIONS 8.1(A) or (B) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
7.9. OTHER AGREEMENTS. No Credit Party is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party is a party, which
default has, or if not remedied within any applicable grace period
could reasonably be likely to have, a Material Adverse Effect.
7.10. LITIGATION. Except as set forth in SCHEDULE 7.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
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Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be likely to
have a Material Adverse Effect.
7.11. MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the Board. Neither the Borrower nor any agent acting in its behalf has
taken or will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any regulation of
the Board or to violate the Securities Exchange Act of 1934, as amended, or the
Securities Act of 1933, as amended, or any state securities laws, in each case
as in effect on the date hereof.
7.12. REGULATED COMPANY. No Credit Party is (i) an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.) or (ii) a
"holding company" or a "subsidiary company" or "affiliate" of a "holding
company" as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. The application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower and the other Credit
Parties of the transactions contemplated by the Loan Documents will not violate
any provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in effect on the
date hereof.
7.13. PATENTS, ETC. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person.
7.14. NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading.
7.15. NO CONSENTS, ETC. Neither the respective businesses or properties
of the Credit Parties, nor any relationship among the Credit Parties and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated thereby,
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other
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Person on the part of any Credit Party as a condition to the execution, delivery
and performance of, or consummation of the transactions contemplated by the Loan
Documents, which, if not obtained or effected, would be reasonably likely to
have a Material Adverse Effect, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or effected, as the
case may be.
7.16. EMPLOYEE BENEFIT PLANS.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
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the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
7.17. NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
7.18. ENVIRONMENTAL LAWS. Except as listed on SCHEDULE 7.18, the
Borrower and each Subsidiary is in material compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
material federal, state and local permits, licenses, certificates and approvals.
Except as listed on SCHEDULE 7.18, neither the Borrower nor any Subsidiary has
been notified of any pending or threatened action, suit, proceeding or
investigation, and neither the Borrower nor any Subsidiary is aware of any
facts, which (a) calls into question, or could reasonably be expected to call
into question, compliance by the Borrower or any Subsidiary with any
Environmental Laws, (b) seeks, or could reasonably be expected to form the basis
of a meritorious proceeding, to suspend, revoke or terminate any license, permit
or approval necessary for the operation of the Borrower's or any Subsidiary's
business or facilities or for the generation, handling, storage, treatment or
disposal of any Hazardous Materials, or (c) seeks to cause, or could reasonably
be expected to form the basis of a meritorious proceeding to cause, any property
of the Borrower or any Subsidiary or other Credit Party to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law.
7.19. EMPLOYMENT MATTERS. (a) Except as described in SCHEDULE 7.19,
none of the employees of the Borrower or any Subsidiary is subject to any
collective bargaining agreement and there are no strikes, work stoppages,
election or decertification petitions or proceedings, unfair labor charges,
equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or between the Borrower or any
Subsidiary and any of its employees, other than employee grievances arising in
the ordinary course of business which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and
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(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance in all respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation those
pertaining to wages, hours, occupational safety and taxation and there is
neither pending nor threatened any litigation, administrative proceeding nor, to
the knowledge of the Borrower, any investigation, in respect of such matters
which, if decided adversely, could reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect.
7.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary, except as otherwise indicated herein, to:
8.1. FINANCIAL REPORTS, ETC. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) a consolidated balance
sheet of the Borrower and its Subsidiaries and a consolidated balance sheet of
each of WCC and Chile as at the end of such Fiscal Year, and the notes thereto,
and the related consolidated statements of income, retained earnings and cash
flows, and a consolidating income statement on the equity method for Borrower
and its Subsidiaries and the respective notes thereto, for such Fiscal Year,
setting forth (other than for consolidating statements) comparative financial
statements for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a Consistent Basis (provided however that the financial statements of
Chile shall be prepared in accordance with the accounting standards in effect in
the Republic of Chile) and containing, with respect to the consolidated
financial statements, opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, or other such
independent certified public accountants selected by the Borrower and approved
by the Agent, which are unqualified as to the scope of the audit performed and
as to the "going concern" status of the Borrower and its Subsidiaries and WCC
and Chile and their Subsidiaries and without any exception not acceptable to the
Required Lenders, and (ii) a certificate of an Authorized Representative
demonstrating compliance with SECTIONS 9.1(A) through 9.1(C), SECTION 9.5,
SECTION 9.7 and SECTION 9.13 which certificate shall be in the form of EXHIBIT
H;
(b) as soon as practical and in any event within 45 days after the end
of each Fiscal Quarter (except the last Fiscal Quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) a consolidated balance sheet of the
Borrower and its Subsidiaries and a consolidated balance sheet of each of WCC
and Chile as at the end of such Fiscal Quarter, and the related consolidated
statements of retained earnings, stockholders' equity and cash flows and a
consolidating income statement on the equity method for Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year through the end of such reporting period, and
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present fairly the financial position of the Borrower
and its Subsidiaries and WCC and Chile and their Subsidiaries as of the end of
such fiscal period and the results of their operations and the changes in their
financial position for such fiscal period, in conformity with the standards set
forth in SECTION 7.6(A) with respect to interim financial statements, and (ii) a
certificate of an Authorized Representative containing computations for such
quarter comparable to that required pursuant to SECTION 8.1(A)(II);
(c) together with each delivery of the financial statements required by
SECTION 8.1(A)(I), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in SECTION 8.1(A)(I) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under SECTION 8.1(A)(I), they obtained no knowledge of any Default or Event of
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Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); or if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower or any Subsidiary to its shareholders, bondholders
or the financial community in general, and (iii) any management letter or other
report submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary;
(e) not later than sixty (60) days following the last Business Day of
each Fiscal Year, deliver to the Agent and each Lender a capital and operating
expense budget and consolidated financial projections for the Borrower and its
Subsidiaries for the next Fiscal Year, prepared in accordance with GAAP applied
on a Consistent Basis;
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request.
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement.
8.2. MAINTAIN PROPERTIES. Maintain all properties necessary to the
operations of the Borrower and its Subsidiaries, taken as a whole, in good
working order and condition, make all needed repairs, replacements and renewals
to such properties, and maintain free from Liens all trademarks, trade names,
patents, copyrights, trade secrets, know-how, and other intellectual property
and proprietary information (or adequate licenses thereto), in each case as are
reasonably necessary to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices.
8.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 9.6, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect.
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8.4. REGULATIONS AND TAXES. Comply in all material respects with all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, would become a Lien against any of its properties, except
liabilities being contested in good faith by appropriate proceedings diligently
conducted provided that (i) adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP and
(ii) any Lien arising in connection with any such contest shall be permitted to
exist to the extent provided in SECTION 9.4.
8.5. INSURANCE. The Borrower will maintain, and will cause each
Domestic Subsidiary to maintain, insurance coverage by financially sound and
reputable insurers accorded a rating by A.M. Best Company, Inc. of A-XII or
better at the time of the issuance of any such policy and in such forms and
amounts and against such risks as are customary for corporations of established
reputation engaged in the same or a similar business and owning and operating
similar properties; PROVIDED, HOWEVER, that (i) if, during the term of any such
insurance policy, the rating accorded the insurer shall be less than A-XII, the
Borrower will, on the date of renewal of any such policy (or, if such change in
rating shall occur within 90 days prior to such renewal date, within 90 days of
the date of such change in rating), obtain such insurance policy from an insurer
accorded such rating and (ii) notwithstanding the requirements of this SECTION
8.5, the Borrower or any such Subsidiary may (a) maintain self-insurance
programs with respect to employee benefits such as medical and disability
coverage and casualty risks on its property; PROVIDED that any such programs are
customary for corporations of established reputation engaged in the same or a
similar business and owning and operating similar properties and the Borrower or
the Subsidiary concerned shall maintain adequate and actuarially determined
reserves for losses in an amount and manner approved by nationally recognized
and reputable independent insurance consultants retained by the Borrower and (b)
maintain any insurance policy or program as in effect on the Closing Date with
Titania, PROVIDED that such policies or programs maintained with Titania are
customary for corporations of established reputation engaged in the same or a
similar business and owning and operating similar properties. The Borrower will
cause each Subsidiary which is not organized under the laws of the Unites States
or any state thereof to maintain in accordance with sound business practice,
insurance coverage with financially sound reputable insurers in such forms and
amounts and against such risks as are customary for corporations of established
reputation engaged in the same or a similar business and owning and operating
similar properties. The Borrower will not permit Titania to enter into insurance
or reinsurance relationships with any Person other than the Borrower or any
Subsidiary, PROVIDED, that, notwithstanding the foregoing, the Borrower may
permit Titania to maintain such relationships at such levels and in such amounts
as are in effect on the Closing Date.
8.6. TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP or such other
accounting standard as may be applicable to Subsidiaries, other than Domestic
Subsidiaries, with respect to doubtful accounts and all taxes, assessments,
charges, levies and claims and with respect to its business in general, and
include such reserves in interim as well as year-end financial statements.
8.7. RIGHT OF INSPECTION. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
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finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice. The Borrower shall not be required to pay or reimburse
the Agent or the Lenders for expenses which the Agent or the Lenders may incur
in connection with any such visitation or inspection, PROVIDED, that if such
visitation or inspection is made during any period when a Default or an Event of
Default shall have occurred and be continuing, the Borrower agrees to reimburse
the Agent and Lenders for all such reasonable expenses promptly upon demand.
8.8. OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business except, in
the case of Subsidiaries, other than Domestic Subsidiaries, where the failure to
do so could not reasonably be expected to have a material adverse effect on the
business or financial condition of such Subsidiaries, taken as a whole.
8.9. GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
8.10. COVENANTS EXTENDING TO OTHER PERSONS. Except as otherwise
provided herein, cause each of its Subsidiaries to do with respect to itself,
its business and its assets, each of the things required of the Borrower in
SECTIONS 8.2 through 8.9, and 8.18 inclusive.
8.11. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary to any Lender, or any event,
development or occurrence which could reasonably be expected to have a Material
Adverse Effect, cause such officer or an Authorized Representative to promptly
notify the Agent of the nature thereof, the period of existence thereof, and
what action the Borrower or such Subsidiary proposes to take with respect
thereto.
8.12. SUITS OR OTHER PROCEEDINGS. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary, or any attachment, levy, execution or
other process being instituted against any assets of the Borrower or any
Subsidiary, making a claim or claims in an aggregate amount greater than
$5,000,000 not otherwise covered by insurance, promptly deliver to the Agent
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
8.13. NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. Promptly provide
to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Wholly-owned Subsidiary relating to any (a) violation or alleged violation
by the Borrower or any Wholly-owned Subsidiary of any applicable Environmental
Law; (b) release or threatened release by the Borrower or any Wholly-owned
Subsidiary, or by any Person handling, transporting or disposing of any
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Hazardous Material on behalf of the Borrower or any Wholly-owned Subsidiary, or
at any facility or property owned or leased or operated by the Borrower or any
Wholly-owned Subsidiary, of any Hazardous Material, except where occurring
legally pursuant to a permit or license; or (c) liability or alleged liability
of the Borrower or any Wholly-owned Subsidiary for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials.
8.14. ENVIRONMENTAL COMPLIANCE. If the Borrower or any Wholly-owned
Subsidiary shall receive any letter, notice, complaint, order, directive, claim
or citation alleging that the Borrower or any Wholly-owned Subsidiary has
violated any Environmental Law, has released any Hazardous Material, or is
liable for the costs of cleaning up, removing, remediating or responding to a
release of Hazardous Materials, the Borrower and any Wholly-owned Subsidiary
shall, within the time period permitted and to the extent required by the
applicable Environmental Law or the Governmental Authority responsible for
enforcing such Environmental Law, remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or satisfy such
liability unless the Borrower or such Wholly-owned Subsidiary is contesting such
matter in good faith and has established adequate reserves against such
liability.
8.15. FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
8.16. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (i) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(ii) the commencement of contributions to any Employee Benefit Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (iii) any material increase in the benefits of any
existing Employee Benefit Plan, (iv) each funding waiver request filed
with respect to any Pension Plan and all communications received or
sent by the Borrower or any ERISA Affiliate with respect to such
request and (v) the failure of the Borrower or any ERISA Affiliate to
make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in
the case of Employee Benefit Plans regulated by any Foreign Benefit
Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event which would have a Material Adverse Effect or (b)
nonexempt "prohibited transaction," as such term is defined in Section
406 of ERISA or Section 4975 of the Code, in connection with any
Employee Benefit Plan or any trust created thereunder, deliver to the
Agent a notice specifying the nature thereof, what action the Borrower
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or any ERISA Affiliate has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA which would have
a Material Adverse Effect. The Borrower will notify the Agent in
writing within five (5) Business Days of the Borrower or any ERISA
Affiliate obtaining knowledge or reason to know that the Borrower or
any ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the
meaning of Section 4041(c) of ERISA.
8.17. NATURE OF BUSINESS. Neither the Borrower nor any Subsidiary will
engage in any business if, as a result, the general nature of the business,
taken on a consolidated basis, which would then be engaged in by the Borrower
and its Subsidiaries would be substantially changed from the general nature of
the business engaged in by the Borrower and its Subsidiaries on the date of this
Agreement.
8.18. NEW SUBSIDIARIES. Not later than each date (a "Delivery Date")
upon which the officer's certificate described in SECTION 8.1(A) is required to
be delivered by the Borrower, cause to be delivered to the Agent for the benefit
of the Lenders each of the following documents in respect of each Wholly-owned
Subsidiary of the Borrower created or acquired, or any existing Domestic
Subsidiary that becomes a Wholly-owned Subsidiary, after the Closing Date, as to
whom such documents have not been delivered on a prior Delivery Date (a "New
Guarantor"):
(i) a Guaranty Agreement duly executed by such New Guarantor
substantially in the form attached hereto as EXHIBIT I;
(ii) an opinion of counsel to the New Guarantor (which opinion
may be rendered by in-house counsel to the Borrower unless the Agent
requests as to any particular New Guarantor that outside counsel be
engaged to furnish the opinion) dated as of the date of delivery of the
Guaranty Agreement provided in the foregoing clause (i) and addressed
to the Agent and the Lenders, in form and substance reasonably
acceptable to the Agent, which opinion shall include the opinions with
respect to the New Guarantor and its Guaranty Agreement as are provided
on the Closing Date with respect to Guarantors and Guaranty Agreements
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on such date pursuant to SECTION 6.1(A)(II) hereof, and may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel to the Guarantors delivered pursuant to SECTION
6.1(A)(II) hereof); and
(iii) current copies of the Organizational Documents and
Operating Documents of such New Guarantor, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such charter documents, bylaws or by applicable laws, of
the shareholders or partners) of such New Guarantor authorizing the
actions and the execution and delivery of documents described in clause
(i) of this SECTION 8.18 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the Agent to
the Lenders) that such New Guarantor is solvent as of such date and
after giving effect to the Guaranty.
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ARTICLE IX
NEGATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary (except as provided in SECTION 9.7) to:
9.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit at any time Consolidated Net Worth
to be less than (i) 90% of Borrower and Subsidiaries Consolidated Net Worth at
the Fiscal Quarter ending October 1, 2000 and (ii) as at the last day of each
succeeding Fiscal Quarter of the Borrower and until (but excluding) the last day
of the next following Fiscal Quarter of the Borrower, the sum of (A) the amount
of Consolidated Net Worth required to be maintained pursuant to this SECTION
9.1(A) as at the end of the immediately preceding Fiscal Quarter, plus, (B) 50%
of Consolidated Net Income (with no reduction for net losses for any period but
including earnings and losses attributable to outstanding Minority Interest) for
the Fiscal Quarter of the Borrower ending on such day, plus (C) 75% of the Net
Proceeds to the Borrower from the sale of shares of the Borrower's capital stock
received during the Fiscal Quarter of the Borrower ending on such date. The
calculation of this covenant shall be based upon the consolidated financial
statements of the Borrower and its Subsidiaries, without giving affect to any
Accounting Adjustments.
(b) RATIO OF INDEBTEDNESS TO CAPITALIZATION. Permit at any time the
ratio of Consolidated Indebtedness to Consolidated Total Capitalization to be
greater than .50 to 1.00.
(C) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit at the end of any
Four-Quarter Period the Consolidated Fixed Charge Coverage Ratio to be less than
1.50 to 1.00.
9.2. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition and,
if the Cost of Acquisition is in excess of $5,000,000, the Borrower shall have
furnished to the Agent and the Lenders (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year of the
Borrower and most recent interim Fiscal Quarter, if applicable giving effect to
such Acquisition and (B) a certificate in the form of EXHIBIT H prepared on a
historical pro forma basis as of the most recent date for which financial
statements have been furnished pursuant to SECTION 7.6(A) or SECTION 8.1(A) OR
(B) giving effect to such Acquisition, which certificate shall demonstrate that
no Default or Event of Default would exist immediately after giving effect
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thereto, and (iii) the Person acquired shall be a Wholly-owned Subsidiary, or be
merged into the Borrower or a Wholly-owned Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be the Borrower or a Wholly-owned Subsidiary).
9.3. NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, PROVIDED that the Borrower and any Subsidiary
may enter into such an agreement in connection with (a) property acquired with
the proceeds of purchase money Indebtedness permitted hereunder, (b) the Asset
Securitization Facility, and (c) Indebtedness incurred under WCC's Amended and
Restated Credit Agreement dated December 18, 1997.
9.4. LIMITATION ON LIENS. Create or incur, or suffer to be incurred or
to exist, any Lien on its or their property, whether now owned or hereafter
acquired, or upon any income or profits therefrom, or transfer any property for
the purpose of subjecting the same to the payment of obligations in priority to
the payment of its or their general creditors, or acquire or agree to acquire,
or permit any Subsidiary to acquire, any property or assets upon conditional
sales agreements or other title retention, devices, except;
(a) Liens for property taxes and assessments or governmental
charges of a Governmental Authority or levies and Liens securing claims
or demands of mechanics and materialmen arising in the ordinary course
of business and in existence less than 90 days from the date of
creation thereof for amounts not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves are being maintained in accordance
with GAAP, which Liens are not yet exercisable to effect the sale or
seizure of property subject thereto;
(b) Liens of or resulting from any judgment or award, the time
for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Borrower or a Subsidiary shall at
any time in good faith be prosecuting an appeal or proceeding for a
review and in respect of which a stay of execution pending such appeal
or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including warehousemen's and
attorneys' liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to secure
statutory obligations, surety or appeal bonds or other liens of like
general nature incurred in the ordinary course of business and not in
connection with the borrowing of money, PROVIDED in each case, the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Borrower and its Subsidiaries or which customarily
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exist on properties of corporations engaged in similar activities and
similarly situated and which do not in any event materially impair
their use in the operation of the business of the Borrower and its
Subsidiaries;
(e) Liens existing as of the Closing Date and reflected in
SCHEDULE 7.7 hereto, securing Indebtedness of the Borrower or any
Subsidiary outstanding on such date;
(f) Liens securing Indebtedness of a Guarantor to the Borrower
or to another Guarantor;
(g) the interests in trade receivables of the purchasers
thereof created pursuant to the Asset Securitization Facility, to the
extent the same may constitute Liens;
(h) Liens incurred after the Closing Date given to secure the
payment of the purchase price incurred in connection with the
acquisition of fixed assets useful and intended to be used in carrying
on the business of the Borrower or a Subsidiary, including Liens
existing on such fixed assets at the time of acquisition thereof or at
the time of acquisition by the Borrower or a Subsidiary of any business
entity then owning such fixed assets, whether or not such existing
Liens were given to secure the payment of the purchase price of the
fixed assets to which they attach so long as they were not incurred,
extended or renewed in contemplation of such acquisition, PROVIDED that
(i) the Lien shall attach solely to the fixed assets acquired or
purchased, (ii) at the time of acquisition of such fixed assets, the
aggregate amount remaining unpaid on all Indebtedness secured by Liens
on such fixed assets whether or not assumed by the Borrower or a
Subsidiary shall not exceed an amount equal to 80% (or 100% in the case
of Capitalized Leases) of the lesser of the total purchase price or
fair market value at the time of acquisition of such fixed assets (as
determined in good faith by the Board of Directors of the Borrower),
and (iii) all such Indebtedness shall have been incurred within the
applicable limitations provided in SECTION 9.1(B) and SECTION 9.5; and
(i) Liens of WCC permitted under SECTION 9.4(F) of the Amended
and Restated Credit Agreement dated December 18, 1997, as amended,
among WCC, Bank of America, N.A., as Agent, and the Lenders party
thereto.
9.5. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in SCHEDULE 7.6; PROVIDED, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of enforcement, conversion, put,
exchange or other rights from such terms and rights as in effect on the
Closing Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
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(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) Indebtedness of WCC;
(e) the purchase of products, merchandise and services in the
ordinary course of business;
(f) Indebtedness of a Guarantor to the Borrower or to another
Guarantor;
(g) Indebtedness representing amounts received by the Borrower
or any Subsidiary in exchange for the transfer of interests in trade
receivables under the Asset Securitization Facility in excess of the
amounts repaid to the purchasers in respect of such purchase price from
the collections on such trade receivables, which shall at no time
exceed $75,000,000 in aggregate amount outstanding;
(h) additional Indebtedness not covered in clauses (a) through
(g) in an aggregate amount for the Borrower and all Subsidiaries (other
than WCC) taken as a whole not greater than $30,000,000.
9.6. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) Consolidate with or be a party to a merger with any other
corporation or sell, lease or otherwise dispose of all or any
substantial part (as defined in paragraph (d) of this SECTION 9.6) of
the assets of the Borrower and its Subsidiaries, PROVIDED, HOWEVER,
that:
(1) any Subsidiary may merge or consolidate with or
into the Borrower or any Wholly-owned Subsidiary so long as in
any merger or consolidation involving the Borrower, the
Borrower shall be the surviving or continuing corporation;
(2) any Person may consolidate or merge with the
Borrower or a Subsidiary of the Borrower if at the time of
such consolidation or merger and after giving effect thereto
no Default or Event of Default shall have occurred and be
continuing, and after giving effect to such consolidation or
merger the Borrower would be permitted to incur at least $1.00
of additional Consolidated Indebtedness under the provisions
of SECTION 9.1(B);
(3) any Subsidiary may sell, lease or otherwise
dispose of all or any substantial part of its assets to the
Borrower or any Wholly-owned Subsidiary;
(4) the Borrower and its Subsidiaries may sell trade
receivables or fractional undivided interests therein pursuant
to and in accordance with the terms of the Asset
Securitization Facility;
(5) WCC may enter into TROL Leases; and
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(6) the Borrower may sell for not less than book
value the business, assets and operations constituting the
food service business of the Borrower and its Subsidiaries.
(b) Permit any Subsidiary to issue or sell any shares of stock
of any class (including as "stock" for the purposes of this SECTION
9.6, any warrants, rights or options to purchase or otherwise acquire
stock or other Securities exchangeable for or convertible into stock)
of such Subsidiary to any Person other than the Borrower or a
Wholly-owned Subsidiary, except for the purpose of qualifying
directors, or except in satisfaction of the validly pre-existing
preemptive rights of minority shareholders in connection with the
simultaneous issuance of stock to the Borrower and/or a Subsidiary
whereby the Borrower and/or such Subsidiary maintain their same
proportionate interest in such Subsidiary.
(c) Sell, transfer or otherwise dispose of any shares of stock
of any Subsidiary (except (i) the minimal amount necessary to qualify
directors and (ii) shares of stock of WCC provided that, after giving
effect to any such sale of WCC stock, the Borrower shall own not less
than 50% of the stock of every class issued by WCC) or any Indebtedness
of any Subsidiary, and will not permit any Subsidiary to sell, transfer
or otherwise dispose of (except to the Borrower or a Wholly-owned
Subsidiary) any shares of stock or any Indebtedness of any other
Subsidiary, unless:
(1) simultaneously with such sale, transfer, or
disposition, all shares of stock and all Indebtedness of such
Subsidiary at the time owned by the Borrower and by every
other Subsidiary shall be sold, transferred or disposed of as
an entirety;
(2) the Board of Directors of the Borrower shall have
determined, as evidenced by a resolution thereof, that the
purposed sale, transfer or disposition of said shares of stock
and Indebtedness is in the best interests of the Borrower;
(3) said shares of stock and Indebtedness are sold,
transferred or otherwise disposed of to a Person, for a cash
consideration and on terms reasonably deemed by the Board of
Directors to be adequate and satisfactory;
(4) the Subsidiary being disposed of shall not have
any continuing investment in the Borrower or any other
Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition does not involve a
substantial part (as hereinafter defined) of the assets of the
Borrower and its Subsidiaries.
(d) As used in this SECTION 9.6, a sale, lease or other
disposition of assets shall be deemed to be a "substantial part" of the
assets of the Borrower and its Subsidiaries only if the book value of
such assets, when added to the book value of all other assets sold,
leased or otherwise disposed of by the Borrower and its Subsidiaries
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(other than in the ordinary course of business) during the period from
and after the Closing Date to and including the date of the sale, lease
or disposition in question, computed on a cumulative basis for said
entire period, exceeds 10% of Consolidated Net Assets, determined as of
the end of the immediately preceding Fiscal Quarter.
9.7. RESTRICTED PAYMENTS: JOINT VENTURE INVESTMENTS.
(a) RESTRICTED PAYMENTS.
(i) Declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of capital stock of the
Borrower);
(ii) Directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of its capital stock of any class
or any warrants, rights or options to purchase or acquire any shares of
its capital stock (other than (a) in exchange for or out of the net
cash proceeds to the Borrower from the substantially concurrent issue
or sale of other shares of capital stock of the Borrower or warrants,
rights or options to purchase or acquire any shares of its capital
stock, (b) purchases or acquisitions of shares of Voting Securities of
the Borrower which were issued pursuant to an employee stock plan,
PROVIDED that the aggregate amount expended therefor does not exceed
$2,000,000 in any one Fiscal Year of the Borrower, and (c) purchases or
acquisitions of shares of Voting Securities and non-voting stock of the
Borrower after October 1, 2000 in the open market for an aggregate
purchase of not to exceed $5,000,000; PROVIDED further, that such
amounts expended shall not exceed that amount necessary in order to
maintain beneficial ownership or control, directly or indirectly, of
50.1% (by number of votes) of the Voting Securities of the Borrower by
the Wackenhut Family Group);
(iii) Make any other payment or distribution, either directly
or indirectly or through any Subsidiary, in respect of its capital
stock;
(iv) Make any payment or distribution, either directly or
indirectly or through any Subsidiary, of principal of any Subordinated
Indebtedness prior to the date such payment shall be due; or
(v) Make any Restricted Investments;
(such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options, Restricted
Investments and all such other distributions being herein collectively called
"Restricted Payments"), if after giving effect thereto the aggregate amount of
Restricted Payments made during the period from and after October 1, 2000 to and
including the date of the making of the Restricted Payment in question, would
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exceed the sum of (i) $5,000,000 plus (ii) 50% of Consolidated Net Income for
such period, computed on a cumulative basis for said entire period (or if such
Consolidated Net Income is a deficit figure, then minus 100% of such deficit).
The Borrower will not declare any dividend which constitutes a
Restricted Payment payable more than 90 days after the date of declaration
thereof.
For the purposes of this SECTION 9.7 the amount of any Restricted
Payment declared, paid or distributed in property shall be deemed to be the
greater of the book value or fair market value (as determined in good faith by
the Board of Directors of the Borrower) of such property at the time of the
making of the Restricted Payment in question.
Notwithstanding the foregoing, nothing contained in this SECTION 9.7(A)
shall limit the right of Subsidiaries of the Borrower to pay dividends or to
make distributions to the Borrower.
(b) JOINT VENTURE INVESTMENTS. Make any Joint Venture Investment in any
Fiscal Year if after giving effect thereto the aggregate value of all Joint
Venture Investments of the Borrower and its Subsidiaries would exceed
$10,000,000 in such Fiscal Year.
9.8. LIMITATION ON SALE AND LEASEBACKS. Enter into any arrangement
whereby the Borrower or any Subsidiary shall sell or transfer any property
currently owned by the Borrower or any Subsidiary to any Person other than the
Borrower or a Subsidiary and thereupon the Borrower or any Subsidiary shall
lease or intend to lease, as trustee, the same property, PROVIDED, that (a) the
Borrower may sell and leaseback pursuant to TROL Leases and (b) so long as no
Default or Event of Default has occurred and is continuing or would exist as a
result of such transaction, the Borrower and its Subsidiaries shall be permitted
to enter into sale and leaseback transactions so long as (i) the aggregate net
cash proceeds received for all such sales or dispositions does not exceed
$1,000,000 during the term of this Agreement and (ii) the purchase price for
each such sale and leaseback is no less than the fair market value of the
applicable asset at the time of sale.
9.9. GUARANTIES. The Borrower will not, and will not permit any
Subsidiary to, come or be liable in respect of any Guaranty, except for (a) the
Guaranty Agreements and (b) other Guaranties which in the aggregate do not
provide for the guaranty of amounts in an aggregate principal amount exceeding
$5,000,000 at any time.
9.10. COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
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(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
9.11. FISCAL YEAR. Change its Fiscal Year.
9.12. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except for Rate Hedging Obligations incurred to limit risks
of currency or interest rate fluctuations to which the Borrower and its
Subsidiaries are otherwise subject by virtue of the operations of their
businesses, and not for speculative purposes.
9.13. ADVANCES TO WCC AND CHILE. Make or maintain loans or advances to
WCC or Chile, enter into Guaranties for the benefit of WCC or Chile, make
capital contributions to WCC or Chile or purchase securities from WCC or Chile,
if, after giving effect to any such transaction, the aggregate amount of such
outstanding loans and advances, guaranteed obligations, capital contributions
and securities purchases shall exceed in the case of WCC $10,000,000 in the
aggregate and in the case of Chile $5,000,000 in the aggregate (excluding
existing Letters of Credit of up to $20,000,000 issued by the Issuing Bank for
the benefit of Chile).
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ARTICLE X
EVENTS OF DEFAULT AND ACCELERATION
10.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or ARTICLE IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 8.7, 8.11, 8.12, 8.18 or ARTICLE
IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or an officer of the Borrower becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the Obligations
(beyond any applicable grace period, if any, contained therein), or if
any Loan Document ceases to be in full force and effect (other than as
expressly provided for hereunder or thereunder or with the express
written consent of the Agent), or if without the written consent of the
Lenders, this Agreement or any other Loan Document shall be disaffirmed
or shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly
provided for hereunder or thereunder or with the express written
consent of the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Subsidiary in an amount or Rate
Hedge Value, as applicable, not less than $100,000 in the aggregate
outstanding, or (ii) a default, which is not waived, in the
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performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness or Rate Hedging Obligation may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) with respect to any Rate Hedging Obligation, any
termination event shall occur as to which the Borrower or any
Subsidiary is the "affected party" under the agreement or instrument
governing such Rate Hedging Obligation, or (iv) any other event of
default as specified in any agreement or instrument under or pursuant
to which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, and such
default or event of default or termination shall continue for more than
the period of grace, if any, therein specified, or such default or
event of default or termination event shall permit the holder of or
counterparty to any such Indebtedness (or any agent or trustee acting
on behalf of one or more holders or counterparties) to accelerate the
maturity of any such Indebtedness or terminate any agreement or
instrument governing any such Rate Hedging Obligation; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any Subsidiary pursuant to or in connection
with any Loan Document, or otherwise, shall be false or misleading in
any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of the
Borrower or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
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applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower or any Subsidiary takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $100,000 is rendered against the Borrower or
any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $100,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(l) The Wackenhut Family Group shall own or control, directly
or indirectly, less than 33.33% of the Voting Securities of the
Borrower or there shall occur a Change of Control;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the
Issuing Bank to make further Revolving Loans and Swing Line
Loans or to issue additional Letters of Credit terminated,
whereupon the obligation of each Lender to make further
Revolving Loans, of Bank of America to make further Swing Line
Loans, and of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; PROVIDED,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans, of Bank of
America to make Swing Line Loans, and of the Issuing Bank to
issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
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immediately due and payable without the necessity of any
action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
10.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, subject to the provisions of ARTICLE XI, the
Agent may, and at the direction of the Required Lenders shall, proceed to
protect and enforce their rights and remedies contained herein or in any other
Loan Document, or as may be otherwise available at law or in equity.
10.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.4. NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
10.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE X hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders and the Issuing Bank pursuant
to SECTIONS 4.6(A), 4.6(B), 4.6(C), AND 12.5;
(b) amounts due to the Agent pursuant to SECTION 4.6(D);
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
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(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to SECTION 10.1(B);
(f) amounts due to the Issuing Bank, the Agent, the Lenders
and others pursuant to SECTIONS 3.2(H) and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
recipients, including amounts due to any of the Lenders or their
affiliates in respect of Obligations consisting of liabilities under
any Swap Agreement with any of the Lenders or their affiliates on a pro
rata basis according to the amounts owed; and
(h) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XI
THE AGENT
11.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in SECTION 11.5 and
the first sentence of SECTION 11.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates; and
(d) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The term "Agent" as used in the Loan
Documents shall not connote any fiduciary or other implied obligation under
applicable law, and is used solely as a matter of market custom to connote an
administrative relationship between independent contracting parties.
11.2. RELIANCE BY AGENT. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any certification, notice, instrument,
writing, or other communication (including, without limitation, any thereof by
telephone or telefacsimile) believed by it to be genuine and correct and to have
been signed, sent or made by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel (including counsel for any Credit
Party), independent accountants, and other experts selected by the Agent. The
Agent may deem and treat the payee of any Note as the holder thereof for all
purposes hereof unless and until the Agent receives and accepts an Assignment
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and Acceptance executed in accordance with SECTION 12.1 hereof. As to any action
not expressly mandated by this Agreement, the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such action.
11.3. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to SECTION 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, PROVIDED THAT, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
11.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Bank of America (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or affiliates as if it were not acting
as Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
11.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent and
each of its Affiliates, and their respective officers, employees and agents
(each, an "Agent Indemnitee") (to the extent not reimbursed under SECTION 12.9
hereof, but without limiting the obligations of the Borrower under such Section)
ratably in accordance with their respective Revolving Credit Commitments, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against any Agent Indemnitees (including by any Lender) in any way
relating to or arising out of any Loan Document or the transactions contemplated
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thereby or any action taken or omitted by any Agent Indemnitee under any Loan
Document; PROVIDED that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified; provided further, however, that no action or omission
taken or occurring at the direction of the Required Lenders shall constitute
either gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under SECTION
12.5, to the extent that the Agent is not promptly reimbursed for such costs and
expenses by the Borrower. The agreements contained in this SECTION 11.5 shall
survive payment in full of the Loans and all other amounts payable under this
Agreement.
11.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
11.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XI shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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ARTICLE XII
MISCELLANEOUS
12.1. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Revolving Note, and its Revolving Credit Commitment); PROVIDED, HOWEVER,
that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
this Agreement and its Revolving Note (except that any assignment by
Bank of America shall not include its rights, benefits or duties as the
Issuing Bank or as the provider of Swing Line Loans); and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the
form of EXHIBIT B hereto, together with any Revolving Note subject to
such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION 5.6.
(b) The Agent shall maintain at its address referred to in SECTION 12.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Revolving Loans
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
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(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of EXHIBIT B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Loans); PROVIDED, HOWEVER, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the yield protection
provisions contained in ARTICLE V and the right of set-off contained in SECTION
12.3, and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement (other
than amendments, modifications, or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Agent, the Lenders,
or any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest therein)
conferred hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents, and any such
purported assignment, delegation or other transfer shall be void.
12.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
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of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
The Wackenhut Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Treasury
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Wackenhut Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (561) 691-____
(b) if to the Agent:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (704) 386-____
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor
NC1-007-17-15
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Guaranty Agreement
executed by such Credit Party, as the case may be.
12.3. RIGHT OF SET-OFF; ADJUSTMENTS. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (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 such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this SECTION 12.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender or is repaid in
whole or in part by such benefitted Lender in good faith settlement of a pending
or threatened avoidance claim, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery or
settlement payment, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this SECTION 12.3 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
12.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
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effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
12.5. EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent (including the cost of internal counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
12.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Agent on behalf of the Required
Lenders (and, if ARTICLE XI or the rights or duties of the Agent are affected
thereby, by the Agent); PROVIDED that no such amendment or waiver shall, unless
signed by all the Lenders, (i) increase the Revolving Credit Commitments of the
Lenders, (ii) reduce the principal of or rate of interest on any Revolving Loan
or any fees or other amounts payable hereunder, (iii) postpone any date fixed
for the payment of any scheduled installment of principal of or interest on any
Loan or any fees or other amounts payable hereunder or for termination of any
Revolving Credit Commitment, or (iv) change the percentage of the Revolving
Credit Commitment or of the unpaid principal amount of the Notes, or the number
of Lenders, which shall be required for the Lenders or any of them to take any
action under this SECTION 12.6 or any other provision of this Agreement or (v)
release any Guarantor except as expressly contemplated in the Loan Documents;
and PROVIDED, FURTHER, that no such amendment or waiver that affects the rights,
privileges or obligations of Bank of America as provider of Swing Line Loans,
shall be effective unless signed in writing by Bank of America or that affects
the rights, privileges or obligations of the Issuing Bank as issuer of Letters
of Credit, shall be effective unless signed in writing by the Issuing Bank.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.7. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
fully-executed counterpart. Signatures on communications and other documents may
be transmitted by facsimile only with the consent of the Agent in its sole and
absolute discretion in each instance. The effectiveness of any such signatures
accepted by the Agent shall, subject to applicable law, have the same force and
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effect as manual signatures and shall be binding on all parties. The Agent may
also require that any such signature be confirmed by a manually-signed hard copy
thereof. Each party hereto hereby adopts as an original executed signature page
each signature page hereafter furnished by such party to the Agent (or an agent
of the Agent) bearing (with the consent of the Agent) a facsimile signature by
or on behalf of such party. Nothing contained in this Section shall limit the
provisions of SECTION 11.2.
12.8. TERMINATION. This Agreement shall terminate on the Facility
Termination Date, except that (a) those provisions which by the express terms
thereof continue in effect notwithstanding the Facility Termination Date, and
(b) obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, shall continue in effect. Notwithstanding
the foregoing, if after receipt of any payment of all or any part of the
Obligations, the Agent, the Issuing Bank or any Lender (including the Swing Line
Lender) is for any reason compelled to surrender such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason or
elects to repay any such amount in good faith settlement of a pending or
threatened avoidance claim, (i) this Agreement, including the provisions
pertaining to Participations in Letters of Credit, Reimbursement Obligations,
and Swing Line Loans, shall continue in full force (or be reinstated, as the
case may be) and the Borrower shall be liable to, and shall indemnify and hold
the Agent, the Issuing Bank or such Lender harmless for, the amount of such
payment surrendered until the Agent, the Issuing Bank or such Lender shall have
been finally and irrevocably paid in full, and (ii) in the event any portion of
any amount so required to be surrendered by the Agent or the Issuing Bank or the
Swing Line Lender shall have been distributed to the Lenders, the Lenders shall
promptly repay such amounts to the Agent or the Issuing Bank or the Swing Line
Lender on demand therefor. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been taken
by the Agent, the Issuing Bank or the Lenders in reliance upon such payment, and
any such contrary action so taken shall be without prejudice to the Agent's, the
Issuing Bank's or the Lenders' rights under this Agreement and shall be deemed
to have been conditioned upon such payment having become final and irrevocable.
12.9. INDEMNIFICATION; LIMITATION OF LIABILITY. (a) The Borrower agrees
to indemnify and hold harmless the Agent and each Lender and each of their
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) 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) the Loan Documents, 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 is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
87
94
In the case of an investigation, litigation or other proceeding to which the
indemnity in this SECTION 12.9 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
Subsidiaries, any Guarantor, or any security holders or creditors thereof
arising out of, related to or in connection with the transactions contemplated
herein, except to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have directly
resulted from such Indemnified Party's gross negligence or willful misconduct.
(b) The agreements and obligations of the Borrower contained in this
SECTION 12.9 shall continue in effect notwithstanding the Facility Termination
Date.
12.10. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
12.12. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
88
95
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
BROWARD, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
89
96
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
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Signature Page 7 of 7
Wackenhut Corp 2000 Credit Agreement
369437.17 (Final)
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
THE WACKENHUT CORPORATION
WITNESS:
/s/ WELLINGTON ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------
Print Name: Wellington ▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
Signature Page 1 of 7
98
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (704) 386-
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.:
-------------------------
Reference: The Wackenhut Corporation
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
---------------------------
Telephone: (704) 386-
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.:
-------------------------
Reference: The Wackenhut Corporation
Attention: Agency Services
Signature Page 2 of 7
99
SCOTIABANC INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, New York
ABA #▇▇▇▇▇▇▇▇▇
Attention: Further Credit #0735639
ScotiaBanc Inc.
Reference: The Wackenhut Corporation
Signature Page 3 of 7
100
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Lending Office:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
First Union National Bank
Charlotte, North Carolina
ABA #053000216
Account #145916-2008
Commercial Loan Participations
Attention: ▇▇▇▇▇ ▇▇▇▇▇ - 904-489-6095
Reference: The Wackenhut Corporation
Signature Page 4 of 7
101
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
SunTrust Bank
Nashville, Tennessee
ABA #▇▇▇ ▇▇▇ ▇▇▇
Account #▇▇▇▇▇▇▇▇▇▇
Account Name: Commercial Loan Wires
Attention: Leigh ▇▇▇▇ ▇▇▇▇▇▇▇
Reference: Wackenhut Corp.
Obligor #9198646451
Signature Page 5 of 7
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ AGENCY
By: /s/ ▇▇▇▇ HILLS /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ Hills ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Vice President
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
Dresdner Bank
ABA #▇▇▇-▇▇▇-▇▇▇
Account #137-694-2752
Account Name: Dresdner Bank Lateinamerika AG
Miami Agency
Credit Risk Management
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Reference: The Wackenhut Corporation
Signature Page 6 of 7
103
BANCO SANTANDER PR
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Officer
Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions
Banco Santander Puerto Rico
San ▇▇▇▇, Puerto Rico
ABA #▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporate Banking Group
Reference: The Wackenhut Corporation
Signature Page 7 of 7
104
EXHIBIT A
Applicable Commitment Percentages
APPLICABLE
REVOLVING CREDIT COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ ---------------- ----------
Bank of America, N.A $ 25,000,000.00 22.222222222%
Scotiabanc Inc. $ 22,500,000.00 20.000000000%
First Union National Bank $ 22,500,000.00 20.000000000%
SunTrust Bank $ 20,000,000.00 17.777777778%
Dresdner Bank Lateinamerika AG $ 15,000,000.00 13.333333333%
Banco Santander PR $ 7,500,000.00 6.666666667%
--------------- ---------------
$112,500,000.00 100%
A-1
105
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of November 13, 2000
(the "Credit Agreement") among The Wackenhut Corporation, a Florida corporation
(the "Borrower"), the Lenders (as defined in the Credit Agreement) and Bank of
America, N.A., as agent for the Lenders (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on SCHEDULE 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on SCHEDULE 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents.* After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Revolving Loans owing to the Assignee will be
as set forth on SCHEDULE 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Revolving Note held by the Assignor and requests
that the Agent exchange such Revolving Note for new Revolving Notes payable to
the order of the Assignee in an amount equal to the Revolving Credit Commitment
assumed by the Assignee pursuant hereto and to the Assignor in an amount equal
to the Revolving Credit Commitment retained by the Assignor, if any, as
specified on SCHEDULE 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
-----------------
* In the case of Bank of America as Assignor, excluding any rights, benefits,
or duties as provider of Swing Line Loans or an Issuing Bank.
B-1
106
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under SECTION 5.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
SCHEDULE 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Revolving
Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
107
Schedule 1
Percentage interest assigned: ________%
Assignee's Revolving Credit Commitment: $_______
Aggregate outstanding principal amount
of Revolving Loans assigned: $_______
Principal amount of Revolving Note
payable to Assignee: $_______
Principal amount of Revolving Note
payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): *_______, ____
[NAME OF ASSIGNOR], as Assignor
By:
----------------------------------------
Title:
Dated: , 200
-------------------- -----
[NAME OF ASSIGNEE], as Assignee
By:
----------------------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
----------------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
B-3
108
Accepted [and Approved] **
this ___ day of ___________, 200_
BANK OF AMERICA, N.A., as Agent
By:
--------------------------------------------------
Title:
[Approved this ____ day
of ____________, 200_
THE WACKENHUT CORPORATION
By: ]**
--------------------------------------------------
Title:
--------------
** Required if the Asignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
B-4
109
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of November
13, 2000 (the "Agreement") among The Wackenhut Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
---------------- ------------- -------------------
----------------
----------------
---------------- ------------- -------------------
----------------
----------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, ____.
THE WACKENHUT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT D-1
Form of Borrowing Notice
To: Bank of America, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of November
13, 2000 (the "Agreement") among The Wackenhut Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and Bank of America, N.A., as Agent for
the Lenders ("Agent"). Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent that Loans of the type and amount set forth below be made on the
date indicated:
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3)
--------- ------ ------ ---------------
REVOLVING LOAN
Base Rate Loan
----------- ---------- -------------------
Eurodollar Rate Loan
----------- ---------- -------------------
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of $500,000, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [INSERT
TRANSMITTAL INSTRUCTIONS] .
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either now or
after giving effect to the borrowing described herein; and
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111
2. All the representations and warranties set forth in ARTICLE VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in SECTION 7.6(A) of the
Agreement shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 7.6(A) but not for the purpose of any cross
reference to such SECTION 7.6(A) or to the financial statements described
therein contained in any other provision of SECTION 7.6 or elsewhere in ARTICLE
VII) to refer to those financial statements most recently delivered to you
pursuant to SECTION 8.1 of the Agreement (it being understood that any financial
statements delivered pursuant to SECTION 8.1(B) have not been certified by
independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
THE WACKENHUT CORPORATION
BY:
-------------------------------------------
Authorized Representative
DATE:
-----------------------------------------
▇-▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
Form of Borrowing Notice--Swing Line Loans
To: Bank of America, N.A.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of November
13, 2000 (the "Agreement") among The Wackenhut Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and Bank of America, N.A., as Agent for
the Lenders ("Agent"). Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to Bank of America that a Swing Line Loan of the amount set forth below be made
on the date indicated:
AMOUNT(1) DATE OF LOAN
__________________ __________, ____
-----------------------
(1) Must be $50,000 or if greater an integral multiple of $20,000, unless a
Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[INSERT TRANSMITTAL INSTRUCTIONS] .
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in SECTION 7.6(A) of the
Agreement shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 7.6(A) but not for the purpose of any cross
reference to such SECTION 7.6(A) or to the financial statements described
D-2-1
113
therein contained in any other provision of SECTION 7.6 or elsewhere in ARTICLE
VII) to refer to those financial statements most recently delivered to you
pursuant to SECTION 8.1 of the Agreement (it being understood that any financial
statements delivered pursuant to SECTION 8.1(B) have not been certified by
independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
THE WACKENHUT CORPORATION
By:
--------------------------------------
Authorized Representative
DATE:
------------------------------------
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114
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A., as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of November
13, 2000 (the "Agreement") among The Wackenhut Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and Bank of America, N.A., as Agent for
the Lenders ("Agent"). Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan and Interest Period:
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3)
--------- ------ ------ ---------------
REVOLVING LOAN
Base Rate Loan
---------- ------------- --------------------
Eurodollar Rate Loan
---------- ------------- --------------------
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of $500,000, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan.
THE WACKENHUT CORPORATION
By:
---------------------------------------
Authorized Representative
DATE:
-------------------------------------
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115
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$-------------- ---------, --------------
________, 2000
FOR VALUE RECEIVED, The Wackenhut Corporation, a Florida corporation
having its principal place of business located in Palm Beach Gardens, Florida
(the "Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for the
Lenders (the "Agent"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of November 13, 2000 among the Borrower, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (the "Agreement" --all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement, and
to pay interest from the date hereof on the unpaid principal amount hereof, in
like money, at said office, on the dates and at the rates provided in ARTICLES
II AND IV of the Agreement. All or any portion of the principal amount of Loans
may be prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is 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, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
F-1-1
116
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-1-2
117
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
THE WACKENHUT CORPORATION
WITNESS:
By:
------------------------ -------------------------------------------
Name:
-----------------------------------------
Title:
------------------------ ----------------------------------------
F-1-3
118
EXHIBIT F-2
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$---------------- --------, --------
___________, 2000
FOR VALUE RECEIVED, The Wackenhut Corporation, a Florida corporation
having its principal place of business located in Palm Beach Gardens, Florida
(the "Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A.
("Bank of America"), in its individual capacity, at Bank of America's offices
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (or at such other place or places as Bank of America may designate) at the
times set forth in the Credit Agreement dated as of November 13, 2000 among the
Borrower, the financial institutions party thereto (collectively, the "Lenders")
and Bank of America, N.A., as agent for the Lenders (the "Agent") (as amended,
supplemented or otherwise modified from time to time, the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
_______________________ DOLLARS ($____________) or if less than such principal
amount, the aggregate unpaid principal amount of all Swing Line Loans made by
Bank of America to the Borrower pursuant to the Agreement on the Revolving
Credit Termination Date or such earlier date as may be required pursuant to the
terms of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in ARTICLES II AND IV of the Agreement. All or any portion of the
principal amount of Swing Line Loans may be prepaid as provided in the
Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
Default Rate until such principal and interest have been paid in full. Further,
in the event of such acceleration, this Note, and all other indebtedness of the
Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
In the event this Note is 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, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed on the basis of a 360 day year for
the actual number of days in the interest period.
F-2-1
119
This Note is the Swing Line Note referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-2-2
120
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
THE WACKENHUT CORPORATION
WITNESS:
By:
---------------------------- ---------------------------------------
Name:
-------------------------------------
Title:
---------------------------- ------------------------------------
F-2-3
121
EXHIBIT G
Form of Opinion of Borrower's Counsel
November 13, 2000
Bank of America, N.A.,
as Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
Bank of America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: $95,000,000 REVOLVING CREDIT AND LETTER OF CREDIT FACILITIES AMONG BANK OF
AMERICA, N.A., AS AGENT, THE LENDERS PARTY THERETO AND THE WACKENHUT
CORPORATION
Ladies and Gentlemen:
We have acted as counsel to The Wackenhut Corporation, a Florida
corporation (the "Borrower"), and the following Persons (the "Guarantors"):
__________, __________ and __________ in connection with the negotiation,
execution, and delivery of the Credit Agreement of even date herewith among you,
the Lenders and the Borrower (the "Credit Agreement"; capitalized terms not
otherwise defined herein shall have the meanings provided therefor in the Credit
Agreement); and the execution and delivery of the other Transaction Documents
(as defined below) by the Borrower and one or more Guarantors, pursuant to which
the Lenders are providing the Revolving Credit Facility in the amount of
$________, including the $________ Letter of Credit Facility and the $________
Swing Line, each constituting part of the Revolving Credit Facility, and the
other transactions contemplated under the Credit Agreement.
This opinion is being delivered in accordance with the conditions set
forth in SECTION 6.1 of the Credit Agreement.
As such counsel, we have reviewed originals, or copies certified or
otherwise authenticated or out satisfaction, of the following documents as
executed and delivered as of the date hereof (collectively, the "Transaction
Documents"):
1. the Credit Agreement;
2. the Notes;
G-1
122
3. the Guaranty Agreement; [and
4. Add description of other Loan Documents by reference to
Credit Agreement defined terms]
For purposes of the opinions expressed below, we have assumed that all
natural persons executing the Transaction Documents have legal capacity to do
so; that all signatures (other than those of representatives of the Borrower and
the Guarantors on the Transaction Documents) on all documents submitted to us
are genuine; that all documents submitted to us as originals (other than the
Transaction Documents) are authentic; and that all documents submitted to us as
certified copies or photocopies conform to the originals of such documents,
which themselves are authentic.
For purposes of giving this opinion, we have examined such corporate
and other records of the Borrower and the Guarantors, certificates of public
officials, certificates of appropriate officers or other representatives of the
Borrower and the Guarantors, and such other documents, and have made such
inquiries as we have deemed appropriate.
Based upon and subject to the foregoing, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of its state of formation and is duly qualified
to transact business as a foreign corporation and is in good standing in the
following jurisdictions: ____________________________, and in each other
jurisdiction in which, in light of the nature of the business transacted by it
or the property owned by it, such qualification is necessary and the failure so
to qualify might impair title to any property material to its operations or its
right to enforce any material contract against others, or expose it to any
substantial liability or impairment of rights or defenses in such jurisdiction.
The Borrower has full [corporate] power and authority to own its assets and
conduct the businesses in which it is now engaged and as are expressly
contemplated by the Transaction Documents, and has full [corporate] power and
authority to enter into each of the Transaction Documents to which it is a party
and to perform its obligations thereunder and consummate the transactions
contemplated therein.
2. Each of the Transaction Documents to which the Borrower is a party
has been duly authorized by the Board of Directors of the Borrower (and by any
required shareholder action), has been duly executed and delivered by the
Borrower, and constitutes the legal, valid and binding obligation, agreement,
instrument or conveyance, as the case may be, of the Borrower, enforceable
against the Borrower in accordance with its respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization and other similar laws relating to or affecting creditors' rights
generally and by the application of general equitable principles (whether
considered in proceedings at law or in equity).
3. Each Credit Party (other than the Borrower) is a corporation [,
limited liability company or limited partnership, as the case may be,] duly
organized, validly existing and in good standing under the laws of its
G-2
123
respective state of its formation and is duly qualified to transact business as
a foreign entity and is in good standing in the following respective
jurisdictions: _________________________________, and in each other jurisdiction
in which, in light of the nature of the business transacted by such Credit Party
and the property owned by it, such qualification is necessary and the failure to
so qualify might impair title to any property material to the operations of such
Credit Party or such Credit Party's right to enforce any material contract
against others, to expose such Credit Party to any substantial liability or
impairment of rights or defenses in such jurisdiction. Each Credit Party (other
than the Borrower) has full corporate power and authority to own its assets and
conduct the businesses in which it is now engaged and as expressly contemplated
in the Transaction Documents, and has full corporate power and authority to
enter into each of the Transaction Documents to which it is a party and to
perform its obligations thereunder and consummate the transactions contemplated
therein.
4. Each of the Transaction Documents to which each Credit Party (other
than the Borrower) is a party has been duly authorized by the Board of Directors
[, managers, or general partners] of such Credit Party[, as the case may be]
(and by any required shareholder[, member or limited partner] action[, as
applicable]), has been duly executed and delivered by such Credit Party, and
constitutes the legal, valid and binding obligation, agreement or instrument, as
the case may be, of such Credit Party, enforceable against such Credit Party in
accordance with its respective terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization and other
similar laws relating to or affecting creditors' rights generally and by the
application of general equitable principles (whether considered in proceedings
at law or in equity).
5. Neither the execution or delivery of, nor performance by the
Borrower or any other Credit Party of its obligations under, the Transaction
Documents (a) does or will conflict with, violate or constitute a breach of (i)
any of the Organizational Documents or Operating Documents of the Borrower or
any other Credit Party, (ii) any laws, rules or regulations applicable to the
Borrower or any other Credit Party, or (iii) any contract, agreement, indenture,
lease, instrument, commitment, judgment, writ, determination, order, decree or
arbitral award, of which we have knowledge after due inquiry of appropriate
representatives of the Credit Parties, to which the Borrower, any other Credit
Party or any other Subsidiary is a party or by which the Borrower, any other
Credit Party or any other Subsidiary or any of their properties is bound, (b)
requires the prior consent of, notice to, license from or filing with any
Governmental Authority which has not been duly obtained or made on or prior to
the date hereof, or (c) does or will result in the creation or imposition of any
lien, pledge, charge or encumbrance of any nature upon or with respect to any of
the properties of the Borrower, any Credit Party or any other Subsidiary, except
for the Liens in your favor expressly created pursuant to the Transaction
Documents.
6. Insofar as we have knowledge of the operations and affairs of the
Credit Parties and upon due inquiry of appropriate representatives of the Credit
Parties, there is no pending or overtly threatened, action, suit, investigation
or proceeding (including, without limitation, any action, suit, investigation,
or proceeding under any environmental or labor law) before or by any court, or
governmental department, commission, board, bureau, instrumentality, agency or
arbitral authority, (i) which calls into question the validity or enforceability
of any of the Transaction Documents, or the titles to their respective offices
or authority of any officers[, members, or partners, as applicable] of the
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124
Borrower or any other Credit Party or (ii) an adverse result in which could
reasonably be expected to have a Material Adverse Effect.
7. Insofar as we have knowledge of the operations and affairs of the
Credit Parties and upon due inquiry of appropriate representatives of the Credit
Parties, there exists no event, circumstance or condition (except that we
express no opinion as to financial reporting or accounting matters) which,
immediately upon giving effect to the Transaction Documents, would constitute a
Default or Event of Default under the Credit Agreement.
8. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the proceeds of the Loans provided for
in the Transaction Documents, will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934, as amended, any regulations issued
pursuant thereto, or regulations T, U or X of the Board of Governors of the
Federal Reserve System.
9. The rate or rates of interest provided for in the Transaction
Documents, including all late payment charges and the Default Rate provided for
therein, do not and will violate or conflict with, or give rise to any defense
to payment of the Obligations or to any claim, counterclaim, setoff or
recoupment under, any usury or other law or regulation of the State of ________
governing the maximum rate of interest or amount of other charges that may be
charged or incurred in transactions of the type contemplated under the
Transaction Documents.
10. No documentary, stamp, intangibles, excise or other tax is payable
to any Governmental Authority of the State of Florida in connection with the
execution, delivery, enforcement, recording or filing of any of the Transaction
Documents, other than routine per page filing fees in connection with the filing
of Uniform Commercial Code financing statements and court costs and fees that
may be or become payable in connection with the enforcement of the Transaction
Documents.
11. Solely by reason of (i) the execution and delivery of, and
performance by the parties thereto under, the Transaction Documents, (ii) the
acceptance of the Notes and the receipt of payments in respect of the
Obligations, or (iii) the enforcement of rights and remedies by the Agent of any
Lender under the Transaction Documents, neither the Agent nor any Lender is or
shall (a) be required to qualify to do business in the State of Florida or (b)
be subject to the payment of any franchise or income tax or other tax imposed by
the State of Florida or any agency thereof payable in respect of payments
received under the Transaction Documents.
Our opinions contained herein are rendered solely in connection with
the transactions contemplated under the Transaction Documents and may not be
relied upon in any manner by any Person other than the addressees hereof, any
successor or assignee of any addressee (including successive assignees) and any
Person who shall acquire a participation interest in the interest of any Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to in any publication or document, in whole or in part,
for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as
may be required of any Reliance Party by applicable law or regulation or in
accordance with any auditing or oversight function or request of regulatory
agencies to which a Reliance Party is subject.
G-4
125
EXHIBIT H
Compliance Certificate
Bank of America, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, N.A.,
as Agent
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of November
13, 2000 (the "Agreement") among The Wackenhut Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Agreement) and Bank
of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings therefor set
forth in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with SECTION 9.1(A):
Consolidated Net Worth
1. Consolidated Net Worth at the last day of the
Most recent Fiscal Quarter $__________
2. Consolidated Net Income x 50% $__________
3. Net proceeds of sale of Borrower's capital
Stock x 75% $__________
4. Sum of A.1 + A.2 + A.3 $__________
5. Actual Consolidated Net Worth $__________
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REQUIRED: LINE A.5 MUST NOT BE LESS THAN LINE A.4
B. Compliance with SECTION 9.1(B) and 9.5: Indebtedness
(including WCC and Chile)
1. Consolidated Indebtedness $__________
2. Indebtedness for Money Borrowed of
WCC and Chile $__________
3. B.1 - B.2 $__________
4. Consolidated Net Worth $__________
5. Ratio of B.3 to B.4 ___ to 1.00
6. Outstanding trade receivables subject
to Asset Securitization Facility $__________
7. additional Indebtedness described in
SECTION 9.5(H) $__________
REQUIRED: LINE B.5 MUST NOT EXCEED .50. LINE B.6 MUST
NOT EXCEED $75,000,000. LINE B.7 MUST NOT EXCEED $30,000,000.
C. Compliance with SECTION 9.1(C): Consolidated Fixed Charge
Coverage Ratio
1. Consolidated Net Income $__________
2. Income taxes deducted in arriving at C.1 $__________
3. Consolidated Fixed Charges $__________
4. C.1 + C.2 + C.3 $__________
5. Ratio of C.4 to C.3 ____ to 1.00
REQUIRED: LINE C.5 MUST NOT BE LESS THAN 1.50 TO 1.00
D. Compliance with SECTION 9.7: Restricted Payments
1. Restricted Payments since October 1, 2000 $__________
2. Consolidated Net Income since October 1,
2000 x .50 $__________
▇-▇
▇▇▇
▇. ▇.▇ ▇ ▇▇,▇▇▇,▇▇▇ ▇__________
▇. ▇.▇ - ▇.▇ $__________
REQUIRED: LINE D.4 MUST BE EQUAL TO OR GREATER THAN 0.
E. Compliance with SECTION 9.14: Advances to Excluded
Subsidiaries
1. Loans and advances to, Guaranties, capital
contributions to, investments in:
(a) WCC $__________
(b) Chile $__________
REQUIRED: LINE E.1(A) MUST NOT EXCEED $1,500,000.
LINE E.1(B) MUST NOT EXCEED $__________.
2. No Default
A. To the best knowledge of the undersigned, since __________
(the date of the last similar certification), (a) the Borrower has not
defaulted in the keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and (b) no Default
or Event of Default specified in ARTICLE X of the Agreement has
occurred and is continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrower
proposes to take the following action with respect to such Default or
Event of Default: ____________________________________________________
______________________________________________________________________
(NOTE, if no Default or Event of Default has
occurred, insert "Not Applicable").
3. Additional Subsidiaries
Listed on the Schedule of Additional Persons attached hereto is a true
and correct description of all Subsidiaries in respect of which the Borrower is
required pursuant to SECTION 8.18 of the Agreement to deliver or cause to be
delivered a Guaranty Agreement and related documents not later than the date of
this Certificate, and all documents so required to be delivered in respect of
each such Persons are delivered to you simultaneously herewith.
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The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 8.18 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, ____.
By:
-----------------------------------------
Authorized Representative
Name:
---------------------------------------
Title:
--------------------------------------
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EXHIBIT I
Form of Guaranty
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
__________, 2000, is made by the undersigned (the "Guarantor" and, together with
other Subsidiaries of the Borrower who have heretofore or hereafter guaranteed
the Borrower's Liabilities, as defined below, collectively, the "Guarantors") to
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, as agent (in such capacity, the "Agent")
for each of the lenders (the "Lenders" and collectively with the Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement (as defined
below). All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to The Wackenhut
Corporation (the "Borrower") certain credit facilities, including a revolving
credit facility with a letter of credit and swing line sublimit pursuant to the
terms of that certain Credit Agreement dated as of November 13, 2000, among the
Borrower, the Agent and the Lenders (as from time to time amended, modified,
supplemented or restated, the "Credit Agreement"); and
WHEREAS, the Guarantor is, directly or indirectly, a Wholly-owned
Subsidiary of the Borrower and will materially benefit from the Loans and
Advances made and to be made, and the Letters of Credit issued and to be issued,
under the Credit Agreement; and
WHEREAS, the Guarantor is required to enter into this Guaranty
Agreement pursuant to the terms of the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Secured Parties was the obligation of the Borrower to cause the Guarantor to
enter into this Guaranty Agreement, and the Secured Parties are unwilling to
continue to extend and maintain the credit facilities provided under the Loan
Documents unless the Guarantor enters into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. GUARANTY. The Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the Agent
for the benefit of the Secured Parties the payment and performance in full of
the Borrower's Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Borrower's Liabilities" means: (a) the Borrower's prompt payment in
full, when due or declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
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other Loan Documents heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Borrower to any one or more of the Secured
Parties, including principal, interest, premiums and fees (including, but not
limited to, loan fees and reasonable attorneys' fees and expenses); (b) the
Borrower's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement and all other
Loan Documents; and (c) the Borrower's prompt payment in full, when due or
declared due and at all such times, of Rate Hedging Obligations now or hereafter
arising under Swap Agreements. The Guarantor's obligations to the Secured
Parties under this Guaranty Agreement are hereinafter referred to as the
"Guarantor's Obligations". Notwithstanding the foregoing, the liability of the
Guarantor individually with respect to its Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
The Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
2. PAYMENT. If the Borrower shall default in payment or performance of
any of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and reasonable attorneys' fees and
expenses), or otherwise, when and as the same shall become due, and after
expiration of any applicable grace period, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the occurrence and
during the continuance of any Event of Default under the Credit Agreement, then
any or all of the Guarantors will, upon demand thereof by the Agent, fully pay
to the Agent, for the benefit of the Secured Parties, subject to any limitation
on each Guarantor's Obligations set forth in Section 1 hereof, an amount equal
to all the Borrower's Liabilities then due and owing.
3. ABSOLUTE RIGHTS AND OBLIGATIONS. This is a guaranty of payment and
not of collection. The Guarantor's Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional, subject to the
limitation set forth in Section 1 hereof, irrespective of, and the Guarantor
hereby expressly waives, to the extent permitted by law, any defense to its
obligations under this Guaranty Agreement by reason of:
(a) any lack of legality, validity or enforceability of the
Credit Agreement, of any of the Notes, of any other Loan Document, or
of any other agreement or instrument creating, providing security for,
or otherwise relating to any of the Guarantor's Obligations, any of the
Borrower's Liabilities, or any other guaranty of any of the Borrower's
Liabilities (the Loan Documents and all such other agreements and
instruments being collectively referred to as the "Related
Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or
omission to enforce any right conferred thereby, or any waiver of any
covenant or condition therein provided;
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(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or
of any other obligations or liabilities of any Person under any of the
Related Agreements;
(d) any release, exchange, non-perfection, lapse in
perfection, disposal, deterioration in value, or impairment of any
security for any of the Borrower's Liabilities, for any of the
Guarantor's Obligations of any Guarantor, or for any other obligations
or liabilities of any Person under any of the Related Agreements;
(e) any dissolution of the Borrower or any Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Borrower or any Guarantor or any other party to a Related
Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a
Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement of,
and any acceptance of late or partial payments under, the Credit
Agreement, any of the Notes or any other Loan Document or any other
Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty (or
security therefor) of the Borrower's Liabilities (including without
limitation the Guarantor's Obligations of any other Guarantor and
obligations arising under any other Guaranty Agreement by any other
Credit Party now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in the Credit Agreement, any other Loan Document or any other
Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Borrower's Liabilities, any of
the Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice
to or knowledge of any Guarantor) which may or might in any manner or
to any extent vary the risks of the Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of,
a surety or a guarantor, including without limitation any right to
require or claim that resort be had to the Borrower or any other Credit
Party or to any collateral in respect of the Borrower's Liabilities or
Guarantor's Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantor's Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided, subject to the limitation on each Guarantor's
Obligations set forth in Section 1 above.
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4. CURRENCY AND FUNDS OF PAYMENT. All Guarantor's Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower's Liabilities, or the rights
of any Secured Party with respect thereto as against the Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
the Borrower of any or all of the Borrower's Liabilities.
5. EVENTS OF DEFAULT. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit support
for the Borrower's Liabilities, at the Agent's election and without notice
thereof or demand therefor, the Guarantor's Obligations shall immediately be and
become due and payable after the expiration of grace periods, if any.
6. SUBORDINATION. Until this Guaranty Agreement is terminated in
accordance with Section 23 hereof, the Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to the Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantor's Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Credit Party, to the payment in full of the obligations of such
Credit Party owing to any Secured Party and arising under the Loan Documents.
All amounts due under such subordinated debts, liabilities, or obligations
shall, upon the occurrence and during the continuance of an Event of Default, be
collected and, upon request by the Agent, paid over forthwith to the Agent for
the benefit of the Secured Parties on account of the Borrower's Liabilities, the
Guarantor's Obligations, or such other obligations, as applicable, and, after
such request and pending such payment, shall be held by the Guarantor as agent
and bailee of the Secured Parties separate and apart from all other funds,
property and accounts of the Guarantor.
7. SUITS. The Guarantor from time to time shall pay to the Agent for
the benefit of the Secured Parties, on demand, at the Agent's place of business
set forth in the Credit Agreement or such other address as the Agent shall give
notice of to the Guarantor, the Guarantor's Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Agent may
proceed to suit against any one or more or all of the Guarantors. At the Agent's
election, one or more and successive or concurrent suits may be brought hereon
by the Agent against any one or more or all of the Guarantors, whether or not
suit has been commenced against the Borrower, any other Guarantor, or any other
Person and whether or not the Secured Parties have taken or failed to take any
other action to collect all or any portion of the Borrower's Liabilities or have
taken or failed to take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
8. SET-OFF AND WAIVER. The Guarantor waives any right to assert against
any Secured Party as a defense, counterclaim, set-off or cross claim to any
claim under this Guaranty Agreement, any defense (legal or equitable) or other
claim which the Guarantor may now or at any time hereafter have against the
Borrower or the Secured Parties without waiving any other defenses, set-offs,
counterclaims, cross claims or other claims against any Secured Party or other
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Person otherwise available to the Guarantor. The Guarantor agrees that each
Secured Party shall have a lien for all the Guarantor's Obligations upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts, now or hereafter pledged, mortgaged, transferred or assigned
to such Secured Party or otherwise in the possession or control of such Secured
Party for any purpose (other than solely for safekeeping) for the account or
benefit of the Guarantor, including any balance of any deposit account or of any
credit of the Guarantor with the Secured Party, whether now existing or
hereafter established, and hereby authorizes each Secured Party from and after
the occurrence of an Event of Default at any time or times with or without prior
notice to apply such balances or any part thereof to such of the Guarantor's
Obligations to the Secured Parties then due and in such amounts as provided for
in the Credit Agreement or otherwise as they may elect. For the purposes of this
SECTION 8, all remittances and property shall be deemed to be in the possession
of a Secured Party as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
9. WAIVER OF NOTICE; SUBROGATION.
(a) The Guarantor hereby waives to the extent permitted by law
notice of the following events or occurrences: (i) acceptance of this
Guaranty Agreement; (ii) the Lenders' heretofore, now or from time to
time hereafter making Loans and issuing Letters of Credit and otherwise
loaning monies or giving or extending credit to or for the benefit of
the Borrower, whether pursuant to the Credit Agreement or the Notes or
any other Loan Document or Related Agreement or any amendments,
modifications, or supplements thereto, or replacements or extensions
thereof; (iii) presentment, demand, default, non-payment, partial
payment and protest; and (iv) any other event, condition, or occurrence
described in SECTION 3 hereof. The Guarantor agrees that each Secured
Party may heretofore, now or at any time hereafter do any or all of the
foregoing in such manner, upon such terms and at such times as each
Secured Party, in its sole and absolute discretion, deems advisable,
without in any way or respect impairing, affecting, reducing or
releasing the Guarantor from its Guarantor's Obligations, and the
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) The Guarantor hereby agrees that payment or performance by
the Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by the Agent on behalf of the Secured Parties
upon demand by the Agent to the Guarantor without the Agent being
required, the Guarantor expressly waiving to the extent permitted by
law any right it may have to require the Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the
Borrower or any other Guarantor or any other guarantor of the
Borrower's Liabilities, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances
granted to the Agent or any Lender or other party to a Related
Agreement by the Borrower, any other Guarantor or any other Person on
account of the Borrower's Liabilities or any guaranty thereof, IT BEING
EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT
DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE AGENT, EFFECTIVE AS OF THE FIRST DATE
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ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT AFTER GRACE PERIODS, IF ANY, FOR THE EVENT OF DEFAULT.
(c) The Guarantor further agrees with respect to this Guaranty
Agreement that it shall have no right of subrogation, reimbursement,
contribution or indemnity, nor any right of recourse to security for
the Borrower's Liabilities unless and until 93 days immediately
following the Facility Termination Date shall have elapsed without the
filing or commencement, by or against any Credit Party, of any state or
federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect
of creditors of, or the appointment of a receiver, liquidator, trustee
or conservator in respect to, such Credit Party or its assets. This
waiver is expressly intended to prevent the existence of any claim
(within the meaning of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code) in respect to such subrogation, reimbursement, contribution or
indemnity by the Guarantor against the estate of any other Credit
Party, in the event of a subsequent case involving any other Credit
Party. If an amount shall be paid to the Guarantor on account of such
rights at any time prior to termination of this Guaranty Agreement in
accordance with the provisions of SECTION 23 hereof, such amount shall
be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Agent, for the benefit of the Secured Parties,
to be credited and applied upon the Guarantor's Obligations, whether
matured or unmatured, in accordance with the terms of the Credit
Agreement or otherwise as the Secured Parties may elect. The agreements
in this subsection shall survive repayment of all of the Guarantor's
Obligations, the termination or expiration of this Guaranty Agreement
in any manner, including but not limited to termination in accordance
with SECTION 23 hereof, and occurrence of the Facility Termination
Date.
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with SECTION 23 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against the
Guarantor under this Guaranty Agreement may be asserted by the Agent on behalf
of the Secured Parties by written notice directed to the Guarantor in accordance
with SECTION 25 hereof.
11. REPRESENTATIONS AND WARRANTIES. The Guarantor warrants and
represents to the Agent, for the benefit of the Secured Parties, that it is duly
authorized to execute, deliver and perform this Guaranty Agreement; that this
Guaranty Agreement has been duly executed and delivered on behalf of the
Guarantor by its duly authorized representatives; that this Guaranty Agreement
is legal, valid, binding and enforceable against the Guarantor in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles; and that the
Guarantor's execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of any of its Operating Documents or
Organizational Documents, any agreement or instrument to which the Guarantor is
a party, or any law, order, regulation, decree or award of any governmental
authority or arbitral body to which it or its properties or operations is
subject.
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12. EXPENSES. The Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including reasonable
attorneys' fees, incurred by any Secured Party in connection with the
enforcement of this Guaranty Agreement, whether or not suit be brought.
13. REINSTATEMENT. The Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
after payment received by any Secured Party in respect of any Borrower's
Liabilities is rescinded or must be restored for any reason, or is repaid by any
Secured Party in whole or in part in good faith settlement of any pending or
threatened avoidance claim.
14. ATTORNEY-IN-FACT. To the extent permitted by law, the Guarantor
hereby appoints the Agent, for the benefit of the Secured Parties, as the
Guarantor's attorney-in-fact for the purposes of carrying out the provisions of
this Guaranty Agreement and taking any action and executing any instrument which
the Agent may deem necessary or advisable to accomplish the purposes hereof,
which appointment is coupled with an interest and is irrevocable; PROVIDED, that
the Agent shall have and may exercise rights under this power of attorney only
upon the occurrence and during the continuance of an Event of Default after
expiration of grace periods, if any, for such Event of Default.
15. RELIANCE. The Guarantor represents and warrants to the Agent, for
the benefit of the Secured Parties, that: (a) the Guarantor has adequate means
to obtain on a continuing basis (i) from the Borrower, information concerning
the Borrower and the Borrower's financial condition and affairs and (ii) from
other reliable sources, such other information as it deems material in deciding
to provide this Guaranty Agreement ("Other Information"), and has full and
complete access to the Borrower's books and records and to such Other
Information; (b) the Guarantor is not relying on any Secured Party or its or
their employees, directors, agents or other representatives or affiliates, to
provide any such information, now or in the future; (c) the Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other
Loan Documents as it has requested, is executing this Guaranty Agreement freely
and deliberately, and understands the obligations and financial risk undertaken
by providing this Guaranty Agreement; (d) the Guarantor has relied solely on the
Guarantor's own independent investigation, appraisal and analysis of the
Borrower, the Borrower's financial condition and affairs, the "Other
Information", and such other matters as it deems material in deciding to provide
this Guaranty Agreement and is fully aware of the same; and (e) the Guarantor
has not depended or relied on any Secured Party or its or their employees,
directors, agents or other representatives or affiliates, for any information
whatsoever concerning the Borrower or the Borrower's financial condition and
affairs or any other matters material to the Guarantor's decision to provide
this Guaranty Agreement, or for any counseling, guidance, or special
consideration or any promise therefor with respect to such decision. The
Guarantor agrees that no Secured Party has any duty or responsibility
whatsoever, now or in the future, to provide to the Guarantor any information
concerning the Borrower or the Borrower's financial condition and affairs, or
any Other Information, other than as expressly provided herein, and that, if the
Guarantor receives any such information from any Secured Party or its or their
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employees, directors, agents or other representatives or affiliates, the
Guarantor will independently verify the information and will not rely on any
Secured Party or its or their employees, directors, agents or other
representatives or affiliates, with respect to such information.
16. RULES OF INTERPRETATION. The rules of interpretation contained in
SECTIONS 1.2(C) through 1.2(l) and SECTION 12.12 of the Credit Agreement shall
be applicable to this Guaranty Agreement and are hereby incorporated by
reference. All representations and warranties contained herein shall survive the
delivery of documents and any extension of credit referred to herein or
guaranteed hereby.
17. ENTIRE AGREEMENT. This Guaranty Agreement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Except as provided in SECTION 23, neither this Guaranty Agreement nor
any portion or provision hereof may be changed, altered, modified, supplemented,
discharged, canceled, terminated, or amended orally or in any manner other than
as provided in the Credit Agreement.
18. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective heirs, legal
representatives, successors and assigns to the same extent that the assignment
by the respective party of its rights and obligations under the Credit Agreement
is permitted thereby; provided, however, that the Guarantor shall not be
permitted to assign any of its rights, powers, duties or obligations under this
Guaranty Agreement or any other interest herein without the prior written
consent of the Agent. Without limiting the generality of the foregoing sentence
of this Section 18, any Lender may assign to one or more Persons, or grant to
one or more Persons participations in or to, all or any part of its rights and
obligations under the Credit Agreement (to the extent permitted by the Credit
Agreement); and to the extent of any such assignment or participation such other
Person shall, to the fullest extent permitted by law, thereupon become vested
with all the benefits in respect thereof granted to such Lender herein or
otherwise, subject however, to the provisions of the Credit Agreement, including
ARTICLE XI thereof (concerning the Agent) and SECTION 12.1 thereof concerning
assignments and participations. All references herein to the Agent shall include
any successor thereof.
19. SWAP AGREEMENTS. All obligations of the Borrower under Swap
Agreements to which any Lender or its affiliates are a party shall be deemed to
be Borrower's Liabilities, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party hereunder with respect
to such Borrower's Liabilities; PROVIDED, HOWEVER, that such obligations shall
cease to be Borrower's Liabilities at such time as such Person (or affiliate of
such Person) shall cease to be a "Lender" under the Credit Agreement.
20. SEVERABILITY. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
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shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
21. COUNTERPARTS. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought.
22. INDEMNIFICATION. Without limitation of SECTION 12.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
Guarantor agrees to indemnify and hold harmless each Secured Party and each of
their 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) 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) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans or other
extension of credit under the Loan Documents, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
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 22 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Guarantor or any other
Credit Party, any of their respective directors, shareholders or creditors, or
an Indemnified Party or any other Person, or any Indemnified Party is otherwise
a party thereto and whether or not the transactions contemplated hereby are
consummated. The Guarantor agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to it,
any of its subsidiaries or affiliates, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is held in a final
non-appealable judgment by a court of competent jurisdiction to have directly
resulted from such Indemnified Party's gross negligence or willful misconduct.
The agreements in this Section 22 shall survive repayment of all of the
Guarantor's Obligations and the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination upon
occurrence of the Facility Termination Date.
23. TERMINATION. Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and all of the Guarantor's Obligations hereunder
(excluding those obligations and liabilities that expressly survive such
termination) shall terminate on the Facility Termination Date.
24. REMEDIES CUMULATIVE; LATE PAYMENTS. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the Agent
or any other Secured Party provided by law or under the Credit Agreement, the
other Loan Documents or other applicable agreements or instruments. The making
of the Loans and other extensions of credit to the Borrower pursuant to the
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Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon the Guarantor's guaranty of the Borrower's
Liabilities pursuant to the terms hereof. Any amounts not paid when due under
this Guaranty Agreement shall bear interest at the Default Rate.
25. NOTICES. Any notice required or permitted hereunder shall be given,
(a) with respect to the Guarantor, at the address of the Borrower indicated in
SECTION 12.2 of the Credit Agreement and (b) with respect to the Agent or any
other Secured Party, at the Agent's address indicated in SECTION 12.2 of the
Credit Agreement. All such addresses may be modified, and all such notices shall
be given and shall be effective, as provided in SECTION 12.2 of the Credit
Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
BROWARD, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE GUARANTOR EXPRESSLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO THE
GUARANTOR IN EFFECT PURSUANT TO SECTION 25 HEREOF, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN THE COURTS OF ANY JURISDICTION
WHERE THE GUARANTOR OR ANY OF THE GUARANTOR'S PROPERTY OR ASSETS MAY BE
FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY
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SUCH JURISDICTION, THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY
SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, THE GUARANTOR AND THE AGENT ON
BEHALF OF THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) THE GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signature page follows.]
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Wackenhut Corp 2000 Credit Agreement
369437.17 (Final)
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
__________________________________________
WITNESS:
By:________________________________________
____________________________ Name: ___________________________________
Print Name:__________________ Title: ___________________________________
______________________________
Print Name:__________________
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AGENT:
BANK OF AMERICA, N.A., as Agent for the Lenders
By:__________________________________________
Name: ____________________________________
Title: ____________________________________
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SCHEDULE 1.1
Existing Letters of Credit
S-1
143
SCHEDULE 7.4
Subsidiaries and Investments in Other Persons
S-2
144
SCHEDULE 7.6
Indebtedness
S-3
145
SCHEDULE 7.7
Liens
S-4
146
SCHEDULE 7.8
Tax Matters
S-5
147
SCHEDULE 7.10
Litigation
S-6
148
SCHEDULE 7.18
Environmental Matters
S-7
149
SCHEDULE 7.19
Employment Matters
S-8