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EXHIBIT 10.4
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CREDIT AGREEMENT
among
COOPERATIVE COMPUTING, INC. (FORMERLY NAMED
TRIAD SYSTEMS CORPORATION),
as Borrower,
COOPERATIVE COMPUTING HOLDING COMPANY, INC.
(FORMERLY NAMED COOPERATIVE COMPUTING, INC.),
as Guarantor,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
AND
THE CHASE MANHATTAN BANK,
as Administrative Agent
DATED AS OF FEBRUARY 27, 1997
AS AMENDED AND RESTATED AS OF FEBRUARY 10, 1998
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CHASE SECURITIES INC.,
AS ARRANGER
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CREDIT AGREEMENT, dated as of February 27, 1997, as amended and restated as
of February 10, 1998, among COOPERATIVE COMPUTING, INC., a Delaware corporation
(the "Borrower"), COOPERATIVE COMPUTING HOLDING COMPANY, INC., a Texas
corporation ("CCI"), the several banks and other financial institutions from
time to time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New
York banking corporation, as administrative agent for the Lenders hereunder (in
such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, CCI, certain lenders (the "Existing Lenders") and
the Administrative Agent are parties to the $170,000,000 Credit Agreement dated
as of February 27, 1997 (as in effect immediately prior to the effectiveness of
this Agreement, the "Existing Credit Agreement");
WHEREAS, the Borrower intends to issue its unsecured senior subordinated
notes due February 1, 2008 for net cash proceeds of at least $97,000,000 (the
"Senior Subordinated Notes");
WHEREAS, in order to refinance the Borrower's commitments and indebtedness
under the Existing Credit Agreement, and for other purposes described herein,
the Borrower has requested the Lenders to establish a $50,000,000 term loan
facility (the "Term Loan Facility") and a $50,000,000 revolving credit facility
(the "Revolving Credit Facility", with the Term Loan Facility, the "Facilities")
pursuant to which term loans and revolving credit loans may be made to the
Borrower and letters of credit may be issued under the Revolving Credit Facility
for the account of the Borrower;
WHEREAS, (i) the Existing Credit Agreement is being amended and restated
pursuant to this Agreement, (ii) all indebtedness and commitments under the
Existing Credit Agreement, as amended and restated in connection with this
Agreement, will be continued under this Agreement and (iii) all obligations of
the Credit Parties under the Loan Documents (as such terms are defined herein)
and all liens and security interests created under the Loan Documents will be
continued, amended and restated as provided herein and therein and will not be
cancelled or discharged;
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
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"Administrative Agent": as defined in the preamble to this Agreement.
"Affected Eurodollar Loans": as defined in Section 2.10(h).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (i) vote 51% or more of the securities having ordinary voting
power for the election of directors of such Person or (ii) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agreement": this Credit Agreement, as further amended, amended and
restated, supplemented or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by Chase as its
prime rate in effect at its principal office in New York City; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for
any day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board of Governors of
the Federal Reserve System (the "Board") through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York
City received at approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected
by it; and "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base
CD Rate or the Federal
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Funds Effective Rate, or both, for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate
or the Federal Funds Effective Rate shall be effective on the effective day
of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Alternate Base Rate.
"Applicable Margin": with respect to any Alternate Base Rate Loan,
1.25%; with respect to any Eurodollar Loan, 2.25%; and with respect to any
commitment fee, as provided in Section 2.4; provided that in the event that
the ratio of Consolidated Total Debt of the Borrower and its Subsidiaries
to Consolidated EBITDA of the Borrower and its Subsidiaries, as most
recently determined in accordance with Section 8.1(d), is as set forth in
the relevant column heading below for any quarterly period, any such
Applicable Margin (including in the case of Alternate Base Rate Loans,
Swing Line Loans) shall be as provided in the relevant column heading
below, but in no event shall any such reductions be effective prior to
February 10, 1999:
Applicable
Relevant Ratio Applicable Margin Margin for
of Consolidated Total Debt to For Eurodollar Alternate Base Commitment
Consolidated EBITDA Loans Rate Loans Fee
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3.75x and above 2.25% 1.25% 0.500%
3.25x to but excluding 3.75x 2.00% 1.00% 0.500%
2.75x to but excluding 3.25x 1.75% 0.75% 0.375%
Below 2.75x 1.50% 0.50% 0.375%
if the financial statements required to be delivered pursuant to
Section 7.1(a) or 7.1(b), as applicable, and the related compliance
certificate required to be delivered pursuant to Section 7.2(b), are
delivered on or prior to the date when due (or, in the case of the
fourth quarterly period of each fiscal year of the Borrower, if
financial statements which satisfy the requirements of, and are
delivered within the time period specified in, Section 7.l(b) and a
related compliance certificate which satisfies the requirements of, and
is delivered within the time period specified in, Section 7.2(b), with
respect to any such quarterly period are so delivered within such time
periods), then the Applicable Margin during the period from the date
upon which such financial
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statements were delivered shall be the Applicable Margin as set forth
in the relevant column heading above; provided, however, that in the
event that the financial statements delivered pursuant to Section
7.1(a) or 7.1(b), as applicable, and the related compliance
certificate required to be delivered pursuant to Section 7.2(b), are
not delivered when due, then:
(a) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered (without giving effect
to any applicable cure period) and the Applicable Margin
increases from that previously in effect as a result of the
delivery of such financial statements and certificate, then the
Applicable Margin (including in the case of Alternate Base Rate
Loans, Swing Line Loans) during the period from the date upon
which such financial statements and certificate were required to
be delivered (without giving effect to any applicable cure
period) until the date upon which they actually are delivered
shall, except as otherwise provided in clause (c) below, be the
Applicable Margin as so increased;
(b) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered (without giving effect
to any applicable cure period) and the Applicable Margin
decreases from that previously in effect as a result of the
delivery of such financial statements and certificate, then such
decrease in the Applicable Margin shall not become applicable
until the date upon which such financial statements and
certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the
date upon which such financial statements and certificate were
required to be delivered (after the expiration of the applicable
cure period) until two Business Days following the date upon
which they actually are delivered, the Applicable Margin
(including in the case of Alternate Base Rate Loans, Swing Line
Loans) shall be 2.25%, in the case of Eurodollar Loans, 1.25%, in
the case of Alternate Base Rate Loans and 0.50% in the case of
the commitment fee provided for in Section 2.4 (it being
understood that the foregoing shall not limit the rights of the
Administrative Agent and the Lenders set forth in Section 9).
"ARISB Acquisition": as defined in Section 8.9(k).
"Asset Sale": any sale, transfer or other disposition (including
any sale and leaseback of assets and any sale of accounts receivable
in connection with a receivable financing transaction) by the Borrower
or any of its Subsidiaries of any property of the Borrower or any such
Subsidiary (including property subject to any Lien under any Security
Document), other than as permitted pursuant to Section 8.6 (provided
that, except with respect to the loss or condemnation of all or
substantially all of the assets of the Borrower and its Subsidiaries,
the proceeds from such casualty or condemnation (including insurance)
are used to replace or rebuild the lost or condemned assets within the
time period specified in Section 2.10(f)).
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"Assignee": as defined in Section 12.6(c).
"Assignment and Acceptance": an assignment and acceptance entered
into by a Lender or an assignee, substantially in the form of Exhibit
E.
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) the amount of such Revolving Credit Lender's Revolving Credit
Commitment over (b) the aggregate of (i) the aggregate unpaid
principal amount at such time of all Revolving Credit Loans made by
such Revolving Credit Lender, (ii) an amount equal to such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the
aggregate unpaid principal amount at such time of all Swing Line
Loans, provided that for purposes of calculating Available Revolving
Credit Commitments pursuant to Section 2.4 such amount shall be zero,
and (iii) an amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the Letter of Credit Outstandings at
such time; collectively, as to all the Lenders, the "Available
Revolving Credit Commitments."
"Borrower": as defined in the preamble to this Agreement.
"Borrowing Date": any Business Day specified in a notice pursuant
to Section 2.3, 2.8, 2.13 or 3.2 as a date on which the Borrower
requests Lenders to make Loans hereunder or the Issuing Lender to
issue a Letter of Credit hereunder.
"Business": the collective reference to the businesses of CCI and
the Borrower and their respective Subsidiaries, as conducted on the
date hereof.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required
by law to close, provided that when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which commercial banks are not open for dealing in Dollar deposits in
the London interbank market.
"Capital Expenditures": expenditures (including, without
limitation, obligations created under Financing Leases but excluding
payments made thereon, capitalized software and database expenditures,
capitalized investments in service parts and purchase money
Indebtedness in the year in which created but excluding payments made
thereon) of the Borrower and its Subsidiaries (and, for any period
prior to the Closing Date, CCI and its Subsidiaries) in respect of the
purchase or other acquisition of fixed or capital assets (excluding
any such asset acquired (x) in connection with normal replacement and
maintenance programs properly expensed in accordance with GAAP, (y)
with the proceeds of any casualty insurance or condemnation award, or
(z) with the cash proceeds of any asset sale made pursuant to Section
8.6(d), applied or contractually committed to be applied within 180
days from receipt of such proceeds), provided that for purposes of
Section 8.8, Investments made pursuant to Section 8.9 (k) or (l) shall
not be a Capital Expenditure.
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"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit, time deposits, overnight bank deposits,
bankers acceptances and repurchase agreements of any commercial bank
which has capital and surplus in excess of $100,000,000 having
maturities of one year or less from the date of acquisition, (c)
commercial paper of an issuer rated at least A-2 by Standard & Poor's
Ratings Group or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying
an equivalent rating by a nationally recognized rating agency if both
of the two named rating agencies cease publishing ratings of
investments, (d) money market accounts or funds with or issued by
Qualified Issuers, (e) repurchase obligations with a term of not more
than 90 days for underlying securities of the types described in
clause (a) above entered into with any bank meeting the qualifications
specified in clause (b) above and (f) demand deposit accounts
maintained in the ordinary course of business with any bank that is
not a Lender not in excess of $100,000 in the aggregate on deposit
with any such bank or any Lender.
"CCI": as defined in the preamble to this Agreement.
"CCI Asset Contribution": the contribution by CCI, immediately
after the consummation of the Merger, of its assets (other than the
stock of the Borrower) and certain other assets to the Borrower the
contribution of which was permitted by CCI's then existing Contractual
Obligations.
"C/D Assessment Rate": for any day as applied to the Base CD
Rate, the net annual assessment rate (rounded upward to the nearest
1/100th of 1%) determined by Chase to be payable on such day to the
Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of Chase in
the United States.
"C/D Reserve Percentage": for any day as applied to the CD Base
Rate, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor), for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New
York City with deposits exceeding one billion Dollars in respect of
new non-personal time deposits in Dollars in New York City having a
three month maturity and in an amount of $100,000 or more.
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"Change of Control": HMTF, its principals and Affiliates, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and management ("HMTFS") shall cease to have
the power, directly or indirectly, to vote or direct the voting of
securities having a majority of the ordinary voting power for the
election of directors of CCI, provided that the occurrence of the
foregoing events shall not be deemed a Change of Control if (a) at any
time prior to the consummation of an Initial Public Offering, and for
any reason whatever, (i) HMTFS otherwise has the right to designate
(and does so designate) a majority of the board of directors of CCI or
(ii) HMTFS and their employees, directors and officers (the "HMTFS
Group") owns of record and beneficially an amount of common stock of
CCI equal to at least 50% of the amount of common stock of CCI
(adjusted for stock splits, stock dividends and other similar events
on an equitable basis) owned by the HMTFS Group of record and
beneficially as of the Closing Date and such ownership by the HMTFS
Group represents the largest single block of voting securities of CCI
held by any Person or related group for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or (b) at any time after the consummation of an Initial Public
Offering, and for any reason whatever, (i) no "Person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
excluding the HMTFS Group, shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or
indirectly, of more than the greater of (x) 15% of the voting shares
then outstanding and (y) the percentage of the then outstanding voting
stock of CCI owned by the HMTFS Group and (ii) the board of directors
of CCI shall consist of a majority of Continuing Directors.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Chattel Paper: as defined in ss.9-105 of the Uniform Commercial
Code of the State of New York.
"Closing Date": the date on which this Agreement becomes
effective in accordance with Section 6.1.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral": the collective reference to all collateral in which
the Collateral Agent purports to have a security interest pursuant to
the Security Documents.
"Collateral Agent": Chase in its capacity as collateral agent
under the Security Documents.
"Commitment Letter": the commitment letter relating, among other
things, to the Loans made hereunder, dated January 9, 1998, addressed
to the Borrower from Chase and CSI and all exhibits thereto, as the
same may be amended, supplemented or otherwise modified from time to
time.
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"Commitment Percentage": as to any Lender, at any time, the
percentage of the aggregate Revolving Credit Commitments and Term Loan
Commitments constituted by such Lender's Revolving Credit Commitment
and Term Loan Commitment.
"Commitments": the collective reference to the Revolving Credit
Commitments, the Swing Line Commitment, the Term Loan Commitments and
the L/C Commitment; individually, a "Commitment."
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Assets": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, except that there shall be
excluded therefrom cash and Cash Equivalents and equipment and other
fixed assets held for sale.
"Consolidated Cash Interest Expense": for any period, for any
Person on a consolidated basis, the amount of interest paid in cash
during such period on the aggregate principal amount of its
Indebtedness, which amount shall include any such cash interest
expense in respect of Indebtedness under Financing Leases and purchase
money Indebtedness permitted under Section 8.2(e) of such Person net
of cash interest income (such consolidated cash interest expense to
include fees payable on account of letters of credit but to exclude
amortization of debt discount (including discount of liabilities and
reserves established under Accounting Principles Board Opinion No. 16
as in effect on the date hereof) and costs of debt issuance; provided
that for purposes of paragraph (a) of Section 8.1, Consolidated Cash
Interest Expense of such Person for the four consecutive fiscal
quarters ending on or about December 31, 1997 shall be deemed to be
Consolidated Cash Interest Expense of such Person for the three
consecutive fiscal quarters ending on or about December 31, 1997
multiplied by 4/3.
"Consolidated Current Assets": at any date, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Total Current Assets" (or any like caption) on a
consolidated balance sheet of such Person at such date, except that
there shall be excluded therefrom cash and Cash Equivalents and
equipment and other fixed assets held for sale.
"Consolidated Current Liabilities": at any date, with respect to
any Person, the amount which, in conformity with GAAP, would be set
forth opposite the caption "Total Current Liabilities" (or any like
caption) on a consolidated balance sheet of such Person at such date,
except that there shall be excluded therefrom the current portion of
(a) all Loans and, (b) all long-term Indebtedness for borrowed money
(including Financing Leases) in each case, to the extent included
therein.
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"Consolidated EBITDA": for any period, with respect to any
Person, Consolidated Net Income of such Person for such period (A)
plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum
of (i) total income and franchise tax expense, (ii) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions and discounts and other fees and charges associated with
Indebtedness, (iii) depreciation and amortization expense, (iv)
amortization of intangibles including, but not limited to, goodwill
and organization costs (including, with respect to the Borrower, costs
associated with the Offer to Purchase dated October 23, 1996 made by a
subsidiary of CCI to purchase the common stock of the Borrower); (v)
other extraordinary noncash charges (in accordance with GAAP)
(including non-cash currency exchange losses) and (vi) any
extraordinary and unusual losses (including losses on sales of assets
other than inventory sold in the ordinary course of business) and (B)
minus, without duplication and to the extent reflected as a credit or
gain in the statement of such Consolidated Net Income for such period,
the sum of (i) any extraordinary and unusual gains (including gains on
the sales of assets, other than inventory sold in the ordinary course
of business) and (ii) other extraordinary noncash credits or gains (in
accordance with GAAP) (including non-cash currency exchange gains).
"Consolidated Net Income": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Income/(Loss)" (or any like caption) on a
consolidated statement of operations of such Person and its
Subsidiaries for such period.
"Consolidated Senior Debt": at a particular date, with respect to
the Borrower, Consolidated Total Debt less the aggregate outstanding
principal amount of the Senior Subordinated Notes.
"Consolidated Total Debt": at a particular date, with respect to
the Borrower, the aggregate principal amount of Indebtedness
outstanding under this Agreement, Financing Leases, purchase money
Indebtedness and any other Indebtedness for borrowed money of the
Borrower and its Subsidiaries at such date other than Lease
Transaction Obligations.
"Consolidated Working Capital": at any date, for any Person, the
excess of Consolidated Current Assets of such Person at such date over
Consolidated Current Liabilities of such Person at such date.
"Continuing Directors": the directors of CCI on the Closing Date
and each other director, if, in each case, such other director's
nomination for election to the board of directors of CCI is
recommended by a majority of the then Continuing Directors or such
other director receives the vote of HMTFS in his or her election by
the shareholders.
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"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Credit Parties": the collective reference to CCI, the Borrower
and each of their respective Subsidiaries which from time to time is a
party to any Loan Document.
"CSI": Chase Securities Inc.
"Customer Partnerships": certain partnerships with customers of
CCI, in existence on the date hereof or, if created after the date
hereof, which engage in substantially the same business as is engaged
in by such partnerships on the date hereof and entered into subject to
the provisions hereof, of which CCI or its Subsidiaries is a general
partner.
"Default": any of the events specified in Article 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Departing Lender": as defined in Section 6.1(b)(iv).
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower or CCI
other than a Foreign Subsidiary.
"Environmental Laws": any applicable foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained
by a member bank of such System.
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"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Article 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA
of the Borrower and its Subsidiaries for such fiscal year, (ii) the
amount of returned surplus assets of any Plan during such fiscal year
to the extent not included in Consolidated Net Income to determine
Consolidated EBITDA of the Borrower and its Subsidiaries for such
fiscal year, (iii) decreases in Consolidated Working Capital of the
Borrower and its Subsidiaries for such fiscal year, (iv) the amount of
any refund received by the Borrower and its Subsidiaries on taxes paid
by the Borrower and its Subsidiaries, (v) cash dividends, cash
interest and other similar cash payments received by the Borrower in
respect of investments to the extent not included in Consolidated Net
Income to determine Consolidated EBITDA of the Borrower and its
Subsidiaries for such fiscal year, (vi) extraordinary cash gains to
the extent subtracted or otherwise not included in Consolidated Net
Income to determine Consolidated EBITDA of the Borrower and its
Subsidiaries for such fiscal year and (vii) decreases in "long-term
investments in leases" (or any like caption) (calculated in accordance
with GAAP) over (b) the sum, without duplication, of (i) the aggregate
amount of cash Capital Expenditures made by the Borrower and its
Subsidiaries during such fiscal year and permitted hereunder (other
than Capital Expenditures permitted under Section 8.8(b)), (ii)
payments or prepayments of the Term Loans during such fiscal year
other than pursuant to Section 2.10(a), (b) or (c), (iii) the
aggregate amount of payments of principal in respect of any
Indebtedness (other than revolving credit Indebtedness to the extent
the related commitment is not permanently reduced) permitted hereunder
during such fiscal year (other than under this Agreement),
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(iv) increases in Consolidated Working Capital of the Borrower
and its Subsidiaries for such fiscal year, (v) cash interest expense
of the Borrower and its Subsidiaries for such fiscal year, (vi) taxes
actually paid in such fiscal year or to be paid in the subsequent
fiscal year on account of such fiscal year to the extent added to
Consolidated Net Income to determine Consolidated EBITDA of the
Borrower and its Subsidiaries for such fiscal year, (vii)
extraordinary cash losses to the extent added to Consolidated Net
Income to determine Consolidated EBITDA of the Borrower and its
Subsidiaries for such fiscal year, (viii) the amount of all
Investments made in such fiscal year as permitted by clauses (d), (h),
(j) and (k) of Section 8.9, (ix) Investments made pursuant to Section
8.9(l) actually made in such fiscal year or agreed pursuant to a
letter of intent or other definitive agreement to make such Investment
during such fiscal year to be made in the subsequent fiscal year,
provided such Investments shall not be deducted in calculating Excess
Cash Flow in any subsequent year and, for purposes of payments under
Section 2.10(c), shall be added back in the calculation thereof for
such year or any subsequent year (a) if such Investment is terminated
or otherwise not consummated within 270 days of execution of such
letter of intent or other agreement or (b) to the extent such
Investment is not fully made, (x) dividends or other direct payments
paid by the Borrower to or for the benefit of CCI to the extent
permitted by Section 8.7(a) to the extent not subtracted in the
determination of Consolidated Net Income of the Borrower for such
fiscal year and (xi) increases in "long-term investments in leases"
(or any like caption) (calculated in accordance with GAAP).
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Facilities": as defined in the recitals in this Agreement.
"Fee Properties": the collective reference to the real properties
owned in fee by the Borrower described on Part I of Schedule 5.8,
including all buildings, improvements, structures and fixtures now or
subsequently located thereon.
"FinanceCo": CCI/Triad Financial Holding Corporation, a
California corporation.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Foreign Lease Subsidiaries": Tridex Leasing Limited, a United
Kingdom company and TSC Leasing, a division of Triad Systems Canada
Ltd., an Ontario corporation.
"Foreign Subsidiary": any Subsidiary of the Borrower or CCI which
is organized under the laws of any jurisdiction outside of the United
States of America.
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"GAAP": the generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board and the rules and regulations of the Securities and Exchange
Commission, or in such other statements by such other entity as may be
in general use by significant segments of the accounting profession,
which are applicable to the circumstances of the Borrower as of the
date of determination except that for purposes of Section 8.1, GAAP
shall be determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the
audited financial statements referred to in Section 5.1. In the event
that any "Accounting Change" (as defined below) shall occur and such
change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and
the Administrative Agent agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that the criteria for
evaluating the Borrower's financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been
made. Until such time as such an amendment shall have been executed
and delivered by the Borrower, the Administrative Agent and the
Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such
Accounting Changes had not occurred. "Accounting Changes" means:
changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the Securities and Exchange Commission
(or successors thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement made by CCI, the Borrower and the Domestic
Subsidiaries (except FinanceCo) in favor of the Collateral Agent for
the ratable benefit of the Lenders, substantially in the form of
Exhibit B, as the same may be amended, supplemented or otherwise
modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct
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or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the board of directors
of such Person in good faith.
"HMTF": Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated, a Texas
corporation.
"HMTFS": as defined in the definition of "Change of Control".
"HMTFS Group": as defined in the definition of "Change of
Control".
"Indebtedness": of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price
of property or services (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices and accrued expenses incurred in the ordinary
course of business) or which is evidenced by a note, bond, debenture
or similar instrument, (b) all obligations under Interest Rate
Agreements, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of bankers' acceptances
or similar instruments issued or created for the account of such
Person, and (e) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, provided, however,
that the amount of such Indebtedness of any Person described in this
clause (e) shall, for purposes of this Agreement, be deemed to be
equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property or asset
encumbered, as determined by such Person in good faith; provided,
further, that solely for purposes of Section 8.2(m) and (n), Lease
Transaction Obligations shall be deemed to be Indebtedness of the
Borrower and its Subsidiaries.
"Initial Public Offering": means an underwritten public offering
of Capital Stock of CCI pursuant to a registration statement filed
with the Securities and Exchange Commission in accordance with the
Securities Exchange Act of 1933, as amended.
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"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Instrument": as defined in ss.9-105 of the Uniform Commercial
Code of the State of New York.
"Intellectual Property": as defined in Section 5.9.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December to occur
while such Loan is outstanding and, if such Alternate Base Rate Loan
is a Term Loan, the date of each payment of principal thereof, (b) as
to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period and (c) as to any
Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof, after the
first day of such Interest Period as well as the last day of such
Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or, to the extent
available to all Lenders, nine or twelve months, thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of
the immediately preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six or, to the
extent available to all Lenders, nine or twelve months
thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior
to the last day of the then current Interest Period with respect
thereto;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
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(2) no Interest Period shall extend beyond the Revolving
Credit Commitment Termination Date in the case of Revolving
Credit Loans or the date final payment is due on the Term Loans
in the case of Term Loans;
(3) no Interest Period with respect to the Term Loans shall
extend beyond any date upon which repayment of principal thereof
is required to be made pursuant to Section 2.7 if, after giving
effect to the selection of such Interest Period, the aggregate
principal amount of Term Loans with Interest Periods ending after
such date would exceed the aggregate principal amount of Term
Loans permitted to be outstanding after such scheduled repayment;
and
(4) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate
cap or other interest rate hedge arrangement, to or under which the
Borrower is a party or a beneficiary on the date hereof or becomes a
party or a beneficiary after the date hereof, which is entered into in
the ordinary course of business and which is not entered into for
speculative purposes.
"Investments": as defined in Section 8.9.
"Issuer": as defined in the Guarantee and Collateral Agreement.
"Issuing Lender": Chase or any of its Affiliates, each in its
capacity as issuer of each Letter of Credit.
"L/C Commitment": the Issuing Lender's obligation to open Letters
of Credit pursuant to Article 3 of this Agreement.
"L/C Obligation": the obligation of the Borrower to reimburse the
Issuing Lender in accordance with the terms of this Agreement and the
related Letter of Credit Application for any payment made by the
Issuing Lender under any Letter of Credit.
"L/C Participating Interest": with respect to any Letter of
Credit (a) in the case of the Issuing Lender with respect thereto, its
interest in such Letter of Credit and any Letter of Credit Application
relating thereto after giving effect to the granting of participating
interests therein, if any, pursuant hereto and (b) in the case of each
Participating Lender, its undivided participating interest in such
Letter of Credit and any Letter of Credit Application relating
thereto.
"L/C Participation Certificate": a certificate in substantially
the form of Exhibit C.
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"Leased Equipment": computer systems, software, accessories,
upgrades and support, maintenance and data software subscriptions and
third party equipment and/or trade fixtures owned by Triad Financial
and the Foreign Lease Subsidiaries.
"Lease Transaction": leases of Leased Equipment by Triad
Financial and the Foreign Lease Subsidiaries as lessors to third party
customers in the ordinary course of business and the sale of the lease
payments thereon to FinanceCo in exchange for a security interest in
the lease payments, the Chattel Paper and the Leased Equipment;
together, the "Lease Transactions".
"Lease Transaction Obligations": obligations of Triad Financial,
the Foreign Lease Subsidiaries and FinanceCo incurred to finance Lease
Transactions (a) the principal amount of which is computed based upon
a discount of the lease payments due under such Lease Transactions,
(b) which are unsecured or secured solely by Leased Equipment, Chattel
Paper and/or lease payments due under such Lease Transactions that are
not presented on CCI's consolidated balance sheet and (c) which are
treated as "off-balance sheet financing" under GAAP; provided that
obligations of FinanceCo shall be deemed to be Lease Transaction
Obligations only to the extent that the proceeds of such obligations
are used to purchase from Triad Financial lease payments arising in
Lease Transactions. It is the intention of the parties that a Lease
Transaction Obligation may be created by FinanceCo only to the extent
that it is created on a back-to-back basis with a corresponding Lease
Transaction Obligation created by Triad Financial and that any such
Lease Transaction Obligation created by FinanceCo is recourse to
FinanceCo only to the extent that the corresponding Lease Transaction
Obligation created by Triad Financial is recourse to Triad Financial.
"Leased Properties": the collective reference to the real
properties leased by the Borrower and its Subsidiaries described on
Part II of Schedule 5.20 including all buildings, improvements,
structures and fixtures now or subsequently located thereon and owned
or leased by the Borrower.
"Lenders": as defined in the recitals to this Agreement.
"Letter of Credit": any Standby L/C or Trade L/C, collectively,
the "Letters of Credit".
"Letter of Credit Application": with respect to (a) a Standby
L/C, a Standby L/C Application and (b) a Trade L/C, a Trade L/C
Application; collectively, the "Letter of Credit Applications."
"Letter of Credit Outstandings": at any date, the sum of (a) the
aggregate amount then available to be drawn under all outstanding
Letters of Credit and (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
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"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": the collective reference to this Agreement, any
Notes, the Letters of Credit, the Letter of Credit Applications and
the Guarantee and Collateral Agreement.
"Material Adverse Effect": any event, development or circumstance
that has had or could reasonably be expected to have a material
adverse effect on (a) the business, assets, property, condition
(financial or otherwise) or prospects of CCI, the Borrower and their
Subsidiaries taken as a whole, (b) the ability of CCI, the Borrower
and their Subsidiaries taken as a whole to perform their respective
obligations under any of the Loan Documents or the Transaction
Documents or (c) the validity or enforceability of this Agreement or
any of the other Loan Documents, the Transaction Documents or the
rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including,
without limitation, friable asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Merger": the merger of CCI Acquisition Co., a Wholly-Owned
Subsidiary of CCI, with and into the Borrower, as of February 27,
1997, pursuant to the Agreement and Plan of Merger, dated as of
October 17, 1996, among CCI, the Borrower, and CCI Acquisition Co.
"Mortgages": the collective reference to each of the mortgages
and deeds of trust to be executed and delivered by the Borrower and
its Subsidiaries pursuant to Sections 7.9 and 7.10, in a form
determined by Administrative Agent as necessary or desirable to create
a valid and enforceable first mortgage Lien securing the obligations
and liabilities of the Borrower or any guarantor under the Loan
Documents, as the same may be amended, supplemented, replaced,
restated, or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
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"Net Cash Proceeds": (a) in connection with any Asset Sale
(including any sale and leaseback of assets and any sale of accounts
receivable in connection with a receivables financing transaction) the
cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and
when received) of such Asset Sale net of all reasonable attorneys'
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums, required debt payments (other than pursuant
hereto) and other customary fees actually incurred and satisfactorily
documented in connection therewith and net of taxes paid or reasonably
expected to be payable as a result thereof and net of purchase price
adjustments reasonably expected to be payable in connection therewith
and (b) in connection with any issuance by CCI or any of its
Subsidiaries of equity or debt securities or instruments or any
Permitted Issuance or the incurrence of loans other than Indebtedness
permitted by Section 8.2 or Section 11.6(i), the cash proceeds
received from such issuance, net of all reasonable investment banking
fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses, actually incurred
and satisfactorily documented in connection therewith; provided
however that, with respect to any issuance of debt instruments or
securities as described in clause (b) above, only in the event that
such net cash proceeds are used to refinance any Indebtedness
permitted by this Agreement, then such net cash proceeds shall not
constitute "Net Cash Proceeds" for the purpose of this Agreement.
"Nonconsenting Lender": as defined in Section 4.9.
"Non-Excluded Taxes": as defined in Section 4.7(a).
"Non-Funding Lender": as defined in Section 4.4(c).
"Notes": the collective reference to the Revolving Credit Notes,
the Swing Line Note and the Term Notes.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to
the Administrative Agent or to the Lenders, whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any Notes, any other Loan Documents
or any Interest Rate Agreement entered into with a Lender pursuant to
Section 7.11 and any other document made, delivered or given in
connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of this
Agreement) or otherwise.
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Participant": as defined in Section 12.6(b).
"Participating Lender": any Revolving Credit Lender (other than
the Issuing Lender) with respect to its L/C Participating Interest in
a Letter of Credit.
"Perfection Certificate": a certificate substantially in the form
of Exhibit H.
"Permitted Acquisition": the acquisition by the Borrower and its
Subsidiaries of businesses related to their respective Businesses, as
approved by the board of directors of the Borrower.
"Permitted Issuance": (a) the issuance by CCI of shares of
Capital Stock as dividends on issued and outstanding Capital Stock of
the same class of CCI or pursuant to any dividend reinvestment plan,
(b) the issuance by CCI of options or other equity securities of CCI
to outside directors, members of management or employees of CCI, the
Borrower or any Subsidiary of the Borrower, (c) the issuance of
securities as interest or dividends on pay-in-kind debt or preferred
equity securities permitted hereunder and under the Security
Documents, (d) the issuance by CCI of shares of Capital Stock in
connection with Permitted Acquisitions, (e) the issuance to CCI by the
Borrower of its Capital Stock or the issuance to the Borrower or any
Subsidiary (or any director, with respect to directors' qualifying
shares) by any Subsidiary of the Borrower of any of their respective
Capital Stock, in each case with respect to this clause (e) to the
extent such Capital Stock is pledged to the Administrative Agent
pursuant to the Guarantee and Collateral Agreement (provided that only
65% of the Capital Stock of a Foreign Subsidiary is required to be so
pledged), (f) cash payments made in lieu of issuing fractional shares
of CCI Capital Stock in an aggregate amount not to exceed $100,000,
(g) the issuance by CCI of shares of Capital Stock of CCI to infuse
additional capital into CCI in an aggregate amount not to exceed
$10,000,000 and (h) the issuance by CCI of the CCI common stock
pursuant to the terms and conditions of the HMTF Securities Purchase
Agreement as in effect on the date hereof.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledged Notes": as defined in the Guarantee and Collateral
Agreement.
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"Pledged Stock": as defined in the Guarantee and Collateral
Agreement.
"Pro Forma Balance Sheet": as defined in Section 5.1(d).
"Properties": as defined in Section 5.16.
"Qualified Issuer": any commercial bank (a) which has capital and
surplus in excess of $100,000,000 and (b) the outstanding long-term
debt securities of which are rated at least A-2 by Standard & Poor's
Ratings Group or at least P-2 by ▇▇▇▇▇'▇ Investors Service, Inc., or
carry an equivalent rating by a nationally recognized rating agency if
both of the two named rating agencies cease publishing ratings of
investments.
"Refunded Swing Line Loans": as defined in Section 2.13(c).
"Register": as defined in Section 12.6(d).
"Regulation G": Regulation G of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA and the regulations thereunder, other than those
events as to which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Required Lenders": at any time, Lenders the Total Credit
Percentages of which aggregate at least a majority.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": as to any Person, the chief executive
officer, the president, the chief financial officer, any vice
president, the treasurer, any assistant treasurer, the secretary or
any assistant secretary of such Person.
"Restricted Payments": as defined in Section 8.7.
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"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans to the Borrower pursuant
to Section 2.1 and to participate in Swing Line Loans and Letters of
Credit in an aggregate amount not to exceed at any one time
outstanding the amount set forth opposite such Revolving Credit
Lender's name in Schedule 1.1 under the heading "Revolving Credit
Commitment", as such amount may be reduced from time to time as
provided herein; collectively, as to all the Revolving Credit Lenders,
the "Revolving Credit Commitments."
"Revolving Credit Commitment Percentage": as to any Revolving
Credit Lender, the percentage of the aggregate Revolving Credit
Commitments constituted by its Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Commitment Termination Date.
"Revolving Credit Commitment Termination Date": the earliest of
(a) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the date upon which the Term Loans shall be
paid in full and (c) the date upon which the Revolving Credit
Commitments shall be terminated pursuant hereto (including any
termination pursuant to Article 9).
"Revolving Credit Facility": as defined in the recitals to this
Agreement.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment or that holds outstanding Revolving Credit Loans or L/C
Participating Interests hereunder.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined
in Section 2.1.
"Revolving Credit Note" and "Revolving Credit Notes": as defined
in Section 2.2.
"Security Documents": the Guarantee and Collateral Agreement and
any other collateral security document delivered to the Administrative
Agent pursuant to Section 7.9, 7.10 or 7.12; individually a "Security
Document."
"Senior Subordinated Indebtedness": unsecured senior subordinated
Indebtedness of the Borrower (including the Senior Subordinated Notes
and any permanent refinancing thereof); provided that such
indebtedness has (i) no maturity, amortization, mandatory redemption
or purchase option (other than with asset sale proceeds, subject to
the provisions of this Agreement, or following a change of control) or
sinking fund payment prior to the tenth anniversary of the Closing
Date, (ii) no financial maintenance covenants, (iii) such other terms
and conditions (including, without limitation, interest rate, events
of default, subordination and
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covenants) as shall be reasonably satisfactory to the Administrative
Agent and (iv) any permanent refinancing shall not be less favorable
to the Borrower and the Lenders as the Senior Subordinated Notes
financing taken as a whole.
"Senior Subordinated Note Indenture": the Indenture dated as of
February 10, 1998 entered into by the Borrower in connection with the
issuance of the Senior Subordinated Notes, together with all
instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with Section 8.18.
"Senior Subordinated Notes": as defined in the recitals hereto.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a
particular date, that on such date, (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair saleable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital.
"Standby L/C": an irrevocable letter of credit issued by the
Issuing Lender pursuant to this Agreement for the account of the
Borrower in respect of obligations of the type described in Section
3.1.
"Standby L/C Application": as defined in Section 3.2.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person; provided that the Customer Partnerships shall be deemed
Subsidiaries of the Borrower solely for purposes of Sections 8.2, 8.4
and 8.9 only. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
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"Swing Line Commitment": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to Section 2.13.
"Swing Line Lender": Chase in its capacity as provider of the
Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit D.
"Swing Line Loans": as defined in Section 2.13.
"Swing Line Note": as defined in Section 2.13(b).
"Term Loan Facility": as defined in the recitals to this
Agreement.
"Term Loan" and "Term Loans": as defined in Section 2.6.
"Term Loan Commitment": as to any Term Loan Lender, its
obligation to make a Term Loan to the Borrower pursuant to Section 2.6
of this Agreement in an aggregate amount not to exceed the amount set
forth opposite such Term Loan Lender's name in Schedule 1.1 under the
heading "Term Loan Commitment."
"Term Loan Commitment Percentage": as to any Term Loan Lender,
the percentage of the aggregate Term Loan Commitments constituted by
its Term Loan Commitment or, following the Closing Date, the
percentage of the aggregate outstanding Term Loans constituted by its
Term Loan.
"Term Loan Lender": any Lender having a Term Loan Commitment
hereunder or that holds outstanding Term Loans.
"Term Note" and "Term Notes": as defined in Section 2.7(a).
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments and
outstanding Term Loans then constituted by its Revolving Credit
Commitment and outstanding Term Loans (or, if the Revolving Credit
Commitments have terminated or expired, the percentage of the
aggregate outstanding Revolving Credit Loans, outstanding Term Loans
and risk interests in the Letter of Credit Outstandings and Swing Line
Loans then constituted by its outstanding Revolving Credit Loans,
outstanding Term Loans and risk interest in Letter of Credit
Outstandings and Swing Line Loans).
"Trade L/C": a commercial documentary letter of credit issued by
the Issuing Lender pursuant to Section 3.1 for the account of the
Borrower for the purchase of goods in the ordinary course of business.
"Trade L/C Application": as defined in Section 3.2.
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"Tranche": the reference to Eurodollar Loans the Interest Periods
with respect to all of which begin on the same date and end on the
same later date (whether or not such Loans shall originally have been
made on the same day); Tranches may be identified as "Eurodollar
Tranches".
"Transaction Documents": the collective reference to this
Agreement, the Senior Subordinated Notes and the Senior Subordinated
Note Indenture, and all other agreements, instruments or certificates
executed in connection with the Transactions, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with Section 8.17.
"Transactions": the collective reference to the amendment and
restatement of the Existing Credit Agreement pursuant to this
Agreement and the issuance of the Senior Subordinated Notes.
"Transferee": as defined in Section 12.6(f).
"Triad Financial": Triad Systems Financial Corporation, a
California corporation.
"Type": as to any Loan, its nature as an Alternate Base Rate Loan
or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any revisions thereof.
"U.S. Tax Compliance Certificate": as defined in Section
4.7(b)(ii).
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of
which such Person owns, directly or indirectly, all of the Capital
Stock of such Subsidiary other than directors' qualifying shares or
any shares held by nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
any Note or any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Note, and any certificate or other document
made or delivered pursuant hereto, accounting terms relating to CCI and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
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ARTICLE 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Credit Lender severally agrees to make revolving credit
loans (each, a "Revolving Credit Loan", collectively, "Revolving Credit Loans")
to the Borrower from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding, when added to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of all Letter
of Credit Outstandings and outstanding Swing Line Loans, not to exceed the
amount of such Revolving Credit Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.3 and 2.11.
(c) On the Closing Date the Revolving Credit Loans and Revolving Credit
Commitments under the Existing Credit Agreement, as amended and restated hereby,
shall be continued hereunder.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the request to
the Administrative Agent by any Revolving Credit Lender, in order to evidence
such Lender's Revolving Credit Loans the Borrower will execute and deliver to
such Lender a promissory note substantially in the form of Exhibit A-1, with
appropriate insertions as to payee, date and principal amount (each, as amended,
supplemented, replaced or otherwise modified from time to time, a "Revolving
Credit Note"), payable to the order of such Revolving Credit Lender and in a
principal amount equal to the lesser of (a) the amount of the initial Revolving
Credit Commitment of such Revolving Credit Lender and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Revolving Credit
Lender. Each Revolving Credit Lender is hereby authorized to record the date,
Type and amount of each Revolving Credit Loan made by such Revolving Credit
Lender, each continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto, on the schedules annexed to and constituting a part of its
Revolving Credit Note, and any such recordation shall, in the absence of
manifest error and to the extent permitted by applicable law, constitute prima
facie evidence of the accuracy of the information so recorded, provided that the
failure by any Revolving Credit Lender to make any such recordation, or any
error therein, shall not affect any of the obligations of the Borrower under
such Revolving Credit Note or this Agreement. Any Revolving Credit Note shall
(x) be dated the Closing Date, (y) be stated to mature on the Revolving Credit
Commitment Termination Date and (z) provide for the payment of interest in
accordance with Section 4.1.
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2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow under
the Revolving Credit Commitments during the Revolving Credit Commitment Period
on any Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice may be telephonic and must be received by
the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, otherwise), specifying (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Loans, Alternate Base Rate Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Any such telephonic borrowing notice shall be
confirmed promptly by a written borrowing notice to the Administrative Agent,
delivered by hand or by telecopy. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (A) in the case of Alternate Base
Rate Loans, $500,000 or a whole multiple of $100,000 in excess thereof (or, if
the then Available Revolving Credit Commitments are less than $500,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $1,000,000 or a whole
multiple of $250,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit
Lender thereof. Each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
Section 12.2 prior to 12:30 P.M., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Revolving Credit Lenders and in like funds as received by the
Administrative Agent.
2.4 Commitment Fee; Administrative Agent Fees. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Revolving Credit Lender
a commitment fee for the period from and including the first day of the
Revolving Credit Commitment Period to the Revolving Credit Commitment
Termination Date, computed at the rate of 1/2 of 1% per annum on the average
daily Available Revolving Credit Commitment of such Revolving Credit Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Revolving Credit
Commitment Termination Date; provided that such commitment fee shall be subject
to reduction in accordance with the definition of "Applicable Margin".
(b) The Borrower shall pay to Chase, for its account, such fees as have
been agreed to in writing by the Borrower and Chase, in the amounts and on the
dates set forth in such writing.
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2.5 Termination or Reduction of Revolving Credit Commitments. (a) The
Borrower shall have the right, upon not less than five Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, reduce the unutilized portion of the amount of the Revolving
Credit Commitments, provided that (i) the Revolving Credit Commitments shall not
be terminated if any Letters of Credit or Swing Line Loans are outstanding and
(ii) any such termination of the Revolving Credit Commitments shall be
accompanied by prepayment in full of the Revolving Credit Loans, Swing Line
Loans and L/C Obligations then outstanding, together with accrued interest
thereon to the date of such prepayment, cancellation of all Letters of Credit
(unless cash collateralized in accordance with the last sentence of this
paragraph) and the payment of any unpaid commitment fee then accrued hereunder.
Any such partial reduction shall be in an amount of $500,000, or a whole
multiple of $100,000 in excess thereof, and shall reduce permanently the amount
of the Revolving Credit Commitments then in effect and shall further include any
amounts due in respect thereof under Section 4.8. Upon termination of the
Revolving Credit Commitments, any Letter of Credit then outstanding which has
been fully cash collateralized upon terms reasonably satisfactory to the
Administrative Agent and the Issuing Lender shall no longer be considered a
"Letter of Credit" as defined in Section 1.1, and any L/C Participating Interest
heretofore granted by the Issuing Lender to the Revolving Credit Lenders in such
Letter of Credit shall, at the election of the Issuing Lender, be deemed
terminated but the letter of credit fees payable under Section 3.3 shall
continue to accrue to the Issuing Lender with respect to such Letter of Credit
until the expiry thereof.
(b) In the case of any reduction of the Revolving Credit Commitments
hereunder, to the extent, if any, that the sum of the Revolving Credit Loans,
Swing Line Loans and the Letter of Credit Outstandings exceeds the Revolving
Credit Commitments as so reduced, the Borrower shall make a prepayment equal to
such excess amount, the proceeds of which shall be applied first, to payment of
the Swing Line Loans then outstanding, second, to payment of the Revolving
Credit Loans then outstanding, third, to payment of any L/C Obligations then
outstanding and last, to cash collateralize any outstanding Letter of Credit on
terms reasonably satisfactory to the Administrative Agent and the Issuing
Lender.
(c) The Revolving Credit Commitments once terminated or reduced may not be
reinstated.
2.6 Term Loans. (a) Subject to the terms and conditions hereof, each Term
Loan Lender severally agrees to make a term loan (a "Term Loan", together the
"Term Loans"), through the amendment, restatement and continuation described in
paragraph (b) below, on the Closing Date in an aggregate principal amount set
forth opposite such Lender's name in Schedule 1.1 under the heading "Term Loan
Commitment". The Term Loans may from time to time be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with Section
2.8.
(b) On the Closing Date, the Term Loans outstanding under the Existing
Credit Agreement, after giving effect to the repayment described in Section
6.1(b) hereunder, as amended and restated hereby, shall continue outstanding.
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2.7 Term Notes. (a) The Borrower agrees that, upon the request to the
Administrative Agent by any Term Loan Lender, in order to evidence such Lender's
Term Loan the Borrower will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit A-2 (each, as amended, supplemented,
replaced or otherwise modified from time to time, a "Term Note"), with
appropriate insertions therein as to payee, date and principal amount, payable
to the order of such Term Loan Lender and in a principal amount equal to the
amount set forth opposite such Term Loan Lender's name on Schedule 1.1 under the
heading "Term Loan Commitment." Each Term Loan Lender is hereby authorized to
record the date, Type and amount of its Term Loan, each continuation thereof,
each conversion of all or a portion thereof to another Type, the date and amount
of each payment or prepayment of principal of its Term Loan and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto, on
the schedules annexed to and constituting a part of its Term Note, and any such
recordation shall, in the absence of manifest error and to the extent permitted
by applicable law, constitute prima facie evidence of the accuracy of the
information so recorded, provided that the failure by any Term Loan Lender to
make any such recordation, or any error therein, shall not affect any of the
obligations of the Borrower under such Term Note or this Agreement. Any Term
Note shall (i) be dated the Closing Date, (ii) be payable as provided in Section
2.7(b) and (iii) provide for the payment of interest in accordance with Section
4.1.
(b) The aggregate Term Loans of all the Term Loan Lenders shall be payable
in 17 consecutive quarterly installments on the dates and in a principal amount
equal to the amount set forth below (together with all accrued interest thereon)
opposite the applicable installment date (or, if less, the aggregate amount of
the Term Loans then outstanding):
Installment Amount
----------- -------
March 31, 1999 $2,000,000
June 30, 1999 2,000,000
September 30, 1999 2,000,000
December 31, 1999 2,500,000
March 31, 2000 2,500,000
June 30, 2000 2,500,000
September 30, 2000 2,500,000
December 31, 2000 3,000,000
March 31, 2001 3,000,000
June 30, 2001 3,000,000
September 30, 2001 3,000,000
December 31, 2001 3,500,000
March 31, 2002 3,500,000
June 30, 2002 3,500,000
September 30, 2002 3,500,000
December 31, 2002 4,000,000
March 31, 2003 4,000,000
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2.8 Procedure for Term Loan Borrowing; Repayment of Loans. (a) The Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
one Business Day prior to the Closing Date) requesting that the Term Loan
Lenders make the Term Loans on the Closing Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Loan Lender thereof. On the Closing Date each Term Loan Lender
shall make available to the Administrative Agent at its office specified in
Section 12.2 an amount in immediately available funds equal to the Term Loan to
be made by such Term Loan Lender. The Administrative Agent shall on such date
credit the account of the Borrower on the books of such office of the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders.
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of: (i) each Revolving Credit Lender, the
then unpaid principal amount of each Revolving Credit Loan of such Lender, on
the Revolving Credit Commitment Termination Date; (ii) the Swing Line Lender,
the then unpaid principal amount of the Swing Line Loans, on the Revolving
Credit Commitment Termination Date; and (iii) each Term Loan Lender, such Term
Loan Lender's Term Loan Commitment Percentage of the amounts specified in
Section 2.7(b) (or, if less, the aggregate amount of the Term Loans of such Term
Loan Lender then outstanding), on the dates specified in Section 2.7(b) (or such
earlier date on which the Term Loans become due and payable pursuant to Article
9). The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 4.1.
(c) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
Section 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(c) shall, in the absence of manifest error
and to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any
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Lender or the Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
2.9 Optional Prepayments. (a) The Borrower may, at any time and from time
to time, prepay the Loans, in whole or in part, without premium or penalty, upon
at least three Business Days' (or one Business Day in the case of the payment of
Alternate Base Rate Loans) irrevocable notice (no later than 12:00 noon, New
York City time, on such day) to the Administrative Agent, specifying the date
and amount of prepayment and whether the prepayment is of (i) Eurodollar Loans,
Alternate Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each and (ii) Term Loans, Revolving Credit
Loans or a combination thereof, and if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative Agent
shall promptly notify each Term Loan Lender or Revolving Credit Lender, as the
case may be, thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with, in
the case of prepayments of the Term Loans only, accrued interest to such date on
the amount prepaid.
(b) With respect to optional prepayments of the Term Loans the first
$10,000,000 of such optional prepayments of the Term Loans shall be applied in
such order as the Borrower may elect and, with respect to optional prepayments
in excess of such $10,000,000 shall be applied to reduce the then remaining
installments of the Term Loans, pro rata based upon the then remaining number of
installments of such Term Loans, after giving effect to all prior reductions
thereto (i.e., each then remaining installment of the Term Loans shall be
reduced by an amount equal to the aggregate amount to be applied to the Term
Loans divided by the number of the then remaining installments for such Term
Loans); provided, that if the amount to be applied to any installment as
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence). Amounts prepaid on account of the Term
Loans may not be reborrowed. Partial prepayments shall be in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
and shall include any amounts due in respect thereof under Section 4.8.
2.10 Mandatory Prepayments and Revolving Credit Commitment Reductions. (a)
If, subsequent to the Closing Date, unless the Required Lenders and the Borrower
shall otherwise agree, CCI or any of its Subsidiaries (including the Borrower)
shall issue any class of Capital Stock other than a Permitted Issuance or incur
any Indebtedness other than any Indebtedness permitted pursuant to Section 8.2
(excluding Indebtedness to refinance the Senior Subordinated Notes unless there
are any Net Cash Proceeds after giving effect to such refinancing) or 11.6(i),
100% of the Net Cash Proceeds thereof shall on the first Business Day after
receipt, be applied toward the prepayment of the Loans and reduction of
Commitments as set forth in paragraph (d) of this Section 2.10.
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(b) Unless the Required Lenders and the Borrower shall otherwise agree, if
CCI or any of its Subsidiaries (including the Borrower) shall receive Net Cash
Proceeds from any Asset Sale (including the sale and leaseback of assets) such
Net Cash Proceeds shall, on the first Business Day after receipt, be applied
toward the prepayment of the Loans and reduction of Commitments as set forth in
paragraph (d) of this Section 2.10.
(c) Unless the Required Lenders and the Borrower shall otherwise agree, if
for any fiscal year, commencing with the fiscal year ending September 30, 1998
there shall be Excess Cash Flow for such fiscal year (or, with respect to the
first such fiscal year only, for the period from the Closing Date to the end of
such fiscal year), 50% of such Excess Cash Flow shall be applied toward
prepayment of the Loans and reduction of the Commitments as set forth in
paragraph (d) of this Section 2.10. Each such prepayment shall be made on or
before the date which is seven Business Days after the earlier of (A) the date
on which the financial statements referred to in Section 7.1(a) are required to
be delivered to the Lenders and (B) the date on which said financial statements
are actually delivered. In addition, no later than three Business Days following
the date that any amount deducted from Excess Cash Flow is required to be
returned to Excess Cash Flow as a result of the proviso to clause (b)(ix) of the
definition of "Excess Cash Flow", 50% of such amount shall be applied toward
payment of the Loans and reduction of the Commitments as set forth in paragraph
(d). Notwithstanding the foregoing, the Borrower shall not be required to make
any prepayment pursuant to this paragraph (c) in respect of Excess Cash Flow for
any fiscal year if the ratio of Consolidated Total Debt of the Borrower and its
Subsidiaries on the last day of such fiscal year to Consolidated EBITDA of the
Borrower and its Subsidiaries for such fiscal year is less than 2.50 to 1.00.
(d) All mandatory prepayments shall be applied first to the Term Loans and
second to the permanent reduction of the Revolving Credit Commitments. The
application of prepayments referred to in the preceding sentence shall be made
first to Alternate Base Rate Loans and second to Eurodollar Loans. The amount of
each principal prepayment of Term Loans shall be applied to reduce the then
remaining installments of the Term Loans, pro rata based upon the then remaining
number of installments of such Term Loans after giving effect to all prior
reductions thereto (i.e., each then remaining installment of the Term Loans
shall be reduced by an amount equal to the aggregate amount to be applied to the
Term Loans divided by the number of the then remaining installments for such
Term Loans); provided, that if the amount to be applied to any installment as
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence). Amounts prepaid on account of the Term
Loans may not be reborrowed.
(e) If at any time the sum of the Revolving Credit Loans, Swing Line Loans
and the Letter of Credit Outstandings exceeds the Revolving Credit Commitments
(including at any time after any reduction of the Revolving Credit Commitments
pursuant to Section 2.5 or this Section 2.10), the Borrower shall make a payment
in the amount of such excess which payment shall be applied in the order set
forth in Section 2.5(b). To the extent that after
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giving effect to any prepayment of the Loans required by the preceding sentence,
the sum of the Revolving Credit Loans, Swing Line Loans and Letter of Credit
Outstandings exceed the Revolving Credit Commitments, the Borrower shall,
without notice or demand, immediately cash collateralize the then outstanding
L/C Obligations in an amount equal to such excess upon terms reasonably
satisfactory to the Administrative Agent.
(f) If at any time the Borrower or any Subsidiary shall receive any cash
proceeds of any casualty or condemnation in excess of $2,000,000 permitted by
Section 8.6(c), such proceeds shall be deposited with the Administrative Agent
who shall hold such proceeds in a cash collateral account reasonably
satisfactory to it. From time to time upon request, the Administrative Agent
will release such proceeds to the Borrower or such Subsidiary, as necessary, to
pay for replacement or rebuilding of the assets lost or condemned. If such
assets are not replaced or rebuilt within one year (subject to reasonable
extension for force majeure or weather delays) following the condemnation or
casualty or if the Borrower fails to notify the Administrative Agent in writing
on or before 180 days after such casualty or condemnation that the Borrower
shall commence the replacement or rebuilding of such asset, then, in either
case, the Administrative Agent may apply any amounts in the cash collateral
account to the repayment of the Loans in accordance with Section 2.10(d).
(g) The provisions of this Section 2.10 shall not be in derogation of any
other covenant or obligation of the Borrower and its Subsidiaries under the Loan
Documents and shall not be construed as a waiver of, or a consent to departure
from, any such covenant or obligation.
(h) Notwithstanding the foregoing provisions of this Section 2.10, if at
any time the mandatory prepayment of the Term Loans pursuant to this Agreement
would result, after giving effect to the procedures set forth in this Agreement,
in the Borrower incurring breakage costs and other Eurodollar Loans related
costs under Section 4.5, 4.6 or 4.7 as a result of Eurodollar Loans being
prepaid other than on the last day of an Interest Period applicable thereto
("Affected Eurodollar Loans") which breakage costs are required to be paid
pursuant to Section 4.8, then, the Borrower may so long as no Default or Event
of Default shall have occurred and be continuing, in its sole discretion,
initially deposit a portion (up to 100%) of the amounts that otherwise would
have been paid in respect to the Affected Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount of
Affected Eurodollar Loans not immediately prepaid) to be held as security for
the obligations of the Borrower to make such mandatory prepayment pursuant to a
cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent, with such cash collateral to be
directly applied upon the first occurrence (or occurrences) thereafter of the
last day of an Interest Period applicable to the relevant Term Loan that is a
Eurodollar Loan (or such earlier date or dates as shall be requested by the
Borrower), to repay an aggregate principal amount of such Term Loan equal to the
Affected Eurodollar Loans not initially repaid pursuant to this sentence.
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2.11 Conversion and Continuation Options. (a) The Borrower may elect from
time to time to convert Eurodollar Loans to Alternate Base Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that, unless the Borrower elects to deposit with the
Administrative Agent the amount of any breakage costs and other Eurodollar Loan
related costs to be incurred by the Borrower under this Agreement with respect
to the prepayment or conversion of such Eurodollar Loan prior to the end of an
Interest Period, any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time to convert Alternate Base Rate Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Term Loan Lender or Revolving Credit Lender, as the case may be, thereof.
All or any part of outstanding Eurodollar Loans and Alternate Base Rate Loans
may be converted as provided herein, provided that (i) no Alternate Base Rate
Loan may be converted into a Eurodollar Loan when any Default or Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) any such conversion may only be made if, after giving effect thereto,
Section 2.12 shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) if, after giving
effect thereto, Section 2.12 would be contravened and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Eurodollar Loans shall be automatically converted to Alternate Base
Rate Loans on the last day of such then expiring Interest Period.
2.12 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $250,000 in excess thereof and so that there shall not be more than
10 Eurodollar Tranches at any one time outstanding.
2.13 Swing Line Commitment. (a) Subject to the terms and conditions hereof,
the Swing Line Lender agrees to make swing line loans (individually, a "Swing
Line Loan"; collectively, the "Swing Line Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000, provided that at
no time may the sum of the Swing Line Loans, the Revolving Credit Loans and
Letter of Credit Outstandings exceed the Revolving Credit Commitments. During
the Revolving Credit Commitment Period, the Borrower may use the Swing Line
Commitment by borrowing, prepaying the Swing Line
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Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. All Swing Line Loans shall be made as Alternate Base Rate
Loans and shall not be entitled to be converted into Eurodollar Loans. The
Borrower shall give the Swing Line Lender irrevocable notice (which notice may
be telephonic and must be received by the Swing Line Lender prior to 1:00 p.m.,
New York City time) on the requested Borrowing Date specifying the amount of the
requested Swing Line Loan which shall be in an aggregate minimum amount of
$150,000 or a whole multiple of $25,000 in excess thereof. Any such telephonic
borrowing notice shall be confirmed promptly by a written borrowing notice to
the Administrative Agent, delivered by hand or by telecopy. The proceeds of the
Swing Line Loan will be made available by the Swing Line Lender to the Borrower
at the office of the Swing Line Lender by 3:00 p.m. on the Borrowing Date by
crediting the account of the Borrower at such office with such proceeds. The
Borrower may at any time and from time to time, prepay the Swing Line Loans, in
whole or in part, without premium or penalty, by notifying the Swing Line Lender
prior to 1:00 p.m. on any Business Day of the date and amount of prepayment. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $150,000 or a whole multiple of $25,000 in excess
thereof.
(b) The Borrower agrees that, upon the request to the Administrative Agent
by the Swing Line Lender, in order to evidence the Swing Line Loans the Borrower
will execute and deliver to the Swing Line Lender a promissory note
substantially in the form of Exhibit A-3, with appropriate insertions (as the
same may be amended, supplemented, replaced or otherwise modified from time to
time, the "Swing Line Note"), payable to the order of the Swing Line Lender and
representing the obligation of the Borrower to pay the amount of the Swing Line
Commitment or, if less, the unpaid principal amount of the Swing Line Loans,
with interest thereon as prescribed in Section 4.1. The Swing Line Lender is
hereby authorized to record the Borrowing Date, the amount of each Swing Line
Loan and the date and amount of each payment or prepayment of principal thereof,
on the schedule annexed to and constituting a part of the Swing Line Note and
any such recordation shall, in the absence of manifest error and to the extent
permitted by applicable law, constitute prima facie evidence of the accuracy of
the information so recorded, provided that the failure by the Swing Line Lender
to make any such recordation shall not affect any of the obligations of the
Borrower under such Swing Line Note or this Agreement. Any Swing Line Note shall
(a) be dated the Closing Date, (b) be stated to mature on the Revolving Credit
Commitment Termination Date and (c) bear interest for the period from the date
thereof until paid in full on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum determined as
provided in, and payable as specified in, Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion
may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line
Lender to act on its behalf) request each Revolving Credit Lender including the
Swing Line Lender, to make a Revolving Credit Loan in an amount equal to such
Lender's Revolving Credit Commitment Percentage of the amount of the Swing Line
Loans outstanding on the date such notice is given (the "Refunded Swing Line
Loans"). Unless any of the events described in paragraph (f) of Article 9 shall
have occurred with respect to the Borrower (in which event the procedures of
paragraph (e) of this Section 2.13 shall apply) each Revolving Credit
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Lender shall make the proceeds of its Revolving Credit Loan available to the
Administrative Agent for the account of the Swing Line Lender at the office of
the Administrative Agent specified in Section 12.2 prior to 12:00 Noon (New York
City time) in funds immediately available on the Business Day next succeeding
the date such notice is given. The proceeds of such Revolving Credit Loans shall
be immediately applied to repay the Refunded Swing Line Loans. Effective on the
day such Revolving Credit Loans are made, the portion of the Swing Line Loans so
paid shall no longer be outstanding as Swing Line Loans, shall no longer be due
under any Swing Line Note and shall be due under the respective Revolving Credit
Loans of the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitment Percentages. The Borrower authorizes the Swing Line
Lender to charge the Borrower's accounts with the Administrative Agent (up to
the amount available in each such account) in order to immediately pay the
amount of such Refunded Swing Line Loans to the extent amounts received from the
Revolving Credit Lenders are not sufficient to repay in full such Refunded Swing
Line Loans.
(d) Notwithstanding anything herein to the contrary, the Swing Line Lender
shall not be obligated to make any Swing Line Loans if the conditions set forth
in Section 6.2 have not been satisfied.
(e) If prior to the making of a Revolving Credit Loan pursuant to paragraph
(c) of Section 2.13 one of the events described in paragraph (f) of Article 9
shall have occurred and be continuing with respect to the Borrower, each
Revolving Credit Lender will, on the date such Revolving Credit Loan was to have
been made pursuant to the notice in Section 2.13(c), purchase an undivided
participating interest in the Swing Line Loans in an amount equal to (i) its
Revolving Credit Commitment Percentage times (ii) the Swing Line Loans
outstanding as of such date. Each Revolving Credit Lender will immediately
transfer to the Swing Line Lender, in immediately available funds, the amount of
its participation, and upon receipt thereof the Swing Line Lender will deliver
to such Revolving Credit Lender a Swing Line Loan Participation Certificate
dated the date of receipt of such funds and in such amount.
(f) Whenever, at any time after any Revolving Credit Lender has purchased a
participating interest in a Swing Line Loan, the Swing Line Lender receives any
payment on account thereof, the Swing Line Lender will distribute to such
Revolving Credit Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Revolving Credit Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it.
(g) Each Revolving Credit Lender's obligation to make the Loans referred to
in Section 2.13(c) and to purchase participating interests pursuant to Section
2.13(e) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender or the
Borrower may have against the Swing Line Lender, the
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Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower; (iv) any breach of this
Agreement or any other Loan Document by the Borrower, CCI, any of their
Subsidiaries or any other Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
ARTICLE 3. LETTERS OF CREDIT
3.1 The L/C Commitment. (a) Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue Letters of Credit for the
account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that no Issuing Lender shall issue any Letter of Credit
if, after giving effect to such issuance, (i) the L/C Obligations would exceed
$15,000,000 or (ii) the sum of the Revolving Credit Loans, Swing Line Loans and
Letter of Credit Outstandings of all the Revolving Credit Lenders would exceed
the Revolving Credit Commitments of all the Revolving Credit Lenders. Each
Letter of Credit shall (i) be either (x) a Standby L/C issued to provide credit
support for insurance and other general corporate requirements of the Borrower
and its Subsidiaries, or (y) a Trade L/C in respect of the purchase of goods or
services by the Borrower and its Subsidiaries in the ordinary course of business
and (ii) expire no later than the Revolving Credit Commitment Termination Date.
No Standby L/C shall have an expiry date more than 360 days after its date of
issuance, and no Trade L/C shall have an expiry date more than 120 days after
its issuance and no later than five Business Days prior to the Revolving Credit
Commitment Termination Date, provided that Standby L/C's may provide for the
renewal thereof for additional periods not to exceed one year, but in any event
no later than the Revolving Credit Commitment Termination Date. Each Letter of
Credit shall be denominated in Dollars.
(b) Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York.
(c) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any Participating Lender to exceed any limits imposed by, any
applicable Requirement of Law.
(d) Any Letter of Credit issued and outstanding as of the Closing Date
pursuant to the Existing Credit Agreement shall be deemed to be a Letter of
Credit issued under this Agreement on the Closing Date.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may from time
to time request that the Issuing Lender issue a Letter of Credit by delivering
to the Issuing Lender and the Administrative Agent at their respective addresses
for notices specified herein a commercial letter of credit application in the
Issuing Lender's then customary form (a "Trade L/C Application") or a standby
letter of credit application in the Issuing Lender's then customary form (a
"Standby L/C Application"), as the case may be, in each case completed to
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the satisfaction of the Issuing Lender, and such other certificates, documents
and other papers and information as may be customary for letters of credit of
the kind being requested and as the Issuing Lender may reasonably request. Upon
receipt of any Letter of Credit Application, the Issuing Lender will process
such Letter of Credit Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and, upon receipt by the Issuing Lender of
confirmation from the Administrative Agent that issuance of such Letter of
Credit will not contravene Section 3.1, the Issuing Lender shall promptly issue
the Letter of Credit requested thereby (but in no event shall the Issuing Lender
be required to issue any Letter of Credit earlier than three Business Days after
its receipt of the Letter of Credit Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower and the
Administrative Agent promptly following the issuance thereof and to each
Revolving Credit Lender promptly following the end of each month.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the
Participating Lenders, a letter of credit commission with respect to each Letter
of Credit for each day at a per annum rate equal to the Applicable Margin
applicable to Revolving Credit Loans bearing interest at the Eurodollar Rate of
the daily face amount of such Letter of Credit, payable quarterly in arrears on
the last day of each of March, June, September and December and on the Revolving
Credit Commitment Termination Date. A portion of such commission equal to 1/4 of
1% of the average daily face amount of such Letter of Credit shall be payable to
the Issuing Lender for its own account, and the remaining portion of such
commission shall be payable to the Issuing Lender and the Revolving Credit
Lenders to be shared ratably among them in accordance with their respective
Revolving Credit Commitment Percentages. Such commissions shall be
nonrefundable.
(b) In addition to the foregoing fees and commissions, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the Participating Lenders all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this Section 3.3.
3.4 L/C Participations. (a) Effective on the date of issuance of each
Letter of Credit, the Issuing Lender irrevocably agrees to grant and hereby
grants to each Participating Lender, and each Participating Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such Participating
Lender's own account and risk an undivided interest equal to such Participating
Lender's Revolving Credit Commitment Percentage in the Issuing Lender's
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obligations and rights under each Letter of Credit issued by the Issuing Lender
and the amount of each draft paid by the Issuing Lender thereunder. Each
Participating Lender unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such Participating Lender shall pay to the
Administrative Agent, for the account of the Issuing Lender, upon demand at the
Administrative Agent's address specified in Section 12.2, an amount equal to
such Participating Lender's Revolving Credit Commitment Percentage of the amount
of such draft, or any part thereof, which is not so reimbursed. On the date that
any Assignee becomes a Revolving Credit Lender party to this Agreement in
accordance with Section 12.6, participating interests in any outstanding Letters
of Credit held by the transferor Lender from which such Assignee acquired its
interest hereunder shall be proportionately reallotted between such Assignee and
such transferor Lender. Each Participating Lender hereby agrees that its
obligation to participate in each Letter of Credit, and to pay or to reimburse
the Issuing Lender for its participating share of the drafts drawn or amounts
otherwise paid thereunder, is absolute, irrevocable and unconditional and shall
not be affected by any circumstances whatsoever (including, without limitation,
the occurrence or continuance of any Default or Event of Default), and that each
such payment shall be made without offset, abatement, withholding or other
reduction whatsoever.
(b) If any amount required to be paid by any Participating Lender to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any draft paid by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such Participating Lender shall pay to the Administrative Agent, for the
account of the Issuing Lender, on demand, an amount equal to the product of (i)
such amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such payment is required to the date on
which such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any Participating Lender pursuant to Section 3.4(a) is not in fact made
available to the Administrative Agent, for the account of the Issuing Lender, by
such Participating Lender within three Business Days after the date such payment
is due, the Issuing Lender shall be entitled to recover from such Participating
Lender, on demand, such amount with interest thereon calculated from such due
date at the rate per annum applicable to Alternate Base Rate Loans hereunder. An
L/C Participation Certificate of the Issuing Lender submitted to any
Participating Lender with respect to any amounts owing under this Section shall
be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has paid a draft under
any Letter of Credit and has received from any Participating Lender its pro rata
share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any reimbursement on account of such unreimbursed portion, or any
payment of interest on account thereof, the Issuing Lender will pay to the
Administrative Agent, for the account of such Participating Lender, its pro rata
share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such Participating Lender shall return to the Administrative Agent for
the account of the Issuing Lender, the portion thereof previously distributed to
it.
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3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein in Dollars and
in immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section 3.5 from the date such
amounts become payable in accordance with the first sentence of this Section 3.5
until payment in full, at the rate which would be payable on Alternate Base Rate
Loans at such time.
3.6 Obligations Absolute. The Borrower's Obligations under this Article 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower or any other Person may have or have had against the Issuing Lender or
any other Lender or any beneficiary of a Letter of Credit. The Borrower also
agrees with the Issuing Lender that the Issuing Lender shall not be responsible
for, and the Borrower's obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or wilful misconduct.
The Borrower agrees that any action taken or omitted by the Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or wilful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, including, without limitation, Article 5 thereof,
shall be binding on the Borrower and shall not result in any liability of such
Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
3.8 Letter of Credit Applications. To the extent that any
provision of any Letter of Credit Application, including any reimbursement
provisions contained therein, related to any Letter of Credit is inconsistent
with the provisions of this Article 3, the provisions of this Article 3 shall
prevail.
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ARTICLE 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of any Event of Default
specified in Section 9(a), the Loans and any overdue amounts hereunder shall
bear interest at a rate per annum which is (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section 4.1 plus 2% or (y) in the case of overdue interest,
commitment fee or other amount, the rate described in paragraph (b) of this
Section 4.1 plus 2%.
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section 4.1
shall be payable from time to time on demand.
4.2 Computation of Interest and Fees. (a) Interest on Alternate Base Rate
Loans, Eurodollar Loans, commitment fees, interest on overdue interest and other
amounts payable hereunder shall be calculated on the basis of a 360-day year
except interest on Alternate Base Rate Loans (when based on the Prime Rate)
shall be calculated on the basis of a year of 365/366, in either case for the
actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Revolving Credit Lenders or the Term Loan Lenders,
as the case may be, of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Revolving Credit Lenders or the Term Loan Lenders, as the case may be, of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 4.1(a), (b) or (c).
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4.3 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding upon
the Borrower) 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 Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Alternate Base Rate Loans
and (z) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent (which the Administrative Agent agrees to
do when the circumstances that prompted the delivery of such notice no longer
exist), no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Loans to Eurodollar Loans.
4.4 Pro Rata Treatment and Payments. (a) Each borrowing and each conversion
or continuation pursuant to Section 2.11, of Loans (other than Swing Line Loans)
by the Borrower from the Lenders and any reduction of the Commitments of the
Lenders hereunder shall be made pro rata according to the respective principal
amounts of such Loans held by the Lenders or the respective Commitment
Percentages of the Lenders, as the case may be.
(b) Whenever (i) any payment received by the Administrative Agent under
this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf of the Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to the
Administrative Agent and the Lenders under this Agreement and any Note, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the following order: First, to the
payment of fees and expenses due and payable to the Administrative Agent under
and in connection with this Agreement; Second, to the payment of all expenses
due and payable under Section 12.5, ratably among the Administrative Agent and
the Lenders in accordance with the aggregate amount of such payments owed to the
Administrative Agent and each such Lender; Third, to the payment of fees due and
payable under Sections 2.4 and 3.3(a), ratably among the Revolving Credit
Lenders in accordance with the Revolving Credit Commitment Percentage of each
Revolving Credit Lender and, in the case of the Issuing Lender, the amount
retained by the Issuing Lender for its own account pursuant to Section 3.3(a);
Fourth, to the payment of interest then due and payable under the Loans, ratably
in accordance with the aggregate amount of interest
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owed to each such Lender; and Fifth, to the payment of the principal amount of
the Loans and the L/C Obligations then due and payable and, in the case of
proceeds of collateral or payments under any guarantee, to the payment of any
other obligations to any Lender not covered in First through Fourth above
ratably secured by such collateral or ratably guaranteed under any such
guarantee, ratably among the Lenders in accordance with the aggregate principal
amount and, in the case of proceeds of collateral or payments under any
guarantee, the obligations secured or guaranteed thereby owed to each such
Lender.
(c) If any Revolving Credit Lender (a "Non-Funding Lender") has (x) failed
to make a Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Revolving Credit Lender is not
likely to make such Revolving Credit Loan or (y) given notice to the Borrower or
the Administrative Agent that it will not make, or that it has disaffirmed or
repudiated any obligation to make, any Revolving Credit Loans, in each case by
reason of the provisions of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended, or otherwise, any payment made on account
of the principal of the Revolving Credit Loans outstanding shall be made as
follows:
(i) in the case of any such payment made on any date when and to the
extent that, in the determination of the Administrative Agent, the Borrower
would be able, under the terms and conditions hereof, to reborrow the
amount of such payment under the Revolving Credit Commitments and to
satisfy any applicable conditions precedent set forth in Section 6.2 to
such reborrowing, such payment shall be made on account of the outstanding
Revolving Credit Loans held by the Revolving Credit Lenders other than the
Non-Funding Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such Revolving Credit
Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Revolving Credit Lenders pro
rata according to the respective outstanding principal amounts of such
Revolving Credit Loans; and
(iii) any payment made on account of interest on the Revolving Credit
Loans shall be made pro rata according to the respective amounts of accrued
and unpaid interest due and payable on the Revolving Credit Loans with
respect to which such payment is being made.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the Lenders.
(d) All payments (including prepayments) to be made by the Borrower on
account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent, for the account of
the Lenders at the Administrative Agent's office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in Dollars and in immediately available funds. The
Administrative Agent shall promptly distribute such payments in accordance with
the provisions of Section 4.4(b) promptly upon receipt in like
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funds as received. If any payment hereunder would become due and payable on a
day other than a Business Day, such payment shall become due and payable on the
next succeeding Business Day (except, in the case of Eurodollar Loans, as
otherwise provided in clause (1) of the definition of "Interest Period") and,
with respect to payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a Borrowing Date that such Lender will not make the amount
that would constitute its relevant Commitment Percentage of the borrowing on
such date available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such Borrowing Date, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If such
amount is made available to the Administrative Agent on a date after such
Borrowing Date, such Lender shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average Federal Funds Effective
Rate during such period, times (ii) the amount of such Lender's relevant
Commitment Percentage of such borrowing, times (iii) a fraction the numerator of
which is the number of days that elapse from and including such Borrowing Date
to the date on which such Lender's relevant Commitment Percentage of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
4.4(e) shall be conclusive in the absence of manifest error. If such Lender's
relevant Commitment Percentage of such borrowing is not in fact made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall be entitled to recover such
amount with interest thereon at the rate per annum applicable to Alternate Base
Rate Loans hereunder, on demand, from the Borrower. The failure of any Lender to
make any Loan to be made by it shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on such Borrowing Date, but no
Lender shall be responsible for the failure of any other Lender to make the Loan
to be made by such other Lender on such Borrowing Date.
4.5 Illegality. Notwithstanding any other provision herein, if the adoption
of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Alternate Base Rate Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Alternate Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law; provided that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions and so long as
such efforts would not be disadvantageous to it, in its reasonable discretion,
in any legal, economic or regulatory manner) to designate a different lending
office if the making of such a designation would allow the Lender or its lending
office to continue to perform its obligations to make Eurodollar Loans and avoid
the need for, or materially reduce the amount of, such increased cost. If any
such conversion of a
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Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 4.8. If circumstances
subsequently change so that any affected Lender shall determine that it is no
longer so affected, such Lender will promptly notify the Borrower and the
Administrative Agent, and upon receipt of such notice, the obligations of such
Lender to make or continue Eurodollar Loans or to convert Alternate Base Rate
Loans into Eurodollar Loans shall be reinstated.
4.6 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Loan, any Note, any Letter of Credit or any
Letter of Credit Application or change the basis of taxation of payments to
such Lender in respect thereof (except for taxes covered by Section 4.7 and
the establishment of a tax based on the net income of such Lender or
changes in the rate of tax on the net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit (including, without limitation, letters of
credit) by, or any other acquisition of funds by, any office of such
Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to increase the cost to such
Lender, by an amount which such Lender deems to be material, of issuing or
maintaining any Letter of Credit or participation therein or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that before making any such demand, each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, in its reasonable discretion, in any legal, economic or regulatory
manner) to designate a different Eurodollar lending office if the making of such
designation would allow the Lender or its Eurodollar lending office to continue
to perform its obligations to make Eurodollar Loans or to continue to fund or
maintain Eurodollar Loans and avoid the need for, or materially reduce the
amount of, such increased cost. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section 4.6, it shall promptly notify (in
any event no later than 90 days after such Lender becomes entitled to make such
claim) the Borrower, through the Administrative Agent, of the event by reason of
which it has become so entitled. If the Borrower so notifies the Administrative
Agent within
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five Business Days after any Lender notifies the Borrower of any increased cost
pursuant to the foregoing provisions of this Section 4.6, the Borrower may
convert all Eurodollar Loans of such Lender then outstanding into Alternate Base
Rate Loans in accordance with Section 2.11 and, additionally, reimburse such
Lender for any cost in accordance with Section 4.8. This covenant shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder for nine months following such termination and
repayment.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof does or shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a prompt written request therefor, the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction; provided that the Borrower shall not
be required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than ninety days prior to the date that such lender notifies the
Borrower of such Lender's intention to claim compensation therefor; and
provided, further that, if the circumstances giving rise to such claim have a
retroactive effect, then such ninety day period shall be extended to include the
period of such retroactive effect. This covenant shall survive the termination
of this Agreement and the payment of any Notes and all other amounts payable
hereunder for nine months following such termination and repayment.
(c) A certificate as to any additional amounts payable pursuant to this
Section 4.6 showing in reasonable detail the calculation thereof and certifying
that the applicable Lender is generally charging such costs to other similarly
situated borrowers under similar credit facilities, submitted by such Lender,
through the Administrative Agent, to the Borrower shall be conclusive in the
absence of manifest error.
4.7 Taxes. (a) Except as provided below in this Section, all payments made
by the Borrower under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes imposed in lieu of net income taxes. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Notes,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or
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any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and any Notes, provided, however, that the Borrower
shall be entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender if such Lender fails
or is unable to comply with the requirements of paragraph (b) or (c) of this
Section 4.7. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 4.7 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of nine months thereafter.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (x) on or before the date of any payment by the Borrower under
this Agreement or any Notes to such Lender, deliver to the Borrower and the
Administrative Agent (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, certifying that it is entitled to receive payments
under this Agreement and any Notes without any deduction or withholding of
any United States federal income taxes and (B) a duly completed Internal
Revenue Service Form W-8 or W-9, or successor applicable form, as the case
may be, certifying that it is entitled to an exemption from United States
backup withholding tax;
(y) deliver to the Borrower and the Administrative Agent two further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(z) obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent; or
(ii) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply with
sub-paragraph (i) of this paragraph (b), (x) represent to the Borrower (for
the benefit of the Borrower and the Administrative Agent) that it is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (y) deliver to
the Borrower on or before the date of any payment by the Borrower, with a
copy to the Administrative Agent, (A) a certificate stating that such
Lender (1) is not a "bank" under Section 881(c)(3)(A) of the Code, is
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not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any Governmental
Authority, any application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements, (2) is not
a 10-percent shareholder within the meaning of Section 881(c)(3)(B) of the
Code and (3) is not a controlled foreign corporation receiving interest
from a related person within the meaning of Section 881(c)(3)(C) of the
Code (any such certificate a "U.S. Tax Compliance Certificate") and (B) two
duly completed copies of Internal Revenue Service Form W-8, or successor
applicable form, certifying to such Lender's legal entitlement at the date
of such certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments to be
made under this Agreement and any Notes (and to deliver to the Borrower and
the Administrative Agent two further copies of Form W-8 on or before the
date it expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recently provided form and, if necessary,
obtain any extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms), and (z) agree,
to the extent legally entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower and the Administrative Agent such
other forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments under this Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders any such
forms and certificates previously delivered by such Lender inapplicable or which
would prevent such Lender from duly completing and delivering such form or
certificate with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Each Person that shall become a Lender or a Participant
pursuant to Section 12.6 shall, upon the effectiveness of the related transfer,
be required to provide all of the forms, certifications and statements required
pursuant to this Section; provided that in the case of a Participant the
obligations of such Participant pursuant to this paragraph (b) shall be
determined as if such Participant were a Lender except that such Participant
shall furnish all such required forms, certifications and statements to the
Lender from which the related participation shall have been purchased.
(c) Each Lender shall, upon request by the Borrower, deliver to the
Borrower or the applicable Governmental Authority, as the case may be, any form
or certificate required in order that any payment by the Borrower under this
Agreement or any Notes may be made free and clear of, and without deduction or
withholding for or on account of any Non-Excluded Taxes (or to allow any such
deduction or withholding to be at a reduced rate) imposed on such payment under
the laws of any jurisdiction, provided that such Lender is legally entitled to
complete, execute and deliver such form or certificate and such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
4.8 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss (excluding loss of profit) or expense which
such Lender may sustain or incur as a consequence of (a) default by the Borrower
in payment when due of
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the principal amount of or interest on any Eurodollar Loan, (b) default by the
Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (c) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss or expense
(but excluding loss of margin) arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. Calculation of all amounts payable to a Lender under this Section 4.8
shall be made as though such Lender had actually funded its relevant Eurodollar
Loan through the purchase of a deposit bearing interest at the Eurodollar Rate
in an amount equal to the amount of such Eurodollar Loan and having a maturity
comparable to the relevant Interest Period; provided, however, that each Lender
may fund each of its Eurodollar Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 4.8. This covenant shall survive the termination of
this Agreement and the payment of any Notes and all other amounts payable
hereunder for a period of nine months thereafter.
4.9 Replacement of Lender. If at any time (a) the Borrower becomes
obligated to pay additional amounts described in Sections 4.5, 4.6 or 4.7 as a
result of any condition described in such Sections or any Lender ceases to make
Eurodollar Loans pursuant to Section 4.5, (b) any Lender becomes insolvent and
its assets become subject to a receiver, liquidator, trustee, custodian or other
Person having similar powers, (c) any Lender becomes a "Nonconsenting Lender" or
(d) any Lender becomes a "Non-Funding Lender", then the Borrower may, on ten
Business Days' prior written notice to the Administrative Agent and such Lender,
replace such Lender by causing such Lender to (and such Lender shall) assign
pursuant to Section 12.6(c) all of its rights and obligations under this
Agreement to a Lender or other entity selected by the Borrower and acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder (including amounts payable under Section 4.8 as though
such Loans were being paid instead of being purchased); provided that (i) the
Borrower shall have no right to replace the Administrative Agent, (ii) neither
the Administrative Agent nor any Lender shall have any obligation to the
Borrower to find a replacement Lender or other such entity, (iii) in the event
of a replacement of a Nonconsenting Lender or a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to clause (a) of this
Section 4.9, in order for the Borrower to be entitled to replace such a Lender,
such replacement must take place no later than 180 days after (A) the date the
Nonconsenting Lender shall have notified the Borrower and the Administrative
Agent of its failure to agree to any requested consent, waiver or amendment or
(B) the Lender shall have demanded payment of additional amounts under one of
the Sections described in clause (a) of this Section 4.9, as the case may be,
and (iv) in no event shall the Lender hereby replaced be required to pay or
surrender to such replacement Lender or other entity any of the fees received by
such Lender hereby replaced pursuant to this Agreement. In the case of a
replacement of a Lender to which the Borrower becomes obligated to pay
additional amounts pursuant to clause (a) of this Section 4.9, the Borrower
shall pay such additional amounts to such Lender prior to such Lender being
replaced and the payment of
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such additional amounts shall be a condition to the replacement of such Lender.
In the event that (x) the Borrower or the Administrative Agent has requested the
Lenders to consent to a departure or waiver of any provisions of the Loan
Documents or to agree to any amendment thereto, (y) the consent, waiver or
amendment in question requires the agreement of all Lenders in accordance with
the terms of Section 12.1 and (z) Required Lenders have agreed to such consent,
waiver or amendment, then any Lender who does not agree to such consent, waiver
or amendment shall be deemed a "Nonconsenting Lender." The Borrower's right to
replace a Non-Funding Lender pursuant to this Section 4.9 is, and shall be, in
addition to, and not in lieu of, all other rights and remedies available to the
Borrower against such Non-Funding Lender under this Agreement, at law, in
equity, or by statute.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and to issue and participate in Letters of
Credit, CCI and the Borrower hereby represent and warrant to the Administrative
Agent and each Lender (it being understood that on the Closing Date such
representations and warranties shall be deemed to be made both immediately
before and immediately after the issuance of the Senior Subordinated Notes),
that:
5.1 Financial Condition. (a) The audited consolidated financial statements
of the Borrower for the fiscal years ended September 30, 1994, 1995 and 1996,
reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P., copies of which have heretofore been
furnished to each Lender, to the knowledge of CCI and the Borrower, present
fairly in all material respects the consolidated financial position of the
Borrower as at such dates, and the consolidated results of the Borrower's
operations and the Borrower's cash flows for the fiscal periods then ended. The
unaudited consolidated financial statements of the Borrower for the two-month
period ended November 30, 1997, certified by a Responsible Officer of the
Borrower, copies of which have heretofore been furnished to each Lender, to the
knowledge of CCI and the Borrower, present fairly in all material respects the
consolidated financial position of the Borrower as of such date, and the
consolidated results of the Borrower's operations and the Borrower's cash flow
for the two-month period then ended. All such financial statements and the
related schedules and notes thereto have been prepared, to the knowledge of CCI
and the Borrower, in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Neither the Borrower nor any of
its Subsidiaries had, to the knowledge of CCI and the Borrower, as at the date
of the most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto and which, to the
knowledge of CCI and the Borrower, has any reasonable likelihood of resulting in
a material cost or loss.
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(b) The unaudited consolidated financial statements of CCI and its
Subsidiaries for the fiscal years ended November 30, 1994 and 1995, copies of
which have heretofore been furnished to each Lender, present fairly in all
material respects the consolidated financial position of CCI as at such date,
and the consolidated results of CCI's operations and CCI's cash flows for the
periods then ended. All such financial statements and the related schedules and
notes thereto have been prepared, to the knowledge of CCI and the Borrower, in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such Responsible Officer and as disclosed therein).
Neither CCI nor any of its Subsidiaries had, as at the date of the most recent
balance sheet referred to above, any material Guarantee Obligation, contingent
liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto and which, has any reasonable
likelihood of resulting in a material cost or loss.
(c) The audited consolidated financial statements of CCI and its
Subsidiaries for the fiscal year ended November 30, 1996, reported on by Coopers
& ▇▇▇▇▇▇▇ L.L.P., copies of which have heretofore been furnished to each Lender,
to the knowledge of CCI and the Borrower, present fairly in all material
respects the consolidated financial position of CCI as at such date, and the
consolidated results of CCI's operations and CCI's cash flows for the period
then ended. All such financial statements and the related schedules and notes
thereto have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants and as
disclosed therein). Neither CCI nor any of its Subsidiaries had, as at the date
of the balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto and which has any reasonable
likelihood of resulting in a material cost or loss.
(d) The pro forma balance sheet of the Borrower and its Subsidiaries (the
"Pro Forma Balance Sheet") and the pro forma condensed consolidated statement of
operations of the Borrower and its Subsidiaries (the "Pro Forma Statement of
Operations"), certified by a Responsible Officer of CCI and the Borrower, copies
of which have been heretofore furnished to each Lender, are, to the knowledge of
CCI and the Borrower, the unaudited balance sheet of the Borrower and its
consolidated Subsidiaries as at September 30, 1997, and the unaudited condensed
consolidated statement of operations of the Borrower and its consolidated
Subsidiaries for the twelve months ended September 30, 1997, adjusted to give
effect (as if such events had occurred on October 1, 1996) to (i) the making of
the Term Loans, (ii) the making of Revolving Credit Loans in an aggregate
principal amount not to exceed $25,000,000 and the issuance of the Letters of
Credit to be issued on the Closing Date, (iii) the payment of fees, expenses and
financing costs related to the Transactions, (iv) the issuance of the Senior
Subordinated Notes and the consummation of the other Transactions in accordance
with the Transaction Documents, and (v) the acquisition by CCI of the Borrower.
The Pro Forma Balance Sheet and the Pro Forma Statement of Operations, together
with the notes thereto, were prepared based on good faith assumptions as of the
date of delivery thereof, and reflect on a pro forma basis the financial
position of the Borrower and its Subsidiaries as at September 30, 1997 and for
the twelve-month period ending September 30, 1997, as adjusted, as described
above, assuming that the events specified in the preceding sentence had actually
occurred at October 1, 1996.
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5.2 No Change. Since September 30, 1997 (a) there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect and (b) no dividends or other distributions have been declared,
paid or made upon the Capital Stock of CCI or the Borrower except as listed on
Schedule 5.2 or otherwise permitted hereby nor has any of the Capital Stock
(other than in connection with the Transactions) of CCI or the Borrower been
redeemed, retired, purchased or otherwise acquired for value by CCI or Borrower
or any of their Subsidiaries.
5.3 Corporate Existence; Compliance with Law. CCI and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Affect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each Credit
Party has the corporate power and authority, and the legal right, to make,
deliver and perform this Agreement, any of the Notes, the other Loan Documents
and the Transaction Documents to which it is a party and, with respect to the
Borrower, to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of, or the granting of any
security interests under, this Agreement, any of the Notes and the other Loan
Documents and to authorize the execution, delivery and performance of this
Agreement, any of the Notes, other Loan Documents and the Transaction Documents
to which it is a party. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of, or the granting of any
security interests under, this Agreement, any of the Notes or the other Loan
Documents to which any Credit Party is a party or to the Transaction Documents
to which it is a party, except for (i) those set forth on Schedule 5.4, each of
which have been made or taken and are in full force and effect, (ii) consents
under immaterial Contractual Obligations and (iii) those referred to in Section
5.20. This Agreement, any Note, each of the other Loan Documents and each of the
Transaction Documents has been duly executed and delivered on behalf of each
Credit Party thereto. This Agreement, any Note, each of the other Loan Documents
and each of the Transaction Documents constitutes a legal, valid and binding
obligation of each Credit Party thereto enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
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5.5 No Legal Bar. The execution, delivery and performance of this
Agreement, the Notes, the other Loan Documents and the Transaction Documents,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or material Contractual Obligation of any Credit Party or
of any of its Subsidiaries.
5.6 No Material Litigation. Except as set forth in Schedule 5.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of CCI and the Borrower,
threatened by or against any of the Credit Parties or any of their Subsidiaries
or against any of its or their respective properties or revenues (a) with
respect to this Agreement, any Notes, the other Loan Documents or any of the
transactions contemplated hereby or thereby, (b) with respect to any of the
Transaction Documents or any of the transactions contemplated thereby on the
Closing Date, or thereafter, any material provision of any material transaction
contemplated thereby, or (c) which could reasonably be expected to have a
Material Adverse Effect.
5.7 No Default. None of the Credit Parties or any of their Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Credit Parties and their
Subsidiaries has good record and indefeasible title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 8.3. Such real
and other properties comprise all of the properties the use of which is
necessary for the conduct of such Credit Party's or such Subsidiaries' business
as presently conducted and as proposed to be conducted by it. As of the date
hereof, the Fee Properties listed on Part I of Schedule 5.8 constitute all the
real properties owned in fee by the Borrower or its Subsidiaries and the Leased
Properties listed on Part II of Schedule 5.8 constitute all of the real
properties leased by the Borrower or its Subsidiaries. As of the date hereof,
each of the leases with respect to material Leased Properties listed on Part II
of Schedule 5.8 is in full force and effect.
5.9 Intellectual Property. Each of the Credit Parties and their
Subsidiaries owns, or is validly licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure of which to own or
license could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the knowledge of CCI and the Borrower, and except
as set forth on Schedule 5.9, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does CCI or
the Borrower know of any valid basis for any such claim which could reasonably
be expected to have a Material Adverse Effect. The use of such Intellectual
Property by the Credit Parties and their
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Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.10 Taxes. Except as set forth on Schedule 5.10, each of the Credit
Parties and their Subsidiaries has filed or caused to be filed all federal and
all other material tax returns which, to the knowledge of CCI and the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than (i) any such taxes,
assessments, fees or other charges the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Credit Parties or their Subsidiaries, as the case may be, and (ii) taxes,
assessments, fees or other charges imposed by any Governmental Authority, other
than income taxes imposed by the United States of America, with respect to which
the failure to make payments could not, by reason of the amount thereof or of
remedies available to such Governmental Authorities, reasonably be expected to
have a Material Adverse Effect); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
5.11 Federal Regulations. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or for
any purpose which violates the provisions of the Regulations of such Board of
Governors. If requested by any Lender or the Administrative Agent, the Borrower
will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
5.12 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could not
reasonably be expected to have a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (iii) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (iv) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount which could reasonably be expected to have a Material Adverse
Effect; (v) none of the Credit Parties nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and, to the
best knowledge of the Credit Parties, none of the Credit
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Parties nor any Commonly Controlled Entity would become subject to any liability
under ERISA if the Credit Parties or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made;
(vi) no such Multiemployer Plan is in Reorganization or Insolvent; (vii) the
present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the liability of the Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits.
5.13 Investment Company Act; Other Regulations. Neither CCI nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. Neither CCI nor any of its Subsidiaries is subject to regulation
under any Requirement of Law which limits its ability to incur Indebtedness.
5.14 Subsidiaries, Etc. As of the date hereof, the only Subsidiaries of
CCI, and the only partnerships or joint ventures in which CCI or any of its
Subsidiaries has an interest are those listed on Schedule 5.14. As of the date
hereof, CCI owns the percentage of the Capital Stock or other evidences of the
ownership of each Subsidiary, partnership or joint venture listed on Schedule
5.14 as set forth on such Schedule. As of the date hereof, no such Subsidiary,
partnership or joint venture has issued any securities convertible into shares
of its Capital Stock, and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries, partnerships or joint ventures
owned by the Borrower and its Subsidiaries are so owned free and clear of all
Liens, warrants, options or rights of others of any kind except as set forth in
Schedule 5.14.
5.15 Purpose of Loans. The proceeds of the Revolving Loans and Term Loans
shall be used to (i) refinance the Existing Credit Agreement and (ii) pay the
fees and expenses of the transactions contemplated hereby. The proceeds of the
Revolving Credit Loans shall be used for working capital purposes and other
general corporate purposes of the Borrower and the Subsidiaries, provided,
however that the Borrower may not borrow more than $25,000,000 of Revolving
Credit Loans on the Closing Date.
5.16 Environmental Matters. (a) The facilities and properties owned, leased
or operated by CCI or any of its Subsidiaries (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under such conditions which (i) constitute or
constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law in effect at the time of the making of
this representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation, liability,
interference, or reduction in fair market value, or any aggregation thereof, is
not reasonably likely to result in a Material Adverse Effect.
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(b) The Business, Properties and all operations at the Properties are, and
to the knowledge of CCI and the Borrower have been, in compliance in all
material respects with all applicable Environmental Laws except for
noncompliance which is not reasonably likely to result in a Material Adverse
Effect.
(c) Neither CCI nor any of its Subsidiaries has received any written notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does CCI or the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that is
or are reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law in effect at the time of the making of this representation,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any
applicable Environmental Law in effect at the time of the making of this
representation except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, is not reasonably likely to result
in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of CCI or the Borrower, threatened, under any
Environmental Law to which CCI or any Subsidiary is or will be named as a party
with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, is not reasonably likely to result in a Material Adverse
Effect.
(f) There has been no release or, to the best knowledge of CCI or the
Borrower, threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of CCI or any
Subsidiary in connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could reasonably
give rise to liability under Environmental Laws in effect at the time of making
this representation except insofar as any such violation or liability referred
to in this paragraph, or any aggregation thereof, is not reasonably likely to
result in a Material Adverse Effect.
5.17 Delivery of the Transaction Documents. The Administrative Agent has
received for itself and for each Lender a complete copy of each of the
Transaction Documents (including all exhibits, schedules and disclosure letters
referred to therein or delivered pursuant thereto, if any) and all amendments
thereto, waivers relating thereto and other side letters or agreements affecting
the terms thereof.
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5.18 Representations and Warranties Contained in the Transaction Documents.
Each of the Transaction Documents has been duly executed and delivered by the
Credit Parties thereto and, to the best knowledge of CCI and the Borrower, all
other parties thereto and is in full force and effect. As of the date hereof,
the representations and warranties of the Credit Parties to the Transaction
Documents and, to the best knowledge of the Credit Parties, the representations
and warranties of the other parties thereto are true and correct in all material
respects.
5.19 Disclosure. No information, financial statement, report, certificate
or other document prepared or furnished by or on behalf of any Credit Party to
the Administrative Agent or any Lender in connection with this Agreement, any
other Loan Document or any of the Transaction Documents (but excluding all
projections and pro forma financial statements covered by the next succeeding
sentence) contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements herein or therein not misleading.
The projections and pro forma financial information and other estimates and
opinions contained in the materials referenced above are based upon good faith
estimates and assumptions believed by management of CCI and the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. As of the Closing Date, there is no fact known to any Credit
Party (other than general economic conditions, which conditions are commonly
known and affect businesses generally) which has, or which could reasonably be
expected to have, in the reasonable judgment of such Credit Party, a Material
Adverse Effect.
5.20 Guarantee and Collateral Agreement. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
ratable benefit of the Lenders, a legal, valid and enforceable security interest
in the Pledged Stock or the Pledged Notes, as the case may be, described therein
and proceeds thereof and all actions have been taken to cause the Guarantee and
Collateral Agreement to constitute a fully perfected first Lien on, and security
interest in, all right, title and interest of CCI, the Borrower and their
Domestic Subsidiaries party thereto in such Pledged Stock or Pledged Notes, as
the case may be, described therein and in proceeds thereof superior in right to
any other Person.
(b) The Guarantee and Collateral Agreement is effective to create in favor
of the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the respective collateral described therein and
proceeds thereof, and when financing statements in appropriate form are filed in
the offices specified on Schedule 5.8 or in the Guarantee and Collateral
Agreement, and the other actions required to be taken by the Guarantee and
Collateral Agreement have been taken, the Guarantee and Collateral Agreement
shall constitute fully perfected, first priority Liens on, and security
interests in, all right, title and interest of CCI, the Borrower and their
Subsidiaries party thereto in such collateral and the proceeds thereof superior
in right to any other Person other than Liens permitted hereby.
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5.21 Solvency. Each of CCI and the Borrower is, individually and together
with its Subsidiaries, Solvent.
5.22 No Fees. None of the Credit Parties nor any of their Subsidiaries is
under any obligation to pay any broker's fees, finder's fee, commission,
transaction fee or expenses in connection with the transactions contemplated by
this Agreement or the Transaction Documents other than fees and expenses listed
on Schedule 5.22.
5.23 Insurance. The insurance maintained by or reserved against on the
books of CCI, the Borrower and their Subsidiaries is sufficient to protect CCI,
the Borrower and their Subsidiaries against such risks as are usually insured
against in the same general area by companies engaged in the same or similar
business. None of CCI, the Borrower or any of their Subsidiaries is in default
under any provisions of any such policy of insurance or has received notice of
cancellation of any such insurance (other than in connection with the
replacement of any such policy). None of CCI, the Borrower or any of their
Subsidiaries has made any material claims under any policy of insurance with
respect to which the insurance carrier has denied liability.
5.24 Labor Matters. There are no strikes pending or, to the best knowledge
of CCI or the Borrower, threatened against CCI or any of its Subsidiaries which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked and payments made to employees of CCI
and each of its Subsidiaries have not been in violation of any applicable United
States labor laws, rules or regulations or any other applicable laws, rules or
regulations, except where such violations could not reasonably be expected to
have a Material Adverse Effect. The consummation of the Transactions will not
give rise to a right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which CCI or any of its
Subsidiaries (or any predecessor) is a party or by which CCI or any of its
Subsidiaries (or any predecessor) is bound.
5.25 Lease Transactions; Lease Transaction Obligations. As of the Closing
Date, none of the Credit Parties nor any of their Subsidiaries is a party to any
Lease Transaction Obligations other than as listed on Schedule 5.25 hereto.
5.26 Senior Indebtedness. The Obligations constitute "Senior Indebtedness"
of the Borrower under and as defined in the Senior Subordinated Note Indenture
and any other document evidencing Senior Subordinated Indebtedness or guarantees
thereof. The obligations of each Subsidiary which is a Guarantor under the
Guarantee and Collateral Agreement constitute "Guarantor Senior Indebtedness" of
such Subsidiary under and as defined in the Senior Subordinated Note Indenture
and any other document evidencing Senior Subordinated Indebtedness or guarantees
thereof, to the extent, if any, such subsidiary has guaranteed payment of the
Senior Subordinated Indebtedness.
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ARTICLE 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans. The agreement of each Lender to make the
initial Loan requested to be made by it and of the Issuing Lender and each
Revolving Credit Lender to issue and participate in Letters of Credit is subject
to the satisfaction, immediately prior to or concurrently with the making of
such Loan or issuance of such Letter of Credit on the Closing Date (which shall
in no event occur later than March 31, 1998), of the following conditions
precedent:
(a) Agreement; Notes. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized Responsible
Officer of each of CCI and the Borrower with a counterpart for each Lender
and (ii) for the account of each of the Lenders which has requested a Note
pursuant to Section 2.2, 2.7(a) or 2.13(b), a Revolving Credit Note, a Term
Note or a Swing Line Note, as the case may be, conforming to the
requirements hereof and executed and delivered by a duly authorized
Responsible Officer of the Borrower and (iii) the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized Responsible Officer
of each appropriate Credit Party.
(b) Existing Credit Agreement. (i) All accrued unpaid interest, fees,
commissions and other amounts (other than principal) owing under the
Existing Credit Agreement shall have been paid.
(ii) $85,000,000 principal of the Term Loans shall have been
paid, with the result that $50,000,000 of principal of the Term Loans
remains outstanding.
(iii) The Revolving Credit Loans outstanding under the Existing
Credit Agreement shall be reallocated as directed by the
Administrative Agent, with the result that the Revolving Credit Loans
will be held by the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitment.
(iv) Each Existing Lender which will not continue as a Lender
hereunder (a "Departing Lender") shall deliver to the Administrative
Agent an acknowledgment that its Commitments and Loans under the
Existing Credit Agreement are being assigned and reallocated as set
forth herein.
(v) The Lenders and Departing Lenders will make such payments
among themselves as directed by the Administrative Agent so that,
after giving effect thereto, the outstanding Revolving Credit Loans
and Term Loans will be held by the Lenders in accordance with their
respective Revolving Credit Commitment Percentages and Term Loan
Commitment Percentages.
(c) Corporate Proceedings of the Credit Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors or duly authorized
committee of each of CCI, the Borrower and each of their
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Domestic Subsidiaries authorizing (i) the execution, delivery and
performance of this Agreement, the other Loan Documents and the Transaction
Documents to which it is a party, (ii) the borrowings contemplated
hereunder and (iii) the transactions contemplated by the Transactions (to
the extent applicable to such Person), certified by the Secretary or an
Assistant Secretary of each of CCI, the Borrower and each of their Domestic
Subsidiaries as of the Closing Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(d) Incumbency Certificates. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Secretary or an
Assistant Secretary (or comparable officer) of each of CCI, the Borrower
and each of their Domestic Subsidiaries, dated the Closing Date, as to the
incumbency and signature of the Responsible Officers of such Person
executing each Loan Document and Transaction Document to which it is a
party and any certificate or other document to be delivered by it pursuant
hereto and thereto, together with evidence of the incumbency of such
Secretary or Assistant Secretary.
(e) Corporate Documents. The Administrative Agent shall have received,
with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws of each of the Credit Parties,
certified as of the Closing Date as complete and correct copies thereof by
the Secretary or an Assistant Secretary of each of the Credit Parties.
(f) Consents, Licenses and Approvals. (i) All governmental and
material third party approvals (including debtholders', landlords' and
other consents) necessary or advisable in connection with the Transactions
and execution, delivery and performance of the Loan Documents and the
Transaction Documents and the continuing operation of the Business shall
have been obtained and be in full force and effect, (ii) all applicable
waiting periods shall have expired without any action being taken or
threatened by any competent Governmental Authority which would restrain,
prevent or otherwise impose adverse conditions on CCI, any of its
Subsidiaries or the Transactions and (iii) the Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of a
Responsible Officer of each of the Credit Parties (A) attaching copies of
all consents, authorizations and filings referred to in Section 5.4, and
(B) stating that such consents, licenses and filings are in full force and
effect, and each such consent, authorization and filing shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(g) Fees. Chase shall have received the fees referred to in Section
2.4 to be received on the Closing Date and the Administrative Agent shall
have received a certificate in a form acceptable to it from a Responsible
Officer certifying that the total aggregate amount of all fees and expenses
incurred or to be incurred in connection with the Transactions shall not
exceed an amount usual for transactions of this type.
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(h) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a borrowing certificate
substantially in the form of Exhibit G hereto and dated the Closing Date,
executed by a Responsible Officer of each of the Borrower and the
Guarantor.
(i) Senior Subordinated Notes. The Borrower shall have received at
least $97,000,000 in net cash proceeds from the issuance of the Senior
Subordinated Notes on terms and conditions reasonably satisfactory to the
Administrative Agent.
(j) [Reserved]
(k) [Reserved]
(l) No Defaults. There shall exist no breach of or default (or
condition which would constitute a default with the giving of notice or the
passage of time) under any capital stock, financing agreements, lease
agreements or other Contractual Obligation of CCI, the Borrower or any of
their Subsidiaries which, in any case or in the aggregate, would have a
Material Adverse Effect.
(m) Legal Opinions. The Lenders shall have received, with a copy for
each Lender, from (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to CCI
and the Borrower, substantially in the form of Exhibit F, and (ii) such
special and local counsel as may be required by the Administrative Agent,
such legal opinions as are customary for transactions of this type or as it
may reasonably request.
(n) Perfection. All filings and other actions required to create and
perfect a first priority security interest in all collateral granted to the
Administrative Agent pursuant to the Security Documents shall have been
duly made or taken, and all such collateral shall be free and clear of
other Liens except as permitted hereby or as provided in Section 7.15(c).
The Administrative Agent shall have received evidence satisfactory to it
that UCC-3 termination statements and other Lien release documentation
shall have been duly executed and properly filed, and all other necessary
actions shall have been duly taken, to the extent necessary to effect the
complete and irrevocable release of all Liens other than those permitted
pursuant to Section 8.3 on the assets of CCI and its Subsidiaries.
(o) Insurance. The Administrative Agent shall have received an
insurance certificate from Aon Risk Services, dated the Closing Date, and
other evidence satisfactory to it that CCI, the Borrower and their
Subsidiaries have obtained the insurance policies required by this
Agreement and by the Security Documents.
(p) Perfection Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a Perfection Certificate,
dated the Closing Date, substantially in the form of Exhibit H, duly
completed by the Borrower.
(q) [Reserved]
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(r) Financial Statements. The Lenders shall have received (i) the
financial statements referred to in Section 5.1 and (ii) unaudited interim
financial statements of the Borrower and its Subsidiaries for each fiscal
quarterly period ended subsequent to September 30, 1997 as to which such
financial statements are available, and such financial statements shall
not, in the reasonable judgment of the Lenders, reflect any material
adverse change in the financial condition of any of them as reflected in
the financial statements or projections previously furnished to the
Lenders.
(s) Post-Transaction Financial Position. The Administrative Agent
shall have received, with a copy for each Lender, a certificate of a
Responsible Officer of CCI and the Borrower to the effect that on the
Closing Date after giving effect to the Transactions, there shall exist no
Indebtedness of CCI and its consolidated Subsidiaries (including the
Borrower) (excluding Indebtedness incurred pursuant to this Agreement and
any Notes and Indebtedness permitted by Section 8.2 and Section 11.6(i)).
(t) Guarantee and Collateral Agreement. The Administrative Agent shall
have received the Pledged Stock to be pledged pursuant to the Guarantee and
Collateral Agreement, together with undated stock powers endorsed in blank
for each stock certificate representing such Pledged Stock, or, as
applicable, such other documents or modifications required by the Guarantee
and Collateral Agreement, except as provided in Section 7.15(c). The
Administrative Agent shall have received, on behalf of the Lenders, each
Pledged Note to be pledged pursuant to the Guarantee and Collateral
Agreement, endorsed as required by the Guarantee and Collateral Agreement,
and the acknowledgement and consent of the maker of each such Pledged Note.
(u) [Reserved]
(v) Litigation. No litigation, inquiry, injunction or restraining
order shall be pending, entered or threatened (including, without
limitation, any proposed statute, rule or regulation) which, in the
reasonable opinion of the Lenders, could have a Material Adverse Effect.
(w) No Adverse Change. There shall not have occurred any change, or
development or event involving a prospective change, which in either case
in the reasonable opinion of the Lenders, could have a Material Adverse
Effect. The Lenders shall not have become aware of any previously
undisclosed materially adverse information with respect to (i) the
Transactions or the business, assets, operations, condition (financial or
otherwise) or prospects of CCI, the Borrower and their Subsidiaries, taken
as a whole, (ii) their ability to perform their obligations under this
Agreement, any Note or the other Loan Documents or (iii) the rights and
remedies of the Lenders.
(x) Revolving Credit Loans. On the Closing Date the aggregate
principal amount of all outstanding Revolving Credit Loans shall not exceed
$25,000,000.
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(y) Other Documentation. All other documentation, including, without
limitation, any tax sharing agreement, employment agreement, management
compensation arrangement or other financing arrangement of CCI or any of
its Subsidiaries shall be reasonably satisfactory in form and substance to
the Lenders.
6.2 Conditions to Each Loan. The agreement of each Lender to make any Loan
requested to be made by it on any date (including, without limitation, its
initial Loan) or of the Revolving Credit Lenders and the Issuing Lender to issue
or participate in any Letter of Credit is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Credit Parties and their Subsidiaries in or pursuant
to the Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date, except for any
representation and warranty which is expressly made as of an earlier date,
which representation and warranty shall have been true and correct in all
material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Loans requested to
be made, or Letters of Credit requested to be issued, on such date.
(c) Letter of Credit Application. With respect to the issuance of any
Letter of Credit, the Issuing Lender shall have received a Letter of Credit
Application, completed to its reasonable satisfaction and duly executed by
a Responsible Officer of the Borrower; provided that if such Letter of
Credit is being issued to support the repayment of any Indebtedness of any
Subsidiary of the Borrower, such Subsidiary shall also execute such Letter
of Credit Application and shall agree to be jointly and severally liable
with the Borrower for any and all obligations arising under or in
connection with such Letter of Credit or the Letter of Credit Application
related thereto.
Each borrowing by the Borrower hereunder and issuance of any Letter of
Credit shall constitute a representation and warranty by the Credit Parties as
of the date of such Loan or issuance, as the case may be, that the conditions
contained in this Section 6.2 have been satisfied.
ARTICLE 7. AFFIRMATIVE COVENANTS
Each of CCI and the Borrower hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid, any Letter of Credit
is outstanding or any other Obligations are owing to any Lender or the
Administrative Agent hereunder, CCI and the Borrower shall and (except in the
case of delivery of financial information, reports and notices) shall cause each
of its Subsidiaries to:
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7.1 Furnish to each Lender:
(a) as soon as available, but in any event within 110 days after the
end of each fiscal year of the Borrower and CCI, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries and of CCI
and its consolidated Subsidiaries as at the end of such year and the
consolidated statements of income and retained earnings and consolidated
statement of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower and CCI, the unaudited consolidating and consolidated
balance sheet of the Borrower and its consolidated Subsidiaries and of CCI
and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidating and consolidated statements of income and
retained earnings and consolidated statement of cash flows of the Borrower
and its consolidated Subsidiaries and of CCI and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form (i)
the figures for the previous year commencing with the quarter ending March
31, 1998 and (ii) the figures set forth in the relevant budgets required to
be delivered in accordance with Section 7.2(c), certified by a Responsible
Officer as being fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Borrower and its
consolidated Subsidiaries (subject to normal year-end audit adjustments);
(c) as soon as available, but in any event not later than 30 days
after the end of each month (other than a month the last day of which
coincides with the last day of any fiscal quarter) of each fiscal year of
the Borrower, monthly operating reports of the Borrower and its
consolidated Subsidiaries in the form of Exhibit I as at the end of such
month, setting forth in each case in comparative form (i) the figures for
the previous year commencing with the 1998 fiscal year and (ii) the figures
set forth in the relevant budgets required to be delivered in accordance
with Section 7.2(c); provided that the provisions of this paragraph (c)
shall be inapplicable for so long as the ratio of Consolidated Total Debt
of the Borrower and its Subsidiaries to Consolidated EBITDA of the Borrower
and its Subsidiaries is below 2.00 to 1.00, as most recently determined in
accordance with Section 8.1(d);
all such financial statements shall fairly present in all material respects the
consolidated financial position or the consolidating financial position, as the
case may be, of the Borrower and its Subsidiaries as of such date and shall be
prepared in reasonable detail and, except with respect to financial statements
delivered pursuant to paragraph (c) above, in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
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7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default relating to the covenants contained in Section
8.1, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) and 7.1(b), a certificate of a Responsible
Officer of the Borrower (i) stating that, to the best of such Responsible
Officer's knowledge, the Credit Parties during such period have observed or
performed all of their covenants and other agreements, and satisfied every
condition, contained in this Agreement and in the Notes and the other Loan
Documents to which they are parties to be observed, performed or satisfied
by it, in all material respects, and that such Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate, (ii) stating that all such financial statements fairly present
in all material respects (subject, in the case of interim statements, to
normal year-end audit adjustments) and have been prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the
periods reflected therein (except as disclosed therein) and (iii) showing
in detail the calculations supporting such statement in respect of Sections
8.1, 8.8 and 8.9;
(c) as soon as available but not later than 45 days subsequent to the
end of each fiscal year of the Borrower, a copy of the projections by the
Borrower of the operating budget and cash flow budget of the Borrower and
its Subsidiaries for the succeeding fiscal year (showing the operating
budget and cash flow budget for each quarter within such fiscal year), such
projections to be accompanied by a certificate of a Responsible Officer of
the Borrower to the effect that such projections have been prepared in good
faith and based upon reasonable assumptions;
(d) within five days after the same are filed, copies of all financial
statements and reports which CCI, the Borrower or any of their Subsidiaries
may make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of CCI or its Subsidiaries, as the case may be; provided that,
notwithstanding the foregoing, CCI and each of its Subsidiaries shall have the
right to pay any such obligation and in good faith contest, by proper legal
actions or proceedings, the validity or amount of such claims.
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7.4 Conduct of Business and Maintenance of Existence. Except as provided in
Section 8.5, continue to engage in business of the same general type as now
conducted by it and businesses reasonably related thereto and to preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except if (i) in the reasonable
business judgment of CCI or such Subsidiary, as the case may be, it is in its
best economic interest not to preserve and maintain such rights or franchises,
and (ii) such failure to preserve and maintain such privileges, rights or
franchises would not materially adversely affect the rights of the Lenders
hereunder or the value of the collateral security for the Loans, and as
otherwise permitted pursuant to Section 8.5; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business or as otherwise reasonably requested by the
Administrative Agent; and furnish to each Lender, upon written request, full
information as to the insurance carried except to the extent that the failure to
do any of the foregoing with respect to any such property could not reasonably
be expected to materially adversely affect the value or usefulness of such
property.
7.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records upon reasonable
advance notice at any reasonable time on any Business Day and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of CCI and its Subsidiaries with officers and
employees of CCI and its Subsidiaries and with its independent certified public
accountants; provided that the Administrative Agent or such Lender shall notify
the Borrower prior to any contact with such accountants and give the Borrower
the opportunity to participate in such discussions.
7.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between CCI or any
of its Subsidiaries and any Governmental Authority, which in either case,
if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
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(c) any litigation or proceeding affecting any of the Credit Parties
or any of their Subsidiaries in which the amount involved is $1,000,000 or
more and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan (other than a Multiemployer
Plan), a failure to make any required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(e) any development or event which has had, or could reasonably be
expected to have, a Material Adverse Effect; and
(f) the receipt by CCI or any Subsidiary of any complaint, order,
citation, notice or other written communication from any Person with
respect to the existence or alleged existence of a violation of any
Environmental Laws or Materials of Environmental Concern or any other
environmental, health or safety matter, including, without limitation, the
occurrence of any spill, discharge or release in a quantity that is
reportable under any Environmental Law on property owned, leased or
utilized by CCI or any Subsidiary of CCI but only to the extent that such
complaint, order, citation, notice or written communication individually or
in the aggregate could reasonably be expected to result in material
liability or a material obligation under any Environmental Law.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower, CCI or the applicable
Commonly Controlled Entity proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply in all material respects with, and will use reasonable best
efforts to ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws;
(b) conduct and complete (or cause to be conducted and completed) all
investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws and in a timely fashion
comply in all material respects with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect; and
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(c) defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers, directors
and controlling persons, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of CCI
or its Subsidiaries or the Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of or relate to
the gross negligence or wilful misconduct of, or any post-foreclosure
actions not taken in accordance with the Asset Conservation, Lender
Liability and Deposit Insurance Protection Act of 1996 and analogous lender
liability laws. The agreements in this paragraph shall survive repayment of
all Loans and all other amounts payable hereunder.
7.9 Pledge of After Acquired Property. If at any time following the Closing
Date the aggregate monetary value (as determined by aggregating the monetary
value of each item or items of property so acquired on the date of the
acquisition thereof) of all property (to the extent not already secured) of any
nature whatsoever acquired by CCI and/or any Domestic Subsidiary after the
Closing Date is in excess of $1,000,000 (including for this purpose fee owned
real estate having a monetary value of $1,000,000 or less), CCI and any such
Domestic Subsidiary shall grant to the Administrative Agent for the ratable
benefit of the Lenders a first priority Lien on and security interest in such
property, as collateral security for the Obligations, pursuant to documentation
reasonably satisfactory to the Administrative Agent and take such actions as the
Administrative Agent shall reasonably require to ensure the priority and
perfection of such Lien, provided that (i) only 65% of the voting Capital Stock
of any Foreign Subsidiary need be so pledged, (ii) with respect to real
property, only fee owned real estate with a value in excess of $1,000,000 need
be mortgaged, (iii) property to the extent subject to a Lien permitted by
Section 8.3(h) or to the extent that creating such Lien on any item of property
is prohibited by any agreement of the type described in clause (ii) or (iii) of
Section 8.14 to which such property is subject such property need not be so
pledged and (iv) Chattel Paper owned by CCI or any Subsidiary (A) need not be so
pledged to the extent that it is used to secure Lease Transaction Obligations
and (B) shall not be required to be delivered to the Administrative Agent prior
to 180 days after the creation thereof unless an Event of Default exists, in
which case such Chattel Paper shall be delivered to the Administrative Agent
promptly following its request.
7.10 Pledge During Event of Default. At any time during the continuance of
an Event of Default, upon the request of the Administrative Agent or the
Required Lenders, grant to the Administrative Agent for the ratable benefit of
the Lenders a first priority Lien on and security interest in any unencumbered
property of CCI and its Domestic Subsidiaries of any nature whatsoever, as
collateral security for the Obligations, pursuant to documentation reasonably
satisfactory to the Administrative Agent and take such actions as the
Administrative Agent shall reasonably require to ensure the priority and
perfection of such Lien, provided, however, that if the grant of such Lien would
be reasonably likely to result in
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CCI incurring income tax liability (as determined by the Borrower and agreed to
by the Administrative Agent) pursuant to Subpart F of the Code, the property
pledged pursuant hereto will be that property which can be pledged without
incurring such liability; provided, further, that (i) only 65% of the voting
Capital Stock of any Foreign Subsidiary need be so pledged, (ii) no Foreign
Subsidiary shall be required to pledge its assets, (iii) assets to the extent
subject to Liens permitted by Section 8.3(g) or (h) or to the extent that
creating such Lien on any item of property is prohibited by any agreement of the
type described in clause (ii) or (iii) of Section 8.14 such property need not be
so pledged and (iv) Chattel Paper owned by CCI or any Subsidiary (A) need not be
so pledged to the extent that it is used to secure Lease Transaction Obligations
and (B) shall not be required to be delivered to the Administrative Agent unless
an Event of Default lasts, in which case such Chattel Paper shall be delivered
to the Administrative Agent promptly following its request.
7.11 Interest Rate Agreements. Not later than 120 days after the Closing
Date, enter into or purchase or otherwise acquire, with or from financially
responsible parties, Interest Rate Agreements, or otherwise fix the rate of
Indebtedness, which assure the net interest cost to the Borrower on at least 50%
of its Indebtedness for a period (of at least two years from the date on which
such Interest Rate Agreements are entered into, purchased or otherwise acquired
or such interest rate is otherwise fixed) and at a rate reasonably satisfactory
to the Administrative Agent and otherwise upon terms and conditions reasonably
satisfactory to the Administrative Agent. The Borrower shall use its
commercially reasonable efforts to maintain in full force and effect Interest
Rate Agreements reasonably satisfactory to the Administrative Agent in order to
ensure compliance with the terms of this Section 7.11 and shall not default
(beyond any applicable grace period) in the performance of any of its material
obligations thereunder. A security interest in all right, title and interest of
the Borrower in and to each Interest Rate Agreement shall be granted in favor of
the Administrative Agent for the benefit of the Lenders.
7.12 Additional Subsidiaries. If, at any time, either the Borrower or any
of its Domestic Subsidiaries shall form any new Subsidiary after the date of
this Agreement (this Section 7.12 not constituting authority to form a new
Subsidiary), the Borrower or such Domestic Subsidiary, as the case may be, shall
(i) cause such new Subsidiary (other than a Foreign Subsidiary) to execute and
deliver a supplement to the Guarantee and Collateral Agreement and become a
party thereto, and (ii) cause each holder of any Capital Stock of such
Subsidiary to pledge 100% of such Capital Stock to the Administrative Agent
pursuant to a supplement to the Guarantee and Collateral Agreement; provided
that in the event such Subsidiary is a Foreign Subsidiary only 65% of the voting
Capital Stock of such Foreign Subsidiary need be pledged to the Collateral
Agent; and provided, further that each such supplement shall be accompanied by
such resolutions, incumbency certificates and legal opinions as are reasonably
requested by the Administrative Agent.
7.13 Substantive Consolidation. The Borrower shall maintain a separate and
distinct existence from CCI and cause each of its Subsidiaries to maintain a
separate and distinct existence from CCI, the Borrower and each other Subsidiary
of the Borrower in order to avoid substantive consolidation of the assets and
liabilities of CCI, the Borrower and each Subsidiary of the Borrower under title
11 of the United States Bankruptcy Code, as amended,
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through the honoring of all formalities which shall include, without limitation,
no commingling of assets, sufficient and independent capitalization, and
separate books and records.
7.14 Intellectual Property. Whenever any Credit Party, either by itself or
through any agent, employee, licensee or designee, shall file an application for
the registration of any Copyright, Patent or Trademark with the United States
Patent and Trademark Office or any similar office or agency in any other country
or any political subdivision thereof, cause such Credit Party to report such
filing to the Collateral Agent within five Business Days after the last day of
the fiscal quarter in which such filing occurs. Upon request of the Collateral
Agent, such Credit Party shall execute and deliver any and all agreements,
instruments, documents, and papers as the Collateral Agent may reasonably
request to evidence the Collateral Agent's and the Secured Parties' (as defined
in the Guarantee and Collateral Agreement) security interest in any Copyright,
Patent or Trademark of such Intellectual Property and the goodwill and general
intangibles of such Credit Party relating thereto or represented thereby.
7.15 Covenants Relating to Collateral. (a) Whenever any Credit Party shall
receive any Instrument or Chattel Paper which is intended to be Collateral under
the Guarantee and the Collateral Agreement, CCI shall cause such Credit Party to
comply with the provisions of Section 5.2 of the Guarantee and Collateral
Agreement.
(b) Whenever any Credit Party shall change its name or the location of any
collateral or its place of business, CCI shall cause such Credit Party to comply
with the provisions of Section 5.6 of the Guarantee and Collateral Agreement.
Whenever any Credit Party receives additional securities of any of its
Subsidiaries, CCI shall cause such Credit Party to comply with the provisions of
Section 5.7 of the Guarantee and Collateral Agreement.
(c) Within 60 days of the Closing Date, cause 65% of the voting Capital
Stock of Triad Systems Ireland Limited to be pledged pursuant to the Guarantee
and Collateral Agreement, provided that if the pledge pursuant to this clause
(c) violates any contractual obligations, laws or other restrictions applicable
to Triad Systems Ireland Limited, then such pledge shall be deferred until such
pledge would not result in any such violation.
ARTICLE 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid, any Letter of Credit remains
outstanding or any other Obligations are owing to any Lender or the
Administrative Agent hereunder, the Borrower shall not, and (except with respect
to Section 8.1) shall not permit any of its Subsidiaries to, directly or
indirectly:
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8.1 Financial Conditions Covenants. (a) Maintenance of Consolidated
EBITDA to Consolidated Cash Interest Expense. Permit the ratio of (i)
Consolidated EBITDA of the Borrower and its Subsidiaries to (ii) Consolidated
Cash Interest Expense of the Borrower and its Subsidiaries for the period of
four consecutive fiscal quarters ending on the last day of each of the fiscal
quarters set forth below to be less than the ratio set forth opposite such
fiscal quarter below:
Quarter Ending Ratio
-------------- ------------
1997 December 31 1.85 to 1.00
1998 March 31 1.85 to 1.00
June 30 2.00 to 1.00
September 30 2.25 to 1.00
December 31 2.25 to 1.00
1999 March 31 2.25 to 1.00
June 30 2.25 to 1.00
September 30 3.00 to 1.00
December 31 3.00 to 1.00
2000 March 31 3.00 to 1.00
June 30 3.00 to 1.00
September 30 and each quarter thereafter 3.50 to 1.00
(b) [Reserved]
(c) Maintenance of Consolidated EBITDA. Permit Consolidated EBITDA of
the Borrower and its Subsidiaries for the period of four consecutive fiscal
quarters ending on the last day of each of the fiscal quarters set forth
below to be less than the amount set forth opposite such fiscal quarter
below:
Quarter Ending Amount
-------------- -----------
1998 March 31 $28,000,000
June 30 30,000,000
September 30 32,500,000
December 31 35,000,000
1999 March 31 37,500,000
June 30 40,000,000
September 30 45,000,000
December 31 47,500,000
2000 March 31 50,000,000
June 30 52,500,000
September 30 and each quarter thereafter 55,000,000
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(d) Maintenance of Consolidated Total Debt to Consolidated EBITDA.
Permit the ratio of Consolidated Total Debt of the Borrower and its
Subsidiaries to Consolidated EBITDA of the Borrower and its Subsidiaries
for the period of four consecutive fiscal quarters ending on the last day
of each of the fiscal quarters set forth below to be greater than the ratio
set forth opposite such fiscal quarter below:
Quarter Ending Ratio
-------------- ------------
1997 December 31 5.75 to 1.00
1998 March 31 5.50 to 1.00
June 30 5.25 to 1.00
September 30 5.00 to 1.00
December 31 5.00 to 1.00
1999 March 31 5.00 to 1.00
June 30 5.00 to 1.00
September 30 4.00 to 1.00
December 31 4.00 to 1.00
2000 March 31 3.50 to 1.00
June 30 3.50 to 1.00
September 30 and each quarter thereafter 3.00 to 1.00
(e) Maintenance of Consolidated Senior Debt to Consolidated EBITDA.
Permit the ratio of Consolidated Senior Debt of the Borrower and its
Subsidiaries to Consolidated EBITDA of the Borrower and its Subsidiaries
for the period of four consecutive fiscal quarters ending on the last day
of each of the fiscal quarters set forth below to be greater than the ratio
set forth opposite such fiscal quarter below:
Quarter Ending Ratio
-------------- ------------
1997 December 31 2.25 to 1.00
1998 March 31 2.25 to 1.00
June 30 2.25 to 1.00
September 30 2.25 to 1.00
December 31 2.25 to 1.00
1999 March 31 2.25 to 1.00
June 30 2.25 to 1.00
September 30 1.75 to 1.00
December 31 1.75 to 1.00
2000 March 31 1.75 to 1.00
June 30 1.75 to 1.00
September 30 and each quarter thereafter 1.50 to 1.00
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8.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness of the Credit Parties under the Loan Documents;
(b) Indebtedness of the Borrower or any Domestic Subsidiary, including
any new Domestic Subsidiary, to the Borrower or any Domestic Subsidiary
arising as a result of intercompany loans;
(c) Indebtedness outstanding on the Closing Date and listed on
Schedule 8.2 and extensions, renewals or replacements thereof provided that
no such extension, renewal or replacement shall increase the principal
amount of the original Indebtedness;
(d) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(e) Indebtedness in respect of obligations under Financing Leases and
purchase money Indebtedness not to exceed $5,000,000 in the aggregate at
any one time outstanding;
(f) Indebtedness in respect of Interest Rate Agreements;
(g) Indebtedness of any Domestic Subsidiary or the Borrower, as the
case may be, to the Borrower or another Domestic Subsidiary from
intercompany transfers of assets made in the ordinary course of business or
to the extent permitted under Sections 8.6 and 8.9;
(h) Guarantee Obligations permitted by Section 8.4;
(i) Indebtedness (i) of any Foreign Subsidiary of the Borrower to the
Borrower or any Domestic Subsidiary of the Borrower and (ii) of any Foreign
Subsidiary of the Borrower to local financial institutions for working
capital purposes; provided that the aggregate principal amount of such
Indebtedness described in clause (i) above plus the aggregate commitments
of all working capital facilities described in clause (ii) above plus the
aggregate amount of investments made pursuant to clause (c) (iii) of
Section 8.9 shall in no event exceed $10,000,000 at any one time;
(j) Indebtedness subject to Liens permitted under Sections 8.3(b),
(c), (d), and (e);
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(k) additional Indebtedness of the Borrower and its Subsidiaries which
are guarantors under the Guarantee and Collateral Agreement not exceeding
$5,000,000 in aggregate principal amount at any one time outstanding, which
Indebtedness may be secured to the extent permitted by Section 8.3(n);
(l) Indebtedness of the Borrower or any of its Subsidiaries (i) to the
seller representing the purchase price in a Permitted Acquisition, (ii)
assumed in connection with any Permitted Acquisition or (iii) assumed in
connection with the ARISB Acquisition; provided that (A) such assumed
Indebtedness under clause (ii) was not created in contemplation of such
acquisition, (B) the aggregate amount of such Indebtedness in clauses (i)
and (ii) shall not exceed $10,000,000 and the aggregate amount of such
Indebtedness in clause (iii) shall not exceed $250,000 (provided that
Indebtedness assumed in connection with the ARISB Acquisition which is in
excess of $250,000 shall be subject to the $10,000,000 limit imposed in
connection with Permitted Acquisitions) and (C) at the time of incurrence
the requirements of Section 8.9(l) shall be satisfied;
(m) Lease Transaction Obligations of Triad Financial and the Foreign
Lease Subsidiaries, having terms similar to those applicable to such
Indebtedness on the date hereof; provided that (i) the aggregate of such
Indebtedness for which there is recourse to Triad Financial and the Foreign
Lease Subsidiaries in excess of 20% of the aggregate principal amount of
such Lease Transaction Obligations shall not exceed $10,000,000 (less the
aggregate amount of Indebtedness for which there is recourse to FinanceCo),
(ii) the aggregate portion of such Indebtedness for which there is recourse
to Triad Financial and the Foreign Lease Subsidiaries at any time shall not
exceed the greater of (A) $35,000,000 and (B) an amount equal to
Consolidated EBITDA of CCI and its consolidated Subsidiaries for the period
of four consecutive fiscal quarters most recently ended (in the case of
both (A) and (B), less the aggregate amount of Indebtedness for which there
is recourse to FinanceCo) and (iii) the aggregate portion of such
Indebtedness for which there is recourse to Triad Financial and the Foreign
Lease Subsidiaries shall not exceed $60,000,000 (less the aggregate amount
of Indebtedness for which there is recourse to FinanceCo) in any event;
(n) Lease Transaction Obligations of FinanceCo, having terms similar
to those applicable to such Indebtedness on the date hereof; provided that
(i) the aggregate of such Indebtedness for which there is recourse to
FinanceCo in excess of 20% of the aggregate principal amount of such Lease
Transaction Obligations shall not exceed $10,000,000 (less the aggregate
amount of Indebtedness for which there is recourse to Triad Financial and
the Foreign Lease Subsidiaries), (ii) the aggregate portion of such
Indebtedness for which there is recourse to FinanceCo at any time shall not
exceed the greater of (A) $35,000,000 and (B) an amount equal to
Consolidated EBITDA of CCI and its consolidated Subsidiaries for the period
of four consecutive fiscal quarters most recently ended (in the case of
both (A) and (B), less the aggregate amount of Indebtedness for which there
is recourse to Triad Financial and the Foreign Lease Subsidiaries), (iii)
the aggregate portion of such Indebtedness for which there is recourse to
FinanceCo shall not exceed $60,000,000 (less the
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aggregate amount of Indebtedness for which there is recourse to Triad
Financial and the Foreign Lease Subsidiaries) in any event and (iv) such
Lease Transaction Obligations are incurred solely to finance the purchase
from Triad Financial of lease payments which have been or will be financed
in the same quarter by Lease Transaction Obligations of Triad Financial;
(o) Indebtedness of Customer Partnerships in an aggregate principal
amount not to exceed $5,000,000; and
(p) Indebtedness of the Borrower in respect of the Senior Subordinated
Indebtedness, including any permanent refinancing thereof so long as any
Net Cash Proceeds of such refinancing after giving effect thereto are
applied in accordance with Section 2.10, in an aggregate principal amount
not to exceed $100,000,000.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens created by the Security Documents in favor of the
Administrative Agent for the benefit of the Lenders and the Administrative
Agent;
(b) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect to contested taxes are maintained on the books of CCI or the
Borrower or their respective Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of Foreign Subsidiaries, generally
accepted accounting principles in effect from time to time in their
respective jurisdictions of incorporation);
(c) carriers', landlord's, warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, Intellectual Property, statutory
obligations, insurance contracts, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(f) easements, rights-of-way, zoning restrictions, restrictions and
other similar encumbrances (i) previously or hereinafter incurred in the
ordinary course of business which, in the aggregate, are not material in
amount and, in the case of such encumbrances on any property, do not
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary or (ii) which are set forth in any "marked up"
commitments for title insurance delivered to the Administrative Agent after
the Closing Date;
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(g) Liens in existence on the Closing Date listed on Schedule 8.3,
securing Indebtedness permitted by Section 8.2(c) (including extensions,
renewals and replacements of such Indebtedness as permitted under Section
8.2(c)), provided that no such Lien is spread to cover any additional
property (other than after acquired title in or on such property and
proceeds of the existing collateral in accordance with the instrument
creating such Lien) after the Closing Date and that the amount of
Indebtedness secured thereby is not increased except pursuant to the
instrument creating such Lien (without any modification thereof);
(h) purchase money Liens and Liens in respect of Financing Leases upon
or in any property acquired or held by the Borrower or any of its
Subsidiaries to secure Indebtedness permitted under Section 8.2(e) incurred
solely for the purpose of financing the acquisition of such property, and
Liens existing on such property at the time of its acquisition or existing
on property of any Person that becomes a Subsidiary after the date hereof
at the time such Person becomes a Subsidiary (other than any such Lien
created in contemplation of such acquisition);
(i) Liens on the property of the Borrower or any of its Subsidiaries
in favor of landlords securing licenses, subleases or leases permitted
hereunder;
(j) licenses, leases or subleases permitted hereunder granted to
others not interfering in any material respect in the business of the
Borrower or any of its Subsidiaries;
(k) attachment or judgment Liens (other than judgment Liens paid or
fully covered by insurance which are not outstanding for more than sixty
days) in an aggregate amount outstanding at any one time not in excess of
$3,000,000;
(l) Liens arising from precautionary Uniform Commercial Code financing
statement filings with respect to operating leases or consignment
arrangements entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business;
(m) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(n) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Borrower and all of its Subsidiaries) $2,000,000
in aggregate amount at any time outstanding;
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(o) Liens on Leased Equipment and Chattel Paper of Triad Financial,
FinanceCo and the Foreign Lease Subsidiaries securing Lease Transaction
Obligations; and
(p) Liens securing Indebtedness permitted by clauses (ii) and (iii) of
Section 8.2(l) provided that (i) such Liens existed at the time of the
relevant Permitted Acquisition or the ARISB Acquisition, as the case may
be, and were not created in anticipation thereof, (ii) any such Lien is not
spread to cover any other property or assets upon or following consummation
of such Permitted Acquisition or the ARISB Acquisition, as the case may be
and (iii) the amount of Indebtedness secured thereby is not increased.
8.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer to
exist any Guarantee Obligation except:
(a) Guarantee Obligations pursuant to the Loan Documents;
(b) guarantees of Indebtedness permitted pursuant to Section 8.2(c) in
existence on the Closing Date and set forth on Schedule 8.4 and extensions,
renewals and replacements thereof, provided, however, that no such
extension, renewal or replacement shall (i) amend or modify the
subordination provisions, if any, contained in the original guarantee, (ii)
increase the principal amount of such indebtedness guaranteed by the
original guarantee, or (iii) adversely affect the interests of the Lenders
under this Agreement or any other Loan Document in any material respect;
(c) the L/C Obligations;
(d) indemnities in favor of the companies issuing title insurance
policies insuring the title to any property;
(e) surety bonds issued in respect of the type of obligations
described in Section 8.3(e);
(f) indemnities made in the Commitment Letter, the Loan Documents and
the Transaction Documents and in the monitoring and oversight agreement and
the financial advisory agreement described in Section 8.7(a)(iv) and in the
corporate charter and/or bylaws of the Borrower and its Subsidiaries;
(g) indemnities and guarantees of Indebtedness expressly permitted
hereunder made in the ordinary course of business, provided that such
indemnities or guarantees could not individually or in the aggregate have a
Material Adverse Effect;
(h) agreements by the Borrower (and Triad Financial, in the case of
FinanceCo) to make equity contributions and or subordinated loans to Triad
Financial, FinanceCo and the Foreign Lease Subsidiaries to support payment
of their obligations in respect of Lease Transaction Obligations comparable
to those made under operating and support agreements to which the Borrower
and Triad Financial are parties in effect on the date hereof as listed on
Schedule 5.25 hereto; and
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(i) contingent obligations in respect of Indebtedness permitted under
Section 8.2(o) arising solely as a result of the status of the Borrower as
a general partner in Customer Partnerships;
(j) guarantees by the Borrower and its Subsidiaries which are
guarantors under the Guarantee and Collateral Agreement of Indebtedness
permitted by Section 8.2(k);
(k) guarantees by the Borrower and its domestic Subsidiaries of
Indebtedness of Foreign Subsidiaries permitted by clause (ii) of Section
8.2(i); and
(l) Guarantee Obligations of any Subsidiary which is a Guarantor in
respect of the Senior Subordinated Indebtedness; provided that such
Guarantee Obligations are subordinated to the obligations of such
Subsidiary under the Loan Documents to the same extent as are the
obligations of the Borrower in respect of the Senior Subordinated
Indebtedness.
8.5 Limitation on Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except (i) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more Wholly
Owned Subsidiaries of the Borrower (provided that no Domestic Subsidiary may be
merged or consolidated with or into any Foreign Subsidiary unless the Domestic
Subsidiary shall be the surviving corporation) and (ii) any Subsidiary of the
Borrower may liquidate or dissolve if in connection therewith all of its assets
are transferred to the Borrower or any Wholly Owned Subsidiary of the Borrower
(provided that no Domestic Subsidiary may transfer its assets to a Foreign
Subsidiary).
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, except:
(a) obsolete or worn out property disposed of in the ordinary course
of business or property that is no longer useful in the conduct of the
Borrower's business disposed of in the ordinary course of business;
(b) the sale, transfer or exchange of inventory in the ordinary course
of business;
(c) transfers resulting from any casualty or condemnation of property
or assets;
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(d) any sale or other transfer of any property or assets constituting
fixed assets for at least 75% cash, provided that the aggregate net cash
proceeds of the sales and transfers made pursuant to this paragraph (d) in
the aggregate do not exceed $1,000,000 in any fiscal year;
(e) intercompany sales or transfers of assets made in the ordinary
course of business; provided that in no event may the Borrower or its
Domestic Subsidiaries transfer assets to any Foreign Subsidiaries having a
value in excess of $5,000,000;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with the
business of CCI and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business;
(h) the sale or discount of overdue accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof;
(i) leases and sales of Leased Equipment and Chattel Paper in
connection with any Lease Transaction and discounting programs and any
refinancings thereof;
(j) dispositions permitted by Section 8.5(ii); and
(k) the sale of property at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇.
8.7 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any class of Capital Stock of the Borrower or any Subsidiary or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property, obligations of the Borrower or any
Subsidiary or otherwise (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that:
(a) the Borrower may make Restricted Payments to CCI, so long as
(except with respect to clause (iii) below) no Event of Default (or, in the
case of clause (iv) below an Event of Default which relates to a payment
default under Section 9(a)) has occurred and is continuing or would occur
and be continuing after giving effect to any such Restricted Payment:
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(i) the proceeds of which shall be used to repurchase the Capital
Stock or other securities of CCI from outside directors, employees or
members of the management of CCI, the Borrower or any Subsidiary, in
an aggregate amount not in excess of $8,000,000, net of the proceeds
received by CCI as a result of any resales of any such Capital Stock
or other securities (and subject to the proviso set forth in clause
(v) below);
(ii) the proceeds of which shall be applied by CCI directly to
pay out of pocket expenses for administrative, legal and accounting
services provided by third parties which are reasonable and customary
and incurred in the ordinary course of business, to pay outside
directors' fees and to pay franchise fees and similar costs; provided,
however that any such administrative expenses shall not exceed an
aggregate amount of $1,000,000 in each fiscal year;
(iii) the proceeds of which shall be used to pay taxes which are
due and payable of CCI and the Borrower as part of a consolidated
group;
(iv) the proceeds of which shall be used to pay management fees
to HMTF and its Affiliates in accordance with the terms of its
monitoring and oversight agreement and financial advisory agreement;
or
(v) if such Restricted Payment is a purchase by CCI of its
Capital Stock or a distribution to CCI to permit CCI to purchase its
Capital Stock, in either case, made in order to fulfil the obligations
of CCI, the Borrower or any of its Subsidiaries under an employee
stock purchase plan or similar plan covering employees of CCI or any
Subsidiary as from time to time in effect in an aggregate net amount
not to exceed $8,000,000 and provided that the aggregate amount of
Restricted Payments made pursuant to clause (i) above and this clause
(v) shall not exceed $8,000,000 in the aggregate, net of the proceeds
received by CCI as a result of resale of any Capital Stock or
securities of CCI of the types contemplated by such clause (i) and
this clause (v).
(b) any Subsidiary of the Borrower may make Restricted Payments to the
Borrower or any Subsidiary that is a "Grantor" under the Guarantee and
Collateral Agreement;
(c) Permitted Issuances may be made;
(d) the Borrower may make Restricted Payments to CCI, and CCI may
simultaneously make corresponding Restricted Payments to its shareholders,
in any fiscal year in an aggregate amount of up to 50% of Consolidated Net
Income for the
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immediately preceding fiscal year as long as (i) no Default or Event of
Default has occurred or would result therefrom and (ii) the ratio of
Consolidated Total Debt on the last day of the most recent fiscal quarter
preceding the date of making such Restricted Payments to Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such
day is no greater than 2.50 to 1.00 after giving effect thereto.
8.8 Limitation on Capital Expenditures. (a) Make or commit to make any
Capital Expenditure, except for expenditures in the ordinary course of business
not exceeding, in the aggregate for the Borrower and its Subsidiaries during any
of the fiscal years of the Borrower set forth below (or, with respect to the
first such fiscal year only, the period from the Closing Date to the end of such
fiscal year) the amount set forth opposite such fiscal year below:
Fiscal Year Amount
----------- ------
1997 $21,000,000
1998 21,500,000
1999 22,000,000
2000 and thereafter 22,500,000
; provided that (i) each year after the year 2000, the limitation set forth in
this clause (a) shall increase by $500,000 per year and (ii) the lesser of (A)
100% of any amount not used in any fiscal year and (B) $10,000,000 may be
carried forward only into the next succeeding fiscal year.
(b) In addition to the Capital Expenditures permitted pursuant to paragraph
(a) of this Section 8.8, to the extent such proceeds are not otherwise utilized
pursuant to the last paragraph of Section 8.9 or 8.9(l), the Borrower and its
Subsidiaries may make additional Capital Expenditures (which shall not be
counted in the limitations set forth in paragraph (a) of this Section 8.8) as
follows: (i) Capital Expenditures consisting of the investment of Net Cash
Proceeds not required to be applied to prepay the Loans pursuant to Section
2.10, and (ii) Capital Expenditures consisting of the investment of Excess Cash
Flow generated during prior fiscal years (beginning with Excess Cash Flow
generated in the fiscal year ended in September 1997 but, in each case,
including the retained portion of Excess Cash Flow for only those periods where
the Excess Cash Flow payment has theretofore occurred) and not required to be
applied to prepay the Loans pursuant to Section 2.10.
8.9 Limitation on Investments, Loans and Advances. Make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or make any other investment in, any Person ("Investments"), except:
(a) extensions of trade credit and investments in leases in the
ordinary course of business;
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(b) Investments in Cash Equivalents;
(c) (i) Investments by the Borrower in any Domestic Subsidiary,
including any new Subsidiary, (ii) intercompany loans to the extent
permitted by Section 8.2 and (iii) Investments by the Borrower in any
Foreign Subsidiary (it being agreed for purposes of this clause (iii) that
receivables arising solely from actual bona fide intercompany transactions
entered into in the ordinary course of business shall not constitute
Investments) in an amount not to exceed $10,000,000 minus the amount of any
Indebtedness of Foreign Subsidiaries permitted by Section 8.2(i);
(d) loans and advances by the Borrower or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding $2,000,000 at any one time outstanding;
(e) loans, advances or Investments in existence on the Closing Date
and listed on Schedule 8.9, and extensions, renewals, modifications or
restatements or replacements thereof, provided that no such extension,
renewal, modification or restatement shall (i) increase the amount of the
original loan, advance or investment, or (ii) adversely affect the
interests of the Lenders with respect to such original loan, advance or
investment or the interests of the Lenders under this Agreement or any
other Loan Document in any material respect;
(f) Investments permitted by Sections 8.2(b), 8.4(a), (b), (g), (h),
(i), (j), (k) and (l) and 8.8;
(g) promissory notes and other similar non-cash consideration received
by the Borrower and its Subsidiaries in connection with the dispositions
permitted by Section 8.6;
(h) Investments consisting of Interest Rate Agreements;
(i) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business; and
(j) in addition to the foregoing, Investments by the Borrower or its
Subsidiaries in an aggregate amount (at cost, without regard to any write
down or write up thereof) at any one time outstanding not to exceed
$5,000,000;
(k) the Borrower may purchase certain assets and liabilities of ADP
Claims Solutions Group, Inc. utilized in the automotive recycling
information service business (the "ARISB Acquisition"), provided that (i)
to the extent that the cash consideration therefor exceeds $9,000,000 or
the assumed debt in connection therewith exceeds $250,000, such excess(es)
shall be a utilization of paragraph (j) above or paragraph (l)
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below to the extent permitted thereunder, (ii) the Administrative Agent
shall have received, with copies for each Lender a reasonable time prior to
the ARISB Acquisition, a certificate of a Responsible Officer of the
Borrower after giving effect to the ARISB Acquisition showing the aggregate
purchase price (including the assumption of any Indebtedness) for the ARISB
Acquisition and Permitted Acquisitions under paragraph (l) below made by
the Borrower and its Subsidiaries since the Closing Date, (iii) such
actions as may be required or reasonably requested to ensure that the
Collateral Agent, for the ratable benefit of the Secured Parties, has a
perfected first priority security interest in any assets acquired, subject
to Liens permitted by Section 8.3, shall have been taken and (iv) (I) on a
pro forma basis for the period of four consecutive fiscal quarters most
recently ended (assuming the consummation of the ARISB Acquisition and the
incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period of four consecutive fiscal
quarters), the Borrower shall be in compliance with the covenants contained
in Section 8.1 and (II) the Administrative Agent shall have received
calculations in reasonable detail reasonably satisfactory to it showing
compliance with the requirements of this clause (iv) certified by a
Responsible Officer of the Borrower; and
(l) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, Investments by the Borrower
and its Subsidiaries resulting from Permitted Acquisitions in an aggregate
amount which may include Indebtedness permitted by Section 8.2(l) not to
exceed the sum of (A) the amount of $40,000,000 and (B) the amount of
common stock of CCI issued subsequent to the Closing Date in connection
with Permitted Acquisitions and (C) the portion of Excess Cash Flow for all
prior fiscal years commencing with 1997 retained by the Borrower and not
utilized pursuant to Section 8.8(b) or the last sentence of this Section
8.9, provided, that (i) the Administrative Agent shall have received, with
copies for each Lender at least 15 days prior to such Permitted
Acquisition, (I) such opinions (including with respect to environmental
matters), certificates and copies of agreements (including any Permitted
Acquisition documents) as it shall reasonably request and (II) a
certificate of a Responsible Officer of the Borrower after giving effect to
such Permitted Acquisition showing the aggregate purchase price (including
the assumption of any Indebtedness) for Permitted Acquisitions made by the
Borrower and its Subsidiaries since the Closing Date, (ii) such actions as
may be required or reasonably requested to ensure that the Collateral
Agent, for the ratable benefit of the Secured Parties, has a perfected
first priority security interest in any assets acquired, subject to Liens
permitted by Section 8.3, shall have been taken and (iii) (I) on a pro
forma basis for the period of four consecutive fiscal quarters most
recently ended (assuming the consummation of such Permitted Acquisition and
the incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period of four consecutive fiscal
quarters), the Borrower shall be in compliance with the covenants contained
in Section 8.1 and (II) the Administrative Agent shall have received
calculations in reasonable detail reasonably satisfactory to it showing
compliance with the requirements of this clause (iii) certified by a
Responsible Officer of the Borrower.
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In addition to the Investments permitted pursuant to this Section 8.9, to
the extent such proceeds are not otherwise utilized pursuant to Section 8.8(b)
or 8.9(l), the Borrower and its Subsidiaries may make additional Investments
(which shall not be counted in the limitations set forth above) as follows: (i)
Investments consisting of the investment of Net Cash Proceeds not required to be
applied to prepay the Loans pursuant to Section 2.10, including (x) with respect
to the investment of proceeds of the insurance and condemnation proceeds not
required to prepay the Loans pursuant to Section 2.10 and (y) with respect to
the investment of proceeds of the sale of assets which are permitted pursuant to
Section 8.6; and (ii) Investments consisting of the investment of Excess Cash
Flow generated during prior fiscal years (beginning with Excess Cash Flow
generated in the fiscal year ended in September 1997 but, in each case,
including the retained portion of the Excess Cash Flow for only those periods
where the Excess Cash Flow payment has theretofore occurred) and not required to
be applied to prepay the Loans pursuant to Section 2.10.
8.10 Modifications of Lease Transaction Obligations. Amend, supplement or
otherwise modify any of the provisions of any Lease Transaction Obligations in a
manner that adversely affects the interests of the Lenders under this Agreement
or any other Loan Document in any material respect.
8.11 Limitation on Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than a wholly owned Subsidiary) unless such transaction is (i) otherwise
permitted under this Agreement, or (ii) (x) in the ordinary course of the
Borrower's or such Subsidiary's business and (y) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person which is
not an Affiliate.
(b) In addition, notwithstanding the foregoing, the Borrower and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement of
expenses payable to directors of the Borrower;
(ii) the payment to HMTF and its Affiliates of fees and expenses
pursuant to a monitoring and oversight agreement and financial advisory
agreement approved by the board of directors of the Borrower; and
(iii) the employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith.
8.12 Limitation on Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by the Borrower or any Subsidiary of real
or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such
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Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or such Subsidiary; provided that this Section 8.12 shall not prohibit
any sale and leaseback resulting from the incurrence of any lease in respect of
any capital asset entered into within 120 days of the acquisition of such
capital asset for the purpose of providing permanent financing for such capital
asset.
8.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower to end on a day other than September 30; provided that the Borrower may
change such fiscal year upon the approval of the Administrative Agent.
8.14 Restrictions Affecting Subsidiaries. Enter into with any Person, or
suffer to exist any agreement which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to (a) create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, other than (i) this Agreement, (ii) any industrial
revenue bonds, purchase money mortgages or Financing Leases or any other
agreement or transaction permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against the assets financed
thereby), (iii) as required pursuant to financing arrangements entered into by
Triad Systems Ireland Limited with the Industrial Development Authority of
Ireland as in effect on the date hereof or such other similar financing
arrangements entered into in furtherance of the development of CCI and its
Subsidiaries' business outside of the United States provided that the aggregate
amount of assets of CCI or any Subsidiary of CCI subject to such restrictions
shall not exceed 5% of Consolidated Assets and (iv) restrictions with respect to
maintaining the special purpose entity treatment of FinanceCo or (b) pay
dividends or make other distributions or pay any Indebtedness owed to the
Borrower or any of its Subsidiaries except as permitted by this Agreement and
the other Loan Documents, as required pursuant to financing arrangements entered
into by Triad Systems Ireland Limited with the Industrial Development Authority
of Ireland as in effect on the date hereof or such other similar financing
arrangements entered into in furtherance of the development of CCI and its
Subsidiaries' business outside of the United States provided that the aggregate
amount of assets of CCI or any Subsidiary of CCI subject to such restrictions
shall not exceed 5% of Consolidated Assets, and pursuant to restrictions imposed
with respect to maintaining the special purpose entity treatment of FinanceCo.
8.15 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or which
are reasonably related thereto.
8.16 CCI Holding Company Status; Ownership of Borrower. Suffer to exist any
change in the passive holding company status of CCI after the CCI Asset
Contribution except as otherwise permitted by Section 11.6.
8.17 Amendments to Corporate Documents; Transaction Documents; Licenses.
(a) Amend its certificate of incorporation or by-laws unless such amendment does
not adversely affect the interests of any Lender in any material respect, (b)
amend, supplement or
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otherwise modify the terms and conditions of the indemnities and licenses
furnished to the Borrower or any of its Subsidiaries pursuant to any of the
Transaction Documents such that after giving effect thereto such indemnities or
licenses shall be materially less favorable to the interests of the Credit
Parties or the Lenders with respect thereto or (c) otherwise amend, supplement
or otherwise modify the terms and conditions of any of the Transaction Documents
except to the extent that any such amendment, supplement or modification could
not reasonably be expected to have a Material Adverse Effect.
8.18 Limitation on Optional Payments and Modifications of Debt Instruments,
etc. (a) Make or offer to make any payment, prepayment, repurchase or redemption
of (except pursuant to a permanent refinancing of the Senior Subordinated Notes
with other Senior Subordinated Indebtedness) or otherwise defease or segregate
funds with respect to the Senior Subordinated Indebtedness or any guarantee
thereof (except mandatory payments of interest, fees and expenses required by
the terms of the agreement governing or instruments evidencing such
indebtedness, but only to the extent permitted under the subordination
provisions applicable thereto);
(b) amend, modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Senior Subordinated Indebtedness or any guarantee thereof or the Senior
Subordinated Note Indenture or other agreement evidencing Senior Subordinated
Indebtedness or any guarantee thereof:
(i) which amends or modifies the subordination provisions contained
therein;
(ii) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium payable whether at
maturity, at a date fixed for prepayment or by acceleration or otherwise of
such Indebtedness, or increases the amount of, or accelerates the time of
payment of, any fees payable in connection therewith;
(iii) which relates to the affirmative or negative covenants, events
of default or remedies under the documents or instruments evidencing such
Indebtedness and the effect of which is to subject the Borrower or any of
its Subsidiaries to any more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the Lenders as
senior creditors or the interests of the Lenders under this Agreement or
any other Loan Document in any respect.
(c) make any payment in cash on any equity or debt security that may be
made under the terms thereof by the issuance of any security of the same nature;
or
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(d) designate any Indebtedness as "Designated Senior Indebtedness" for the
purposes of the Senior Subordinated Note Indenture or any other agreement
evidencing the Senior Subordinated Indebtedness.
ARTICLE 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan and/or
Note or any L/C Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan and/or
Note, or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower, CCI or any of their Subsidiaries herein or in any other Loan
Document or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or
as of the date made or deemed made; or
(c) The Borrower, CCI or any of their Subsidiaries shall default in
the performance or observance of any agreement contained in Article 8 or
11; or
(d) The Borrower, CCI or any of their Subsidiaries shall default in
the observance or performance of any other agreement contained in this
Agreement or in any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Article), and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower, CCI or any of their Subsidiaries shall (i) default
(x) in any payment of principal of or interest on any Indebtedness (other
than the Loans) or (y) in the payment of any Guarantee Obligation (other
than Guarantee Obligations pursuant to the Loan Documents), having an
outstanding principal amount individually or in the aggregate for both of
clauses (x) and (y) in excess of $3,000,000 beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness
or Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
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(f) (i) The Borrower, CCI or any of their Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or any of the Borrower, CCI or any
of their Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower, CCI
or any of their Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower, CCI or any of their
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Borrower, CCI or any of their Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower, CCI or any of their Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts (other than intercompany debts) as they become
due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to result in a Material Adverse Effect; or
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(h) One or more judgments or decrees shall be entered against the
Borrower or any of their Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $3,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) The Borrower, CCI or any of their Subsidiaries shall incur any
liability (not paid or fully covered by insurance) under any Environmental
Law in an amount which would result in a Material Adverse Effect; or
(j) Any Loan Document shall, at any time, cease to be in full force
and effect (unless released by the Administrative Agent at the direction of
the Required Lenders or as otherwise permitted under this Agreement or the
other Loan Documents) or shall be declared null and void (and, if such
invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Administrative Agent and the Lenders
thereunder, the applicable Credit Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative Agent or
such shorter time period as is specified by the Administrative Agent in
such notice and is reasonable in the circumstances), or the validity or
enforceability thereof shall be contested by any Credit Party, or any of
the Liens intended to be created by any Security Document shall cease to be
or shall not be a valid and perfected Lien having the priority contemplated
thereby (and, if such invalidity is such so as to be amenable to cure
without materially disadvantaging the position of the Administrative Agent
and the Lenders, as secured parties thereunder, the applicable Credit Party
shall have failed to cure such invalidity within 30 days after notice from
the Administrative Agent or such shorter time period as specified by the
Administrative Agent in such notice and is reasonable in the
circumstances); or
(k) A Change of Control shall occur; or
(l) The Senior Subordinated Notes or the guarantees thereof shall
cease, for any reason, to be validly subordinated to the Obligations or the
obligations of the Subsidiaries which are Guarantors under the Guarantee
and Collateral Agreement, as the case may be, as provided in the Senior
Subordinated Note Indenture, or any Credit Party, or any Affiliate of any
Credit Party shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Letters of Credit and all other amounts owing under
this Agreement and any Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
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thereon), the maximum amount available to be drawn under all outstanding Letters
of Credit and all other amounts owing under this Agreement and any Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. All payments under this Article 9 on account of undrawn Letters of
Credit shall be made by the Borrower directly to a cash collateral account
established for such purpose for application to the Borrower's obligations with
respect thereto as drafts are presented under the Letters of Credit. Any
remaining amounts paid by the Borrower in respect of such undrawn Letters of
Credit shall be returned to the Borrower after the last expiry date of the
Letters of Credit and after the Obligations have been paid in full. Except as
expressly provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
ARTICLE 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and appoints
Chase as the Administrative Agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes Chase, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, controlling persons, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's own
gross negligence or wilful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document or for any failure of any
Credit Party to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the
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observance or performance of any of the agreements contained in, or conditions
of, this Agreement, any Notes or any other Loan Document, or to inspect the
properties, books or records of any Credit Party.
10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and any Notes and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of any Credit
Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and made its
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own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Credit Parties
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or wilful misconduct or, in the case of indemnified
liabilities arising under this Agreement, any Notes and the other Loan
Documents, from material breach by the Administrative Agent of this Agreement,
any Notes or the other Loan Documents, as the case may be. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Credit Parties as though the
Administrative Agent was not the Administrative Agent hereunder and under the
other Loan Documents. With respect to their Loans made or renewed by it and any
Note issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
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10.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be approved by the
Borrower (which approval shall not be unreasonably withheld), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
10.10 Additional Ministerial Powers of Administrative Agent. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
release any Lien covering any asset of CCI or any of its Subsidiaries
(including, without limitation, any Properties, accounts receivable or
inventory) that is the subject of a disposition, sale or assignment which is
permitted under this Agreement or, subject to Section 12.1, which has been
consented to by the Required Lenders.
ARTICLE 11. GUARANTEE
11.1 Guarantee. To induce the Lenders to execute and deliver this Agreement
to make Loans and to issue and participate in Letters of Credit for the account
of the Borrower, and in consideration thereof, CCI hereby unconditionally and
irrevocably guarantees to the Administrative Agent, the Lenders and their
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, and CCI further agrees to pay the expenses which
may be paid or incurred by the Administrative Agent or the Lenders in collecting
any or all of the Obligations and/or enforcing any rights under this Article 11
or under the Obligations in accordance with Section 12.5. The guarantee
contained in this Article 11 shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrower may be free from any
Obligations.
11.2 Waiver of Subrogation. Notwithstanding any payment or payments made by
CCI in respect of the Obligations or any setoff or application of funds of CCI
by the Administrative Agent or the Lenders, until payment in full of the
Obligations and the termination of the Commitments and the Letters of Credit,
CCI shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or the Lenders against the Borrower or any collateral
security or guarantee or right of offset held by the Administrative Agent or the
Lenders for the payment of the Obligations, nor shall CCI seek any reimbursement
from the Borrower in respect of payments made by CCI hereunder until the
Obligations are paid in full.
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11.3 Modification of Obligations. CCI hereby consents that, without the
necessity of any reservation of rights against CCI and without notice to or
further assent by CCI, any demand for payment of the Obligations made by the
Administrative Agent, the Issuing Lender or the Lenders may be rescinded by the
Administrative Agent, the Issuing Lender or the Lenders and the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent, the Issuing Lender or the
Lenders and that this Agreement, any Notes and the other Loan Documents,
including, without limitation, any Letter of Credit Application, any collateral
security document or other guarantee or document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent, the Issuing Lender or the Lenders may deem advisable from
time to time, and, to the extent permitted by applicable law, any collateral
security or guarantee or right of offset at any time held by the Administrative
Agent, the Issuing Lender or the Lenders for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released, all without the necessity
of any reservation of rights against CCI and without notice to or further assent
by CCI which will remain bound hereunder notwithstanding any such renewal,
extension, modification, acceleration, compromise, amendment, supplement,
termination, sale, exchange, waiver, surrender or release. The Administrative
Agent, the Issuing Lender and the Lenders shall not have any obligation to
protect, secure, perfect or insure any collateral security document or property
subject thereto at any time held as security for the Obligations. When making
any demand hereunder against CCI, the Administrative Agent, the Issuing Lender
or the Lenders may, but shall be under no obligation to, make a similar demand
on any other party or any other guarantor, and any failure by the Administrative
Agent, the Issuing Lender or the Lenders to make any such demand or to collect
any payments from the Borrower or any such other guarantor shall not relieve CCI
of its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Administrative Agent, the Issuing Lender or the Lenders against CCI. For the
purposes of this Section "demand" shall include the commencement and continuance
of any legal proceedings.
11.4 Waiver by CCI. CCI waives any and all notice of the creation, renewal,
extension or accrual of the Obligations and notice of or proof of reliance by
the Administrative Agent, the Issuing Lender and the Lenders upon the guarantee
contained in this Article 11 or acceptance of the guarantee contained in this
Article 11, and the Obligations, and any of them, shall conclusively be deemed
to have been created, contracted, continued or incurred in reliance upon the
guarantee contained in this Article 11, and all dealings between CCI and the
Administrative Agent, the Issuing Lender or the Lenders shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Article 11. CCI waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or CCI with respect to any Obligations. This guarantee shall be
construed as a continuing absolute and unconditional guarantee of payment
without regard to the validity, regularity or enforceability of the Credit
Agreement, any Note or any other Loan Document, including, without limitation,
any Letter of Credit Application or any collateral security or guarantee
therefor or
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right of offset with respect thereto at any time or from time to time held by
the Administrative Agent, the Issuing Lender or the Lenders and without regard
to any defense, setoff or counterclaim which may at any time be available to or
be asserted by the Borrower against the Administrative Agent, the Issuing
Lender, the Lenders or any other Person, or by any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or CCI) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for any of its Obligations, or of CCI under the
guarantee contained in this Article 11 in bankruptcy or in any other instance,
and the obligations and liabilities of CCI hereunder shall not be conditioned or
contingent upon the pursuit by the Administrative Agent, the Issuing Lender or
the Lenders or any other Person at any time of any right or remedy against the
Borrower or against any other Person which may be or become liable in respect of
any Obligations or against any collateral security or guarantee therefor or
right of offset with respect thereto. The guarantee contained in this Article 11
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon CCI and the successors and assigns thereof, and
shall inure to the benefit of the Lenders and their successors, indorsees,
transferees and assigns, until the Obligations shall have been paid in full and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of this Agreement the Borrower may be free from any Obligations.
11.5 Reinstatement. The guarantee contained in this Article 11 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligations is rescinded or must otherwise
be restored or returned by the Administrative Agent, the Issuing Lender or the
Lenders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of CCI or the Borrower or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for,
CCI, the Borrower or any substantial part of their respective property, or
otherwise, all as though such payments had not been made.
11.6 Negative Covenants. From and after the Closing Date until the
Obligations shall have been paid in full, the Letters of Credit shall have
expired or been terminated and the Commitments shall have been terminated, CCI
hereby agrees that it shall not (i) assume or otherwise incur or suffer to exist
any Indebtedness (other than Indebtedness in the nature of Indebtedness
specified in Section 8.2(d) or (j)) or Guarantee Obligation (other than (A) the
Guarantee Obligations of CCI pursuant to the Guarantee and Security Agreement,
(B) Guarantee Obligations in the nature of the Guarantee Obligations specified
in Section 8.4(d), 8.4(e) and 8.4(f), (C) Guarantee Obligations of CCI in
respect of real property leases and/or personal property operating leases of the
Borrower and its Subsidiaries in ordinary course of business, but in any event
not in excess of an aggregate amount of $5,000,000 at any one time outstanding
or (D) indemnities in favor of officers, directors and employees of CCI in the
ordinary course of business and in the connection with the ownership of the
Borrower's capital stock), (ii) create, incur, assume or suffer to exist any
Lien upon any of its assets (other than pursuant to the Security Documents and
other than Liens in the nature of the Liens specified in Section 8.3(b), (d) or
(e)), (iii) cease to own, directly or indirectly, 100% of the Capital Stock of
the Borrower, (iv) amend its certificate of incorporation or by-laws or any of
the Transaction Documents to which it is a party unless such amendment does not
adversely affect the interests of any Lender in any material respect,
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(v) engage in any activities other than (A) owning the stock of the Borrower,
(B) its activities incident to the performance of (x) the Loan Documents and (y)
the issuance and/or sale of its common stock or options or warrants in respect
of its Capital Stock, provided that the proceeds thereof are applied as set
forth in Section 2.10, (C) transactions pursuant to or in connection with the
Transactions and (D) activities contemplated by this Article 11 or (vi) make any
Restricted Payment except as permitted by Sections 8.7(a)(i), 8.7(a)(v), 8.7(c)
and 8.7(d). Notwithstanding any provision of clause (v) of the preceding
sentence to the contrary, CCI may continue to own and perform its obligations in
respect of assets owned by it on the Closing Date until all required consents
under applicable Contractual Obligations to the contribution of such assets to
the Borrower are obtained. CCI agrees to use its best efforts to (I) obtain all
such consents as promptly as possible following the Closing Date and (II) cause
its customer contracts to be assigned to the Borrower and all payments made and
receivables due thereunder to be payable to, and invoiced in the name of, the
Borrower. CCI will cause all business arising after the Closing Date (other than
business existing on the Closing Date which it is not able to transfer to the
Borrower because of applicable Contractual Obligations) to be conducted through
the Borrower and its Subsidiaries.
ARTICLE 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement, any Note, any other
Loan Document, nor any terms hereof or thereof may be waived, amended,
supplemented or otherwise modified except in accordance with the provisions of
this Section. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the applicable Credit Parties written amendments, supplements or
modifications hereto and to any Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or any Notes or the other
Loan Documents or changing in any manner the rights of the Lenders or of the
Borrower or CCI or any other Person hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or any Notes or the other Loan Documents or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (i) reduce the aggregate amount
or extend the scheduled date of maturity of any Loan or of any installment
thereof or any L/C Obligation reimbursement obligation in respect of any Letter
of Credit, or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the aggregate
amount or extend the expiration date of any Lender's Commitment, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this Section 12.1 or reduce the percentage specified in
the definition of Required Lenders or consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents or release all or substantially all of the Collateral or
release the Guarantee Obligations of CCI under this Agreement or the Guarantee
Obligations of any other guarantors under the Guarantee and Collateral
Agreement, in each case, without the written consent of all the Lenders, (iii)
amend, modify or waive any provision of (x) Section 2.6, 4.4(a) or 2.7 without
the written consent of Term Loan Lenders the Term Loan Percentages
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of which aggregate at least a majority, (iv) amend, modify or waive any
provision of Section 2.1, 2.2, 2.3, 2.4, 2.5, 2.10(e) or Article 3 without the
written consent of the Revolving Credit Lenders the Revolving Credit Commitment
Percentages of which aggregate at least a majority, (v) amend, modify or waive
any provision of Article 10 without the written consent of the Administrative
Agent, (vi) amend, modify or waive the order of application of prepayments
specified in Section 2.10(d) or 4.4(b) without the consent of the Revolving
Credit Lenders and the Term Loan Lenders the Total Credit Percentages of which
aggregate at least a majority, (vii) amend, modify or waive any provision of
Section 2.13 or the Swing Line Note (if any) without the written consent of the
then Swing Line Lender and each other Lender, if any, which holds a
participation in the Swing Line Loan pursuant to Section 2.13(e), (viii) amend,
modify or waive the provisions of Article 3 or any Letter of Credit without the
written consent of the applicable Issuing Lender, or (ix) amend, modify or waive
any provision of any Security Document that provides for the ratable sharing by
the Lenders of the proceeds of any realization on the security for the Loans to
provide for a non-ratable sharing thereof, without the consent of the Revolving
Credit Lenders and the Term Loan Lenders the Total Credit Percentages of which
aggregate at least a majority. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Loans and the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
12.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or two days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower, CCI and the Administrative
Agent, the Issuing Lender and the Swing Line Lender, and as set forth in
Schedule 1.1 in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the Loans or any Notes:
The Borrower: Cooperative Computing, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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The Administrative The Chase Manhattan Bank
Agent, the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Issuing Lender ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or the Swing Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Line Lender: Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: The Chase Manhattan Bank Agent Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.3, 2.5, 2.8, 2.10, 2.11, 2.13, 3.2 or 4.4
shall not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
12.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent and CSI for all their reasonable
out-of-pocket costs and expenses incurred in connection with the syndication of
the Commitments and the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and any Notes and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender, the Administrative Agent and CSI for all of their
reasonable out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, any Notes, the
other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and, at any time after and during the continuance of an
Event of Default, of one counsel to all of the Lenders, (c) to pay, indemnify,
and hold each Lender, the Administrative Agent and CSI harmless from, any and
all recording and filing fees and any and all liabilities
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with respect to, or resulting from any delay in paying, stamp, excise,
documentary, property and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, any Notes, the other Loan Documents and any such
other documents, and (d) to pay, indemnify, and hold each Lender, the
Administrative Agent and CSI and their respective officers, directors,
employees, agents and controlling persons harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, any Notes, the other Loan Documents, the Transaction
Documents, or the use of the proceeds of the Loans in connection with the
Transactions and any such other documents (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
have no obligation hereunder to the Administrative Agent, CSI or any Lender or
their respective officers, directors, employees, agents and controlling persons
with respect to indemnified liabilities arising from the gross negligence or
wilful misconduct of the Administrative Agent, CSI or such Lender, as the case
may be, or, in the case of indemnified liabilities arising under this Agreement,
any Notes and the other Loan Documents, from material breach by the
Administrative Agent or such Lender, as the case may be, or its respective
officers, directors, employees, agents and controlling persons of this
Agreement, any Notes or the other Loan Documents, as the case may be. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial lending or
investing business and in accordance with applicable law, at any time sell to
one or more banks, insurance companies or other financial institutions or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. No Lender shall permit any
Participant to have the right to consent to any amendment or waiver in respect
of this Agreement or any of the other Loan Documents, except that such Lender
may grant such Participant the right to consent to any amendment or waiver in
respect of this Agreement or the other Loan Documents that requires the consent
of
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such Lender pursuant to Section 12.1. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of setoff
in respect of its participating interest in amounts owing under this Agreement
and any Note to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement or any Note, provided
that in purchasing such participating interest, such Participant shall be deemed
to have agreed to share with the Lenders the proceeds thereof as provided in
Section 12.7(a) as fully as if it were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of Sections 4.5,
4.6 and 4.7 with respect to its participation in the Commitments and the Loans
and Letters of Credit outstanding from time to time as if it was a Lender;
provided that in the case of Section 4.6 or 4.7, such Participant shall have
complied with the requirements of such Section and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial lending
business or investing business and in accordance with applicable law, at any
time and from time to time assign to any Lender or any affiliate thereof or,
with the consent of the Administrative Agent (such consent not to be
unreasonably withheld), to an additional bank or financial or lending
institution or other entity (an "Assignee") all or any part of its rights and
obligations under this Agreement and any Notes pursuant to an Assignment and
Acceptance, executed by such Assignee, such assigning Lender (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof, by the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that (x) each such transfer
(if such transfer relates to less than all of such Lenders' rights and
obligations under this Agreement and any Notes) shall be in respect of a portion
of its rights and obligations under this Agreement and any Notes not less than
$5,000,000 (or such other amount as may be agreed by both the Borrower and the
Administrative Agent) if such assignment is to a bank or financial or lending
institution or other entity that is not then a Lender or an affiliate thereof
and (y) the Swing Line Lender may not transfer any portion of the Swing Line
Commitment without the consent of the Borrower (such consent not to be
unreasonably withheld). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments as set forth therein, and (y)
the assigning Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto; provided that such assigning
Lender shall continue to have the benefit of Sections 4.5, 4.6, 4.7 and 12.5(a),
(b) and (c) (to the extent of rights accruing prior to the date of such
assignment only) and 12.5(d).
▇▇▇
▇▇▇
(▇) The Administrative Agent, acting for this purpose as agent for the
Borrower, shall maintain at its address referred to in Section 12.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. No assignment or
transfer of a Note and the obligation(s) evidenced thereby shall be effective
unless it has been recorded in the Register as provided in this Section 12.6(d).
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.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Administrative Agent) together
with payment, by the Assignee, to the Administrative Agent of a registration and
processing fee of $4,000 if the Assignee is not a Lender or affiliate of a
Lender prior to the execution of the Assignment and Acceptance and $1,000
otherwise, the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower. On or prior to such
effective date, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent (in exchange for any Revolving Credit Note, Swing Line
Note or Term Note of the assigning Lender) a new Revolving Credit Note, Swing
Line Note or Term Note, as the case may be, to the order of such Assignee in an
amount equal to the Revolving Credit Commitment, Swing Line Commitment or
portion of the Term Loan, as the case may be, assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Revolving
Credit Commitment, Swing Line Commitment or portion of a Term Loan hereunder, a
new Revolving Credit Note, Swing Line Note or Term Note, as the case may be, to
the order of the assigning Lender in an amount equal to the Revolving Credit
Commitment, Swing Line Commitment or Term Loan, as the case may be, retained by
it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise
be in the form of the Note replaced thereby.
(f) The Borrower authorizes each Lender to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the Borrower and its
Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement, under the condition such Transferee or prospective Transferee agrees
to comply with the provisions of Section 12.15.
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(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
12.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, such benefitted Lender shall purchase for cash from
the other Lenders an interest in such portion of the Obligations owing to each
such other Lender, 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, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under any Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
12.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
12.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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12.10 Integration. This Agreement and the other Loan Documents represent
the agreement of the Credit Parties, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
12.11 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
12.12 Submission To Jurisdiction; Waivers. Each of CCI and the Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the Credit
Parties at their respective addresses set forth in Section 12.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
12.13 Acknowledgements. Each of CCI and the Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and any Notes and the other Loan Documents;
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(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Credit Parties arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Credit Parties, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Credit
Parties and the Lenders.
12.14 WAIVERS OF JURY TRIAL. CCI, THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.15 Confidentiality. Each Lender agrees to keep information obtained by
it pursuant hereto and the other Loan Documents identified as confidential in
writing at the time of delivery confidential in accordance with such Lender's
customary practices and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not disclose
any of such information other than (a) to such Lender's employees,
representatives, directors, attorneys, auditors, agents or affiliates who are
advised of the confidential nature of such information, (b) to the extent such
information presently is or hereafter becomes available to such Lender on a
non-confidential basis from any source or such information that is in the public
domain at the time of disclosure, (c) to the extent disclosure is required by
law (including applicable securities laws), regulation, subpoena or judicial
order or process (provided that notice of such requirement or order shall be
promptly furnished to the Borrower unless such notice is legally prohibited) or
requested or required by bank, securities or investment company regulations or
auditors or any administrative body or commission to whose jurisdiction such
Lender may be subject, (d) to assignees or participants or potential assignees
or participants or to professional advisors or direct or indirect contractual
counterparties in swap agreements provided in each case such Person agrees to be
bound by the provisions of this Section 12.15, (e) to the extent required in
connection with any litigation between any Credit Party and any Lender with
respect to the Loans or this Agreement and the other Loan Documents, (f) to
rating agencies, their employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information and
agree to be bound by provisions of this Section 12.15, (g) to the National
Association of Insurance Commissioners and (h) with the Borrower's prior written
consent. The agreements in this Section shall survive repayment of the Loans and
all other amounts payable hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COOPERATIVE COMPUTING, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
COOPERATIVE COMPUTING HOLDING
COMPANY, INC.,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent,
a Lender and Issuing Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
107
106
BANK UNITED
By /s/ ▇▇▇▇▇ CHIADETTI
-------------------------------
Name: ▇▇▇▇▇ Chiadetti
Title: Director
108
107
BANKBOSTON, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Division Executive
109
108
COMERICA BANK - CALIFORNIA
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
110
109
CREDITANSTALT AG
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
111
110
NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Vice President
112
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
113
112
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ American Capital
Management, Inc., as Collateral Manager
By
-------------------------------
Name:
Title:
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113
IMPERIAL BANK
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
115
114
COMMERCIAL LOAN FUNDING TRUST I
By: ▇▇▇▇▇▇ Commercial Paper Inc., not in
its individual capacity but solely as
administrative agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
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ROYALTON COMPANY
By: Pacific Investment Management
Company, as its investment adviser
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President