EXHIBIT 4.7
REVOLVING CREDIT AGREEMENT
dated as of June 28, 2002
among
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
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SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
[Table of contents to be generated prior to closing.]
Schedules
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Schedule I - Applicable Margin
Schedule 4.14(a) - Subsidiaries
Schedule 4.14(b) - Inactive Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
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Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of June 28, 2002, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee
corporation (the "Borrower"), the several banks and other financial
institutions from time to time party hereto (the "Lenders"), and SUNTRUST
BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$65,000,000 revolving credit facility;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments, are willing
to establish the requested revolving credit facility.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
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DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to
be equally applicable to both the singular and plural forms of the terms
defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning assigned to such term in
the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative
Agent and submitted to the Administrative Agent duly completed by such
Lender.
"Affiliate" shall mean, as to any Person, any other Person that directly,
or indirectly through one or more intermediaries, Controls, is Controlled by,
or is under common Control with, such Person.
"Aggregate Revolving Commitments" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments equal $65,000,000.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate
of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" shall mean the percentage designated on the "Pricing
Grid" attached hereto as Schedule I based on the Borrower's ratio of Total
Lease Adjusted Funded Debt to Consolidated EBITDAR. The Applicable Margin
shall initially be 2.25%; provided, that upon delivery to the Administrative
Agent of Borrower's financial statements for the fiscal quarter ending
June 30, 2002, the Applicable Margin shall be reset to the percentage
designated in Schedule I based on the Borrower's ratio of Total Lease
Adjusted Funded Debt to Consolidated EBITDAR for the preceding four fiscal
quarter periods then ending, measured quarterly, such Applicable Margin being
effective as of the second Business Day following the date that the
Administrative Agent receives the Borrower's applicable financial statements.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to
the Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%).
The Administrative Agent's prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
Each change in the Administrative Agent's prime lending rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Borrower" shall have the meaning in the introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting of Loans of the same
Class and Type, made, converted or continued on the same date, and in case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Nashville, Tennessee are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into,
or an Interest Period for, a Eurodollar Loan or a notice with respect to any
of the foregoing, any day on which dealings in Dollars are carried on in the
London interbank market.
"Capital Expenditures" shall mean for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or
substantially all of the assets of the Borrower to any Person or "group"
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder in effect on the date
hereof), (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group" (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof) of 30% or
more of the outstanding shares of the voting stock of the Borrower; or (c)
occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) nominated by the
current board of directors or (ii) appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending
Office) or the Issuing Bank (or for purposes of Section 2.17(b), by such
Lender's or the Issuing Bank's holding company, if applicable) with any
request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Swingline Loans and when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Commitment or a Swingline
Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or
require).
"Commitment Termination Date" shall mean the earliest of (i) June 28,
2005, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.8, and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"Consolidated EBITDA" shall mean, for the Borrower and its Subsidiaries
for any period, an amount equal to the sum of (a) Consolidated Net Income for
such period plus (b) to the extent deducted in determining Consolidated Net
Income for such period, (i) Consolidated Interest Expense, (ii) income tax
expense, (iii) depreciation and amortization and (iv) all other non-cash
charges, determined on a consolidated basis in accordance with GAAP in each
case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Lease Expense.
"Consolidated Fixed Charges" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period, (b) scheduled principal
payments made on Consolidated Total Debt during such period, (c) Restricted
Payments paid during such period and (d) Consolidated Lease Expense for such
period.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total cash interest expense, including without
limitation the interest component of any payments in respect of Capital
Leases Obligations capitalized or expensed during such period (whether or not
actually paid during such period) plus (ii) the net amount payable (or minus
the net amount receivable) under Hedging Agreements during such period
(whether or not actually paid or received during such period).
"Consolidated Lease Expense" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance
with GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses,
(ii) any gains attributable to write-ups of assets and (iii) any equity
interest of the Borrower or any Subsidiary of the Borrower in the unremitted
earnings of any Person that is not a Subsidiary and (iv) any income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary or is merged
into or consolidated with the Borrower or any Subsidiary on the date that
such Person's assets are acquired by the Borrower or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus the sum of
(i) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date
prepared in accordance with GAAP and (ii) the amount of any write-up in the
book value of any assets resulting from a revaluation thereof or any write-up
in excess of the cost of such assets acquired reflected on the consolidated
balance sheet of the Borrower as of such date prepared in accordance with
GAAP.
"Consolidated Tangible Net Worth" shall mean, as of any date, (i) the
total assets of the Borrower and its Subsidiaries that would be reflected on
the Borrower's consolidated balance sheet as of such date prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus
the sum of (i) the total liabilities of the Borrower and its Subsidiaries
that would be reflected on the Borrower's consolidated balance sheet as of
such date prepared in accordance with GAAP, (ii) the amount of any write-up
in the book value of any assets resulting from a revaluation thereof or any
write-up in excess of the cost of such assets acquired reflected on the
consolidated balance sheet of the Borrower as of such date prepared in
accordance with GAAP and (iii) the net book amount of all assets of the
Borrower and its Subsidiaries that would be classified as intangible assets
on a consolidated balance sheet of the Borrower as of such date prepared in
accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date of determination,
all Indebtedness of the Borrower and its Subsidiaries that would be reflected
on a consolidated balance sheet of the Borrower prepared in accordance with
GAAP as of such date.
"Control" shall mean the power, directly or indirectly, either to (i)
vote 15% or more of securities having ordinary voting power for the election
of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling", "Controlled by", and "under common
Control with" have meanings correlative thereto.
"▇.▇. ▇▇▇▇▇▇ Asset Sale Agreement" shall mean that certain Amended and
Restated Asset Purchase Agreement by and between Borrower and the other parties
listed therein dated October 31, 2001.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section 2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened
Release of any Hazardous Material.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines,
natural resource damages, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) any actual
or alleged violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d)
the Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability under Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal
Reserve System (or any Governmental Authority succeeding to any of its
principal functions) with respect to eurocurrency funding (currently referred
to as "eurocurrency liabilities" under Regulation D). Eurodollar Loans shall
be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender under
Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its gross net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, and
(b) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is
located.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, for any period of four
consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDAR for such period less the actual amount paid by the Borrower and its
Subsidiaries in cash during such period on account of Capital Expenditures to
(b) Consolidated Fixed Charges for such period. For purposes of calculating
Borrower's Fixed Charge Coverage Ratio in accordance with the terms hereof,
Capital Expenditures shall not include the amount used for the repurchase of
specific real estate assets as required by the ▇.▇. ▇▇▇▇▇▇ Asset Sale
Agreement.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued in support of such Indebtedness or obligation; provided, that
the term "Guarantee" shall not include endorsements for collection or
deposits in the ordinary course of business. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which Guarantee is made or, if not so
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith. The term "Guarantee" used as a verb
has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and
other similar agreements or arrangements designed to protect against
fluctuations in interest rates, currency values or commodity values.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business; provided, that for purposes of Section 8.1(f),
trade payables overdue by more than 120 days shall be included in this
definition except to the extent that any of such trade payables are being
disputed in good faith and by appropriate measures), (iv) all obligations of
such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent or otherwise, of
such Person in respect of letters of credit, acceptances or similar
extensions of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person,
(ix) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any common stock of such
Person, (x) Off-Balance Sheet Liabilities. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer, except to the extent
that the terms of such Indebtedness provide that such Person is not liable
therefor, and (xi) obligations under any Hedging Agreement or foreign
exchange agreement.
"Inactive Subsidiaries" shall mean those Subsidiaries of Borrower listed
on Schedule 4.14(b) attached hereto.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity and Contribution Agreement" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Borrower's Subsidiaries (other than Inactive
Subsidiares) and the Administrative Agent.
"Interest Period" shall mean (i) with respect to any Eurodollar
Borrowing, a period of one, two, three or six months and (ii) with respect to
a Swingline Loan, a period of such duration not to exceed 5 days, as the
Borrower may request and the Swingline Lender may agree in accordance with
Section 2.5; provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing
which begins on the last Business Day of a calendar month or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last Business
Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit in an aggregate face amount not to exceed $5,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender shall be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"Letter of Credit" shall mean any stand-by letter of credit issued
pursuant to Section 2.22 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment. For purposes of this Agreement, the defined
term "Letter of Credit" does not include commercial letters of credit.
"LIBOR" shall mean, for any Interest Period, the British Bankers'
Association Interest Settlement Rate for deposits in Dollars for a period
comparable to the applicable Interest Period appearing on Telerate Screen
Page 3750, as of 11:00 a.m. London time, on the day that is two Business Days
prior to the applicable Interest Period.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease
having the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary Guarantee
Agreement, the Indemnity and Contribution Agreement, and any and all other
instruments, agreements, documents and writings executed in connection with
any of the foregoing.
"Loan Parties" shall mean the Borrower and Borrower's Subsidiaries, other
than Inactive Subsidiaries.
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences
whether or not related, a material adverse change in, or a material adverse
effect on, (i) the business, results of operations, financial condition,
assets, liabilities or prospects of the Borrower and of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to
perform any of their respective obligations under the Loan Documents, (iii)
the rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $1,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect to any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Borrower or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b)
hereof.
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.5.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including
any 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), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative Agent and
any Lender (including the Swingline Lender) incurred pursuant to this
Agreement or any other Loan Document), whether direct or indirect, absolute
or contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any
so-called "synthetic" lease transaction or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
balance sheet of such Person.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or
any other Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(c).
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written notice
to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Permitted Acquisition" shall mean acquisitions by Borrower satisfying
each of the following conditions: (i) total annual consideration for
acquisitions shall not exceed 15% of Consolidated Tangible Net Worth; (ii) at
the time of each acquisition, the business of the acquired entity shall be
substantially similar to those engaged in by the Borrower and its
Subsidiaries as of the Closing Date; and (iii) at the time of and after
giving effect to such acquisition, no Event of Default has occurred and is
continuing.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes not yet due (or in the case of real
property taxes, not yet delinquent)or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event
of Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole; and
(vii) liens securing existing industrial revenue bonds relating to the
Borrower's principal facility in Nashville, Tennessee.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i) above and
entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pro Rata Share" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be such Lender's Revolving
Commitment and the denominator of which shall be all Lenders' Revolving
Commitments; or if the Revolving Commitments have been terminated or expired
or if the Loans have been declared to be due and payable, a percentage, the
numerator of which shall be such Lender's Revolving Credit Exposure and the
denominator of which shall be the aggregate Revolving Credit Exposure of all
Lenders.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture of any Hazardous Materials.
"Required Lenders" shall mean, at any time, Lenders holding more than
66 2/3% of the aggregate outstanding Revolving Credit Exposures at such time.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer,
the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer
of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate
principal amount not exceeding the amount set forth with respect to such
Lender on the signature pages to this Agreement, or in the case of a Person
becoming a Lender after the Closing Date, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and Acceptance Agreement
executed by such Person as an assignee, as the same may be changed pursuant
to terms hereof.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, such Lender's LC Exposure and such Lender's Swingline
Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"Senior Unsecured Notes" shall mean, collectively, (a) the 6.93% Series B
Senior Note due December 31, 2005 in the original principal amount of
$15,000,000 made payable by the Borrower to Metropolitan Life Insurance Company
and (b) the 8.31% Senior Note due June 23, 2004 in the original principal
amount of $5,000,000 made payable by the Borrower to the Metropolitan Life
Insurance Company.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited
liability company, association or other entity (i) of which securities or
other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power, or in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
Controlled or held by the parent, or (ii) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless otherwise indicated,
all references to "Subsidiary" hereunder shall mean a Subsidiary of the
Borrower; provided, that such reference shall not include the Inactive
Subsidiaries with respect to Sections 3.1(b), 4.1(i) and (ii), 4.2 and
4.3 hereof.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D, made by Borrower's
Subsidiaries (other than Inactive Subsidiaries) in favor of the Administrative
Agent for the benefit of the Lenders.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $10,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share
of all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower payable
to the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially in the form of Exhibit B.
"Swingline Rate" shall mean, for any Interest Period, the rate as
offered by the Administrative Agent and accepted by Borrower. The Borrower is
under no obligation to accept this rate and the Administrative Agent is under
no obligation to provide it.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Total Lease Adjusted Funded Debt" shall mean, at any time, all
Indebtedness (other than items (vi) and (vii) under such definition) of
Borrower and its Subsidiaries, including without limitation all Loans and
Letter of Credit Obligations evidenced by this Agreement and the other Loan
Documents and all lease obligations, including without limitation all Capital
Lease Obligations and operating lease obligations, as determined in
accordance with GAAP, discounted at a rate of 10% per annum for the life of
the applicable lease.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 Classifications of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan" or "Swingline Loan") or by Type (e.g. a "Eurodollar Loan"
or "Base Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan").
Borrowings also may be classified and referred to by Class (e.g. "Revolving
Borrowing") or by Type (e.g. "Eurodollar Borrowing") or by Class and Type
(e.g. "Revolving Eurodollar Borrowing").
SECTION 1.3 Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time.
SECTION 1.4 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 General Description of Facilities. Subject to and upon the
terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the
Lenders severally agree (to the extent of each Lender's Pro Rata Share up to
such Lender's Revolving Commitment) to make Revolving Loans to the Borrower
in accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters
of Credit in accordance with Section 2.22, (iii) the Swingline Lender agrees
to make Swingline Loans in accordance with Section 2.4, and (iv) each Lender
agrees to purchase a participation interest in the Letters of Credit and the
Swingline Loans pursuant to the terms and conditions hereof; provided, that
in no event shall the aggregate principal amount of all outstanding Revolving
Loans, Swingline Loans and outstanding LC Obligations exceed at any time the
Aggregate Revolving Commitments from time to time in effect.
SECTION 2.2 Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving
Commitment or (b) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitments. During the
Availability Period, the Borrower shall be entitled to borrow, prepay and
reborrow Revolving Loans in accordance with the terms and conditions of this
Agreement; provided, that the Borrower may not borrow or reborrow should
there exist a Default or Event of Default.
SECTION 2.3 Procedure for Revolving Borrowings. The Borrower shall give
the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form
of Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x) prior
to 11:00 a.m. one (1) Business Day prior to the requested date of each Base
Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to
the requested date of each Eurodollar Borrowing. Each Notice of Revolving
Borrowing shall be irrevocable and shall specify: (i) the aggregate principal
amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such
Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the
initial Interest Period applicable thereto (subject to the provisions of the
definition of Interest Period). Each Revolving Borrowing shall consist
entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request.
The aggregate principal amount of each Eurodollar Borrowing shall be not less
than $3,000,000 or a larger multiple of $500,000, and the aggregate principal
amount of each Base Rate Borrowing shall not be less than $1,000,000 or a
larger multiple of $100,000; provided, that Base Rate Loans made pursuant to
Section 2.5 or Section 2.22(d) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed six. Promptly following the receipt of a
Notice of Revolving Borrowing in accordance herewith, the Administrative
Agent shall advise each Lender of the details thereof and the amount of such
Lender's Revolving Loan to be made as part of the requested Revolving
Borrowing.
SECTION 2.4 Swingline Commitment. Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference between the
Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures
of all Lenders; provided, that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. The
Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this Agreement.
SECTION 2.5 Procedure for Swingline Borrowing; Etc:
(a) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each
Swingline Borrowing ("Notice of Swingline Borrowing") prior to 12:00 Noon
eastern standard time on the requested date of each Swingline Borrowing.
Each Notice of Swingline Borrowing shall be irrevocable and shall specify:
(i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account of
the Borrower to which the proceeds of such Swingline Loan should be
credited. The Administrative Agent will promptly advise the Swingline
Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall
accrue interest at the Swingline Rate. The aggregate principal amount
of each Swingline Loan shall be not less than $100,000 or a larger
multiple of $50,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. The Swingline Lender will make the
proceeds of each Swingline Loan available to the Borrower in Dollars in
immediately available funds at the account specified by the Borrower in
the applicable Notice of Swingline Borrowing not later than 2:00 p.m.
eastern standard time on the requested date of such Swingline Loan. The
Administrative Agent will notify the Lenders on a quarterly basis if any
Swingline Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in
its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on its
behalf), give a Notice of Revolving Borrowing to the Administrative
Agent requesting the Lenders (including the Swingline Lender) to make
Base Rate Loans in an amount equal to the unpaid principal amount of
any Swingline Loan. Each Lender will make the proceeds of its Base Rate
Loan included in such Borrowing available to the Administrative Agent
for the account of the Swingline Lender in accordance with Section 2.3,
which will be used solely for the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than
the Swingline Lender) shall purchase an undivided participating interest
in such Swingline Loan in an amount equal to its Pro Rata Share thereof
on the date that such Base Rate Borrowing should have occurred. On the
date of such required purchase, each Lender shall promptly transfer,
in immediately available funds, the amount of its participating interest
to the Administrative Agent for the account of the Swingline Lender. If
such Swingline Loan bears interest at a rate other than the Base Rate,
such Swingline Loan shall automatically become a Base Rate Loan on the
effective date of any such participation and interest shall become
payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant
to Section 2.5(b) or to purchase the participating interests pursuant
to Section 2.5(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such
Lender or any other Person may have or claim against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever,
(ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence
(or alleged existence) of any event or condition which has had or could
reasonably be expected to have a Material Adverse Effect, (iv) any
breach of this Agreement or any other Loan Document by the Borrower,
the Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. If such amount is not in fact made available to the
Swingline Lender by any Lender, the Swingline Lender shall be entitled
to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof
at the Federal Funds Rate. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to
have outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In addition, such
Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Loans and any other amounts due to it
hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section, until such amount has been purchased
in full.
SECTION 2.6 Funding of Borrowings
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. to the Administrative Agent at the
Payment Office; provided, that the Swingline Loans will be made as set
forth in Section 2.5. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it
receives, in like funds by the close of business on such proposed date,
to an account maintained by the Borrower with the Administrative Agent
or at the Borrower's option, by effecting a wire transfer of such
amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified by
any Lender prior to 5 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is participating that such Lender will
not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such
date, and the Administrative Agent, in reliance on such assumption, may
make available to the Borrower on such date a corresponding amount. If
such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest at the Federal
Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the
Administrative Agent together with interest at the rate specified for
such Borrowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Pro Rata Share of any
Borrowing hereunder or to prejudice any rights which the Borrower may
have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be
responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans
provided to be made by it hereunder, regardless of the failure of any
other Lender to make its Loans hereunder.
SECTION 2.7 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such
Notice of Borrowing. Thereafter, the Borrower may elect to convert such
Borrowing into a different Type or to continue such Borrowing, and in
the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "Notice of
Conversion/Continuation") that is to be converted or continued, as the
case may be, (x) prior to 10:00 a.m. one (1) Business Day prior to the
requested date of a conversion into a Base Rate Borrowing and (y) prior
to 11:00 a.m. three (3) Business Days prior to a continuation of or
conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the
Borrowing to which such Notice of Continuation/Conversion applies and
if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made
pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting
Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall be
a period contemplated by the definition of "Interest Period". If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing
but does not specify an Interest Period, the Borrower shall be deemed
to have selected an Interest Period of one month. The principal amount
of any resulting Borrowing shall satisfy the minimum borrowing amount
for Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing is
repaid as provided herein, the Borrower shall be deemed to have elected
to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be
converted into, or continued as, a Eurodollar Borrowing if a Default or
an Event of Default exists, unless the Administrative Agent and each of
the Lenders shall have otherwise consented in writing. No conversion of
any Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
SECTION 2.8 Optional Reduction and Termination of Commitments;
Mandatory Prepayments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided, that (i) any
partial reduction shall apply to reduce proportionately and permanently
the Revolving Commitment of each Lender, (ii) any partial reduction
shall be in an amount of at least $5,000,000 and any larger multiples
of $1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Aggregate Revolving Commitments to an amount less than
the outstanding Revolving Credit Exposures of all Lenders. Any such
reduction in the Aggregate Revolving Commitments shall result in a
proportionate reduction (rounded to the next lowest multiple of
$100,000) in the Swingline Commitment and the LC Commitment.
(c) Borrower shall be required to make mandatory principal
prepayments from (i) 100% of the net proceeds received by the Borrower
and any Subsidiary from any sale or other disposition by the Borrower
and any Subsidiary of any assets, with the exception of the sale of
inventory in the normal course of business and the sale of other
specific real estate assets pertaining to the ▇.▇. ▇▇▇▇▇▇ Asset Sale
Agreement and (ii) 100% of net proceeds of any equity offering or debt
issuance. All such mandatory prepayments shall be ratably applied in
accordance with Section 2.20(b) hereof. The Aggregate Revolving
Commitments shall be ratably reduced by any amount prepaid in
accordance with this Section 2.8(c).
SECTION 2.9 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest
thereon) on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued interest thereon) on the earlier
of (i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Commitment Termination Date.
SECTION 2.10 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender
from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records
in which shall be recorded (i) the Revolving Commitment of each Lender,
(ii) the amount of each Loan made hereunder by each Lender, the Class
and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.9, (iv) the
date of each conversion of all or a portion thereof to another Type
pursuant to Section 2.9, (v) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower
to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each Lender's
Pro Rata Share thereof. The entries made in such records shall be prima
facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, that the failure or delay of any
Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance
with the terms of this Agreement.
(b) At the request of any Lender at any time, the Borrower
agrees that it will execute and deliver to such Lender a Revolving
Credit Note and, in the case of the Swingline Lender only, a Swingline
Note, payable to the order of such Lender.
SECTION 2.11 Optional Prepayments. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or
in part, without premium or penalty, by giving irrevocable written notice
(or telephonic notice promptly confirmed in writing) to the Administrative
Agent no later than (i) in the case of prepayment of any Eurodollar
Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any
such prepayment, (ii) in the case of any prepayment of any Base Rate
Borrowing, not less than one Business Day prior to the date of such
prepayment, and (iii) in the case of Swingline Borrowings, prior to
11:00 a. m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify
each affected Lender of the contents thereof and of such Lender's Pro Rata
Share of any such prepayment. If such notice is given, the aggregate amount
specified in such notice shall be due and payable on the date designated
in such notice, together with accrued interest to such date on the amount
so prepaid in accordance with Section 2.12(e); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all amount
required pursuant to Section 2.18. Each partial prepayment of any Loan
(other than a Swingline Loan) shall be in minimum amounts of $1,000,000 and
in integral multiples of $500,000. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing.
SECTION 2.12 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan
at the Adjusted LIBO Rate for the applicable Interest Period in effect
for such Loan, plus, in each case, the Applicable Margin in effect from
time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
the Swingline Rate.
(c) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay interest
("Default Interest") with respect to all Eurodollar Loans at the rate
otherwise applicable for the then-current Interest Period plus an
additional 2% per annum until the last day of such Interest Period, and
thereafter, and with respect to all Base Rate Loans (including all
Swingline Loans) and all other Obligations hereunder (other than
Loans), at an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding the
date of any repayment thereof. Interest on all outstanding Base Rate
Loans shall be payable quarterly in arrears on the last day of each
March, June, September and December and on the Commitment Termination
Date. Interest on all outstanding Eurodollar Loans shall be payable on
the last day of each Interest Period applicable thereto, and, in the
case of any Eurodollar Loans having an Interest Period in excess of
three months or 90 days, respectively, on each day which occurs every
three months or 90 days, as the case may be, after the initial date of
such Interest Period, and on the Commitment Termination Date. Interest
on each Swingline Loan shall be payable on the maturity date of such
Loan, which shall be the last day of the Interest Period applicable
thereto, and on the Commitment Termination Date. Interest on any Loan
which is converted into a Loan of another Type or which is repaid or
prepaid shall be payable on the date of such conversion or on the date
of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone,
promptly confirmed in writing). Any such determination shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.13 Fees.
(a) The Borrower shall pay to the Administrative Agent for its
own account fees in the amounts and at the times previously agreed upon
by the Borrower and the Administrative Agent pursuant to that certain
fee letter by and between Borrower and Administrative Agent dated
June 14, 2002.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee,
which shall accrue initially at .00375% and upon delivery of Borrower's
consolidated financial statements for the fiscal quarter ending
September 30, 2002 and thereafter at the Applicable Margin (determined
daily in accordance with Schedule I) on the daily amount of the unused
Revolving Commitment of such Lender during the Availability Period.
Accrued commitment fees shall be payable in arrears on the last day of
each March, June, September and December of each year and on the
Commitment Termination Date, commencing on the first such date after
the Closing Date.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent, for the account of each Lender, a letter of
credit fee with respect to its participation in each Letter of Credit,
which shall accrue at the Applicable Margin for Eurodollar Loans then
in effect on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) attributable to such Letter of Credit during the period
from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter expires or is drawn in full
(including without limitation any LC Exposure that remains outstanding
after the Commitment Termination Date) and (ii) to the Issuing Bank for
its own account a fronting fee, which shall accrue at the rate of
0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to Unreimbursed LC
Disbursements) during the Availability Period (or until the date that
such Letter of Credit is irrevocably canceled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Accrued Letter of Credit fees shall be payable
in arrears on the last day of each March, June, September and December
of each year and on the Commitment Termination Date, commencing on the
first such date after the Closing Date.
SECTION 2.14 Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
SECTION 2.15 Inability to Determine Interest Rates. If prior to
the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for
such Interest Period, or
(ii) the Administrative Agent shall have received notice
from the Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining
their (or its, as the case may be) Eurodollar Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations
of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day
of the then current Interest Period applicable thereto unless the Borrower
prepays such Loans in accordance with this Agreement. Unless the Borrower
notifies the Administrative Agent at least one Business Day before the date
of any Eurodollar Revolving Borrowing for which a Notice of Revolving
Borrowing has previously been given that it elects not to borrow on such
date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.16 Illegality. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any
Eurodollar Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and
the other Lenders, whereupon until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make Eurodollar Revolving
Loans, or to continue or convert outstanding Loans as or into Eurodollar
Loans, shall be suspended. In the case of the making of a Eurodollar
Revolving Borrowing, such Lender's Revolving Loan shall be made as a Base
Rate Loan as part of the same Revolving Borrowing for the same Interest
Period and if the affected Eurodollar Loan is then outstanding, such Loan
shall be converted to a Base Rate Loan either (i) on the last day of the then
current Interest Period applicable to such Eurodollar Loan if such Lender may
lawfully continue to maintain such Loan to such date or (ii) immediately if
such Lender shall determine that it may not lawfully continue to maintain
such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative
Agent, designate a different Applicable Lending Office if such designation
would avoid the need for giving such notice and if such designation would not
otherwise be disadvantageous to such Lender in the good faith exercise of its
discretion.
SECTION 2.17 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise
included in the determination of the Adjusted LIBO Rate hereunder
against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any
Letter of Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan
or to increase the cost to such Lender or the Issuing Bank of
participating in or issuing any Letter of Credit or to reduce the
amount received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount), then
the Borrower shall promptly pay, upon written notice from and demand by
such Lender on the Borrower (with a copy of such notice and demand to
the Administrative Agent), to the Administrative Agent for the account
of such Lender, within five Business Days after the date of such notice
and demand, additional amount or amounts sufficient to compensate such
Lender or the Issuing Bank, as the case may be, for such additional
costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding
capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital (or on the
capital of such Lender's or the Issuing Bank's parent corporation) as a
consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation could
have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies or the policies of such
Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) then, from time to time, within five (5) Business
Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error. The Borrower
shall pay any such Lender or the Issuing Bank, as the case may be, such
amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation.
SECTION 2.18 Funding Indemnity. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than
on the last day of the Interest Period applicable thereto, or (c) the failure
by the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on
the date specified in any applicable notice (regardless of whether such notice
is withdrawn or revoked), then, in any such event, the Borrower shall
compensate each Lender, within five (5) Business Days after written demand
from such Lender, for any loss, cost or expense attributable to such event. In
the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to
include an amount determined by such Lender to be the excess, if any, of
(A) the amount of interest that would have accrued on the principal amount of
such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate
applicable to such Eurodollar Loan for the period from the date of such event
to the last day of the then current Interest Period therefor (or in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Eurodollar Loan) over (B) the amount of
interest that would accrue on the principal amount of such Eurodollar Loan
for the same period if the Adjusted LIBO Rate were set on the date such
Eurodollar Loan was prepaid or converted or the date on which the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A certificate as
to any additional amount payable under this Section 2.20 submitted to the
Borrower by any Lender shall be conclusive, absent manifest error.
SECTION 2.19 Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section)
the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five (5) Business Days after
written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Each Lender organized under the laws of a jurisdiction other than the
United States or any state thereof shall deliver to the Borrower, with a
copy to the Administrative Agent, concurrently with the delivery of the
relevant Assignment and Acceptance, as applicable, (i) two United States
Internal Revenue Service Forms W-8 BEN or Forms W-8 ECI, as applicable
(or successor forms) properly completed and certifying in each case that
such Lender is entitled to a complete exemption from withholding or
deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form, as the case may be, to establish an exemption from United States
backup withholding taxes. Each such Lender further agrees to deliver to
the Borrower, with a copy to the Administrative Agent, a Form W-8 ECI or
W-8 BEN and Form W-8 or W-9, or successor applicable forms or manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Borrower,
certifying in the case of a Form W-8 ECI or W-8 BEN that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes (unless in any such
case an event, including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders such forms inapplicable or the
exemption to which such forms relate unavailable and such Lender notifies
the Borroweer and the Administrative Agent that it is not entitled to
receive payments without deduction or withholding of United States federal
income taxes) and, in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
SECTION 2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.17, 2.18 or
2.19, or otherwise) prior to 12:00 noon, on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the
Payment Office, except payments to be made directly to the Issuing Bank
or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.17, 2.18, 2.19 and 10.3 shall be
made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is
not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of
its Revolving Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in
the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such
participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Loans or participations in
LC Disbursements or Swingline Loans to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case
may be, the amount or amounts due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing
Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.5(b), 2.22(c) or (d), 2.20(d) or
10.3(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until
all such unsatisfied obligations are fully paid.
SECTION 2.21 Mitigation of Obligations; Replacement of Lenders. If
any Lender requests compensation under Section 2.17, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.19, then such
Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in the sole good faith judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable under Section 2.17 or
Section 2.19, as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all costs
and expenses incurred by any Lender in connection with such designation or
assignment.
SECTION 2.22 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section
2.22(d), agrees to issue, at the request of the Borrower, Letters of
Credit for the account of the Borrower on the terms and conditions
hereinafter set forth; provided, that (i) each Letter of Credit shall
expire on the earlier of (A) the date one year after the date of
issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B)
the date that is five (5) Business Days prior to the Commitment
Termination Date; (ii) each Letter of Credit shall be in a stated
amount of at least $500,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the
aggregate LC Exposure would exceed the LC Commitment or (B) the
aggregate LC Exposure, plus the aggregate outstanding Revolving Loans
of all Lenders would exceed the Aggregate Revolving Commitments. Upon
the issuance of each Letter of Credit each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
Issuing Bank without recourse a participation in such Letter of Credit
equal to such Lender's Pro Rata Share of the aggregate amount available
to be drawn under such Letter of Credit. Each issuance of a Letter of
Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall give the Issuing Bank and the Administrative Agent
irrevocable written notice at least three (3) Business Days prior to
the requested date of such issuance specifying the date (which shall be
a Business Day) such Letter of Credit is to be issued (or amended,
extended or renewed, as the case may be), the expiration date of such
Letter of Credit, the amount of such Letter of Credit , the name and
address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.
In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the
amount of such Letter of Credit) will be subject to the further
conditions that such Letter of Credit shall be in such form and contain
such terms as the Issuing Bank shall approve and that the Borrower
shall have executed and delivered any additional applications,
agreements and instruments relating to such Letter of Credit as the
Issuing Bank shall reasonably require; provided, that in the event of
any conflict between such applications, agreements or instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has
received such notice and if not, the Issuing Bank will provide the
Administrative Agent with a copy thereof. Unless the Issuing Bank has
received notice from the Administrative Agent on or before the Business
Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the Issuing Bank not to issue
the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.22(a) or
that one or more conditions specified in Article III are not then
satisfied, then, subject to the terms and conditions hereof, the
Issuing Bank shall, on the requested date, issue such Letter of Credit
in accordance with the Issuing Bank's usual and customary business
practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and
whether the Issuing Bank has made or will make a LC Disbursement
thereunder; provided, that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to such LC Disbursement.
The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing
Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the
Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the
Business Day immediately prior to the date on which such drawing is
honored that the Borrower intends to reimburse the Issuing Bank for the
amount of such drawing in funds other than from the proceeds of
Revolving Loans, the Borrower shall be deemed to have timely given a
Notice of Revolving Borrowing to the Administrative Agent requesting
the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank;
provided, that for purposes solely of such Borrowing, the conditions
precedents set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Lenders of such Borrowing in
accordance with Section 2.3, and each Lender shall make the proceeds of
its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Issuing Bank in accordance
with Section 2.8. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is
not, made in accordance with the foregoing provisions, then each Lender
(other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a) in
an amount equal to its Pro Rata Share of such LC Disbursement on and as
of the date which such Base Rate Borrowing should have occurred. Each
Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination of the
Aggregate Revolving Commitments, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the
Issuing Bank. Whenever, at any time after the Issuing Bank has received
from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its
behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such
Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to
a trustee, receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the Administrative
Agent or the Issuing Bank any portion thereof previously distributed by
the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.22 on
the due date therefor, such Lender shall pay interest to the Issuing
Bank (through the Administrative Agent) on such amount from such due
date to the date such payment is made at a rate per annum equal to the
Federal Funds Rate; provided, that if such Lender shall fail to make
such payment to the Issuing Bank within three (3) Business Days of such
due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, with demand or notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (g) or (h) of Section 8.1. Such deposit
shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest and profits,
if any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it had not been reimbursed
and to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated, with the
consent of the Required Lenders, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent
not so applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or
waived.
(h) Promptly following the end of each fiscal quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each
Lender and the Borrower a report describing the aggregate Letters of
Credit outstanding at the end of such fiscal quarter. Upon the request
of any Lender from time to time, the Issuing Bank shall deliver to such
Lender any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter
of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or entities
for whom any such beneficiary or transferee may be acting), any
Lender (including the Issuing Bank) or any other Person, whether
in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in
any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing
Bank that does not comply with the terms of such Letter of
Credit;
(v) Any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred
to above), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree, that
in the absence of gross negligence or willful misconduct on the part of
the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect
to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may,
in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No.500, as the same may
be amended from time to time, and, to the extent not inconsistent
therewith, the governing law of this Agreement set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become
effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with
the Administrative Agent or SunTrust Capital Markets, Inc., as Lead
Arranger and Book Manager.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or written evidence satisfactory to
the Administrative Agent (which may include telecopy transmission
of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement;
(ii) if requested by any Lender, duly executed Notes
payable to such Lender;
(iii) a duly executed Subsidiary Guarantee Agreement and
Indemnity and Contribution Agreement;
(iv) a certificate of the Secretary or Assistant Secretary
of each Loan Party, attaching and certifying copies of its bylaws
and of the resolutions of its boards of directors, authorizing
the execution, delivery and performance of the Loan Documents to
which it is a party and certifying the name, title and true
signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(v) certified copies of the articles of incorporation or
other charter documents of each Loan Party, together with
certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation
of such Loan Party and each other jurisdiction where such Loan
Party is required to be qualified to do business as a foreign
corporation;
(vi) a favorable written opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇,
PLC, counsel to the Loan Parties, addressed to the Administrative
Agent and each of the Lenders, and covering such matters relating
to the Loan Parties, the Loan Documents and the transactions
contemplated therein as the Administrative Agent or the Required
Lenders shall reasonably request;
(vii) certificates of insurance issued on behalf of
insurors of Borrower and its Subsidiaries, describing in
reasonable detail the types and amounts of insurance (property
and liability) maintained by the Borrower and its Subsidiaries,
naming Administrative Agent as additional insured and loss payee,
as appropriate;
(viii) duly executed payoff letters, in form and
substance satisfactory to Administrative Agent, executed by each
lender holding Indebtedness to be refinanced at Closing;
(ix) duly executed Notices of Borrowing, if applicable; and
(x) a duly executed funds disbursement agreement.
SECTION 3.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default or Event of Default shall
exist;
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, extension or renewal of such Letter of Credit, in
each case before and after giving effect thereto;
(c) since the date of the most recent financial statements of
the Borrower described in Section 5.1(a), there shall have been no
change which has had or could reasonably be expected to have a Material
Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request,
all in form and substance reasonably satisfactory to the Administrative
Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
SECTION 3.3 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in
this Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for
the Notes, in sufficient counterparts or copies for each of the Lenders and
shall be in form and substance satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1 Existence; Power. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation
under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to
be so qualified could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.2 Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it
is a party are within such Loan Party's organizational powers and have been
duly authorized by all necessary organizational, and if required, stockholder
action. This Agreement has been duly executed and delivered by the Borrower,
and constitutes, and each other Loan Document to which any Loan Party is a
party, when executed and delivered by such Loan Party, will constitute, valid
and binding obligations of the Borrower or such Loan Party (as the case may
be), enforceable against it in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
SECTION 4.3 Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require
any consent or approval of, registration or filing with, or any action by,
any Governmental Authority, except those as have been obtained or made and
are in full force and effect or where the failure to do so, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (b) will not violate any applicable material law or regulation or the
charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, material agreement or
other material instrument binding on the Borrower or any of its Subsidiaries
or any of its assets or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
SECTION 4.4 Financial Statements. The Borrower has furnished to each
Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of the fiscal years ended March 31, 2002, March 31, 2001 and
March 31, 2000, and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal year then ended audited
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (ii) the company prepared consolidated balance sheet
of the Borrower and its Subsidiaries as at the fiscal period ending May 31,
2002, and the related company prepared consolidated statements of income and
cash flows for such period and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present the
consolidated financial condition of the Borrower and its Subsidiaries as of
such dates and the consolidated results of operations for such periods in
conformity with GAAP consistently applied, subject to year end audit
adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii). Since March 31, 2002, there have been no changes
with respect to the Borrower and its Subsidiaries which have had or could
reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect.
SECTION 4.5 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower
or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a Material
Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Loan
Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability, in each case, which could reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.6 Compliance with Laws and Agreements. The Borrower and each
Subsidiary (a) is in compliance in all material respects with all applicable
laws, rules, regulations and orders of any Governmental Authority, and (b) is
in compliance with all indentures, agreements or other instruments binding
upon it or its properties, except where non-compliance, either singly or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.7 Investment Company Act, Etc. Neither the Borrower nor any
of its Subsidiaries is (a) an "investment company", as defined in, or subject
to regulation under, the Investment Company Act of 1940, as amended, (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) otherwise subject to
any other regulatory scheme limiting its ability to incur debt.
SECTION 4.8 Taxes. The Borrower and its Subsidiaries have timely filed
or caused to be filed all Federal income tax returns and all other material
tax returns that are required to be filed by them, and have paid all taxes
shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may
be, has set aside on its books adequate reserves.
SECTION 4.9 Margin Regulations. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the applicable Margin Regulations.
SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts,
exceed by more than $0 the fair market value of the assets of such Plan, and
the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $0 the fair market
value of the assets of all such underfunded Plans.
SECTION 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all of its real and personal
property material to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks,
service marks, tradenames, copyrights and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, would not have a Material Adverse Effect.
SECTION 4.12 Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports
(including without limitation all reports that the Borrower is required to
file with the Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender in connection with the negotiation
or syndication of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by any other information
so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading.
SECTION 4.13 Labor Relations. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of
its Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any
of its Subsidiaries, or to the Borrower's knowledge, threatened against any
of them before any Governmental Authority. All payments due from the Borrower
or any of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
the Borrower or any such Subsidiary, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
SECTION 4.14 Subsidiaries. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of incorporation
of, and the type of, each Subsidiary, in each case as of the Closing Date,
other than the Inactive Subsidiaries which are set forth in Schedule 4.14(b).
None of the Inactive Subsidiaries own any assets or have any net worth, other
than de minimus amounts which do not, in the aggreagate for all Inactive
Subsidiaries, exceed $5,000.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee
or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 5.1 Financial Statements and Other Information. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, a copy of the annual audited
report for such fiscal year for the Borrower and its Subsidiaries,
containing a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows
(together with all footnotes thereto) of the Borrower and its
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and reported on by independent public accountants of
nationally recognized standing as approved by Administrative Agent
(without a "going concern" or like qualification, exception or
explanation and without any qualification or exception as to scope of
such audit) to the effect that such financial statements present fairly
in all material respects the financial condition and the results of
operations of the Borrower and its Subsidiaries for such fiscal year on
a consolidated basis in accordance with GAAP and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(b) as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal quarter and
the related unaudited consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for such fiscal quarter and the
then elapsed portion of such fiscal year, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all certified
by the chief financial officer or treasurer of the Borrower as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer, (i) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrower has taken or proposes to take
with respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance, or lack thereof, with Article VI
and (iii) stating whether any change in GAAP or the application thereof
has occurred since the date of the Borrower's audited financial statements
referred to in Section 4.4 and, if any change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) promptly following any request therefor, such other
information regarding the results of operations, business affairs and
financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice
of any claim with respect to any Environmental Liability, or (iv)
becomes aware of any basis for any Environmental Liability and in each
of the preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $500,000; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed
to be taken with respect thereto.
SECTION 5.3 Existence; Conduct of Business. The Borrower will, and will
cause its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and maintain in full force and effect its/their legal
existence and its/their respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto.
SECTION 5.4 Compliance with Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations
and requirements of any Governmental Authority applicable to its properties,
except where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of
its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate actions,
(b) the Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 5.6 Books and Records. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions
in relation to its business and activities to the extent necessary to prepare
the consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7 Visitation, Inspection, Etc. The Borrower will, and will
cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers
and with its independent certified public accountants, all at such reasonable
times and as often as the Administrative Agent or any Lender may reasonably
request after reasonable prior notice to the Borrower.
SECTION 5.8 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result
in a Material Adverse Effect and (b) maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss
or damage of the kinds customarily insured against by companies in the same
or similar businesses operating in the same or similar locations.
SECTION 5.9 Use of Proceeds and Letters of Credit. The Borrower will
use the proceeds of all Loans to refinance existing Indebtedness and
thereafter for acquisitions permitted hereunder, working capital and general
corporate purposes. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes.
SECTION 5.10 Additional Subsidiaries. If any additional Subsidiary
is acquired or formed after the Closing Date, the Borrower will, within ten
(10) business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary
to execute agreements in the form of Annex I to Exhibit D and Annex I to
Exhibit E in form and substance satisfactory to the Administrative Agent and
the Required Lenders and will cause such Subsidiary to deliver simultaneously
therewith similar documents applicable to such Subsidiary required under
Section 3.1 as reasonably requested by the Administrative Agent.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
SECTION 6.1 Fixed Charge Coverage Ratio. The Borrower and its
Subsidiaries will have, as of the end of each fiscal quarter of the Borrower,
a Fixed Charge Coverage Ratio of not less than 1.25 to 1.00.
SECTION 6.2 Consolidated Tangible Net Worth. The Borrower and its
Subsidiaries will not permit its Consolidated Tangible Net Worth, measured as
of the end of each fiscal quarter of the Borrower, to be less than an amount
equal to the sum of (a) 95% of the Consolidated Tangible Net Worth of
Borrower as of March 31, 2002, plus (b) 50% of cumulative positive
Consolidated Net Income accrued since March 31, 2002, commencing with the
fiscal quarter ending June 30, 2002, plus (c) 100% of the net proceeds from
any equity offering.
SECTION 6.3 Total Lease Adjusted Funded Debt to Consolidated EBITDAR.
The Borrower and its Subsidiaries will maintain a ratio of Total Lease
Adjusted Funded Debt to Consolidated EBITDAR in accordance with the table set
forth below. This ratio will be calculated on a rolling four quarter basis
and measured as of the end of each fiscal quarter of Borrower.
DATES: REQIORED RATIO:
----------------------------------------------------------------------
From the Closing Date to December 31, 2002 3.50 to 1.00
From January 1, 2003 to March 31, 2003 3.25 to 1.00
From April 1, 2003 to March 31, 2004 3.00 to 1.00
From April 1, 2004 to the Commitment Termination Date 2.75 to 1.00
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
SECTION 7.1 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal
or replacement) or shorten the maturity or the weighted average life
thereof;
(c) Purchase money Indebtedness acceptable to Administrative
Agent not to exceed an aggregate amount of $1,000,000 outstanding at
any one time;
(d) Unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or
similar instrument) incurred in the ordinary course of business and
either (i) not more than sixty (60) days past due, or (ii) being
disputed in good faith by appropriate proceedings with reserves for
such disputed liability maintained in conformity with GAAP; and
(e) other unsecured Indebtedness in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding.
SECTION 7.2 Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
on any of its assets or property now owned or hereafter acquired or, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided, that such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary;
(c) any Liens securing purchase money Indebtedness described in
Section 7.1(c);
(d) Liens, other than those described above, encumbering assets
having a book value, as determined in accordance with GAAP, of not
greater than $1,000,000.
SECTION 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit any
other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a series
of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of
the stock of any of its Subsidiaries (in each case, whether now owned
or hereafter acquired) or liquidate or dissolve; provided, that if at
the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i)
the Borrower or any Subsidiary may merge with a Person if the Borrower
(or such Subsidiary if the Borrower is not a party to such merger) is
the surviving Person, (ii) any Subsidiary may merge into another
Subsidiary, and (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to the
Borrower or to another Subsidiary.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its
Subsidiaries on the date hereof and businesses reasonably related
thereto.
(c) The Borrower will not purchase, lease or otherwise acquire
all or any substantial portion of the property or assets (including
capital stock) of any Person (an "Acquisition") unless such Acquisition
meets the requirements of a Permitted Acquisition.
SECTION 7.4 Investments, Loans, Etc. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person (all of the foregoing being
collectively called "Investments"), or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person that
constitute a business unit, except:
(a) Investments (other than Permitted Investments) existing on
the date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Investments made by the Borrower in or to any Subsidiary
and by any Subsidiary to the Borrower or in or to another Subsidiary;
(d) Loans or advances to employees, officers or directors of
the Borrower or any Subsidiary in the ordinary course of business for
travel, relocation and related expenses; and
(e) Other Investments which in the aggregate do not exceed $10,000,000.
SECTION 7.5 Restricted Payments. The Borrower will not, and will not
permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of common stock or any options, warrants, or other
rights to purchase such common stock or such Indebtedness, whether now or
hereafter outstanding (each, a "Restricted Payment"), except for (a)
dividends payable by the Borrower solely in shares of any class of its common
stock, (b) Restricted Payments made by any Subsidiary to the Borrower or to
another Subsidiary and (c) cash dividends paid on, and cash redemptions of,
the common stock of the Borrower; provided, that (x) no Default or Event of
Default has occurred and is continuing at the time such dividend is paid or
redemption is made, and (y) the aggregate amount of all such Restricted
Payments made by the Borrower in any fiscal year does not exceed the sum of
(i) 20% of Consolidated Net Income (if greater than $0) earned during the
immediately preceding fiscal year, plus (ii) any Restricted Payments that the
Borrower was eligible to pay but did not pay during the immediately preceding
fiscal year.
SECTION 7.6 Sale of Assets. The Borrower will not, and will not permit
any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's common stock to any Person other than the
Borrower, except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) the sale or other disposition of such assets in an
aggregate amount not to exceed $500,000 in any fiscal year of the
Borrower; and
(d) the sale of specific real estate assets by the Borrower following
the purchase of such real estate assets in connection with the ▇.▇. ▇▇▇▇▇▇
Asset Sale Agreement; provided, if net proceeds from any such sale exceed
$3,000,000, Borrower shall reduce the Aggregate Revolving Commitments by
such amount in excess of $3,000,000.
SECTION 7.7 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated
third parties, (b) transactions between or among the Borrower and its wholly-
owned Subsidiaries not involving any other Affiliates and (c) any Restricted
Payment permitted by Section 7.5, and (d) the provision of transitional
services to CRG Acquisiton Corp. or its successor pursuant to the
▇.▇.▇▇▇▇▇▇ Asset Sale Agreement.
SECTION 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans
or advances to the Borrower or any other Subsidiary, to Guarantee
Indebtedness of the Borrower or any other Subsidiary or to transfer any of
its property or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i) the foregoing shall not apply to restrictions or
conditions imposed by law or by this Agreement or any other Loan Document,
(ii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such
sale, provided such restrictions and conditions apply only to the Subsidiary
that is sold and such sale is permitted hereunder, (iii) clause (a) shall not
apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions and
conditions apply only to the property or assets securing such Indebtedness
and (iv) clause (a) shall not apply to customary provisions in leases
restricting the assignment thereof.
SECTION 7.9 Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real
or personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that
it intends to use for substantially the same purpose or purposes as the
property sold or transferred.
SECTION 7.10 Hedging Agreements. The Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed
in the conduct of its business or the management of its liabilities.
SECTION 7.11 Amendment to Material Documents. The Borrower will not, and
will not permit any Subsidiary to, amend, modify or waive any of its rights
in a manner materially adverse to the Lenders under (a) its certificate of
incorporation, bylaws or other organizational documents or (b) any material
contract, including without limitation the Senior Unsecured Notes.
SECTION 7.12 Accounting Changes. The Borrower will not, and will
not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP,
or change the fiscal year of the Borrower or of any Subsidiary, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that
of the Borrower.
SECTION 7.13 Inactive Subsidiaries
(a) Borrower will not transfer any assets to an Inactive Subsidiary.
(b) Borrower will not permit the proceeds of any Advance to be used
by or for the benefit of any Inactive Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events (each an
"Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or
of any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount payable under clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three (3) Business
Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached
thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other
document submitted to the Administrative Agent or the Lenders by any
Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove
to be incorrect in any maerial respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.2, 5.3 (with respect to the
Borrower's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
referred to in clauses (a), (b) and (d) above), and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of
the Borrower becomes aware of such failure, or (ii) notice thereof
shall have been given to the Borrower by the Administrative Agent or
any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor
or as guarantor or other surety) shall fail to pay any principal of or
premium or interest on any Material Indebtedness that is outstanding,
when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument evidencing such Indebtedness;
or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable; or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of
its property, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other
similar official for the Borrower or any such [Material] Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
or (vi) take any action for the purpose of effecting any of the
foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar
law now or hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and
in any such case, such proceeding or petition shall remain undismissed
or unstayed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with other ERISA Events that
have occurred, could reasonably be expected to result in liability to
the Borrower and the Subsidiaries in an aggregate amount exceeding
$1,000,000; or
(k) any judgment or order for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against the Borrower or
any Subsidiary, and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be
expected to have a Material Adverse Effect, and there shall be a period
of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guarantee Agreement shall
for any reason cease to be valid and binding on, or enforceable
against, any Subsidiary, or any Subsidiary shall so state in writing,
or any Subsidiary shall seek to terminate its Subsidiary Guarantee
Agreement;
then, and in every such event (other than an event with respect to the
Borrower described in clause (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and upon the written request of the Required Lenders shall, by notice to
the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate the Commitments, whereupon the Commitment of
each Lender shall terminate immediately; (ii) declare the principal of and
any accrued interest on the Loans, and all other Obligations owing hereunder,
to be, whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower and (iii) exercise all remedies contained in
any other Loan Document; and that, if an Event of Default specified in either
clause (g) or (h) shall occur, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations shall automatically
become due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its
behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its
duties hereunder by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-
agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent
and the Related Parties of the Administrative Agent and any such sub-
agent and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuing Bank with respect thereto; provided, that the
Issuing Bank shall have all the benefits and immunities (i) provided to
the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used
in this Article IX included the Issuing Bank with respect to such acts
or omissions and (ii) as additionally provided in this Agreement with
respect to the Issuing Bank.
SECTION 9.2 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of
whether a Default or an Event of Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2) or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall not be deemed to have knowledge of any Default
or Event of Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or any Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan
Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
SECTION 9.3 Lack of Reliance on the Administrative Agent. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges 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 credit analysis and decision to enter into this
Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, continue to make its own decisions
in taking or not taking of any action under or based on this Agreement, any
related agreement or any document furnished hereunder or thereunder.
SECTION 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall
not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders where required by the terms of this
Agreement.
SECTION 9.5 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been
signed, sent or made by the proper Person. The Administrative Agent may also
rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or not taken by
it in accordance with the advice of such counsel, accountants or experts.
SECTION 9.6 The Administrative Agent in its Individual Capacity. The
bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the
same as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless
the context clearly otherwise indicates, include the Administrative Agent in
its individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
SECTION 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to the approval by the Borrower
provided that no Default or Event of Default shall exist at such time.
If no successor Administrative Agent shall have been so appointed, and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of
America or any state thereof or a bank which maintains an office in the
United States, having a combined capital and surplus of at least
$500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given
of the retiring Administrative Agent's resignation under this Section
9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the
retiring Administrative Agent's resignation shall become effective,
(ii) the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and (iii) the
Required Lenders shall thereafter perform all duties of the retiring
Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided
above. After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article IX shall continue in effect for the
benefit of such retiring Administrative Agent and its representatives
and agents in respect of any actions taken or not taken by any of them
while it was serving as the Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
To the Borrower: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Bass, ▇▇▇▇▇ & ▇▇▇▇, PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇./▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Swingline Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the mails or if delivered,
upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective
until actually received by such Person at its address specified in this
SECTION 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Borrower. The
Administrative Agent and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and Lenders
shall not have any liability to the Borrower or other Person on account
of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any
failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by
the Administrative Agent and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.
SECTION 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder
or any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent or any Lender, shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right or power or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise thereof or
the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and
the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No
waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or the
issuance of a Letter of Credit shall not be construed as a waiver of
any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders
or the Borrower and the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any
fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.19(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without
the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders which
are required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of
each Lender; (vi) release any guarantor or limit the liability of any
such guarantor under any guaranty agreement; (vii) release all or
substantially all collateral (if any) securing any of the Obligations;
provided further, that no such agreement shall amend, modify or
otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Bank or the Issuing Bank without
the prior written consent of such Person.
SECTION 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for
the Administrative Agent and its Affiliates, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any
amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document
shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside
counsel) incurred by the Administrative Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or any Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing (each, an "Indemnitee") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages
and related expenses, including the fees, charges and disbursements of
any counsel for any Indemnitee, which may be incurred by or asserted
against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other
agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the
consummation of any of the transactions contemplated hereby, (ii) any
Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned by the Borrower or
any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that
the Borrower shall not be obligated to indemnify any Indemnitee for any
of the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct as determined by a court of competent jurisdiction
in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all present
and future stamp, documentary, and other similar taxes with respect to
this Agreement and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the Administrative
Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such
taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or
the Swingline Lender under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be, such Lender's Pro Rata
Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to actual or direct damages) arising out
of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Commitment
and the Loans and LC Exposure at the time owing to it); provided, that
(i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Bank and the Swingline Lender) must give their
prior written consent (which consent shall not be unreasonably withheld
or delayed), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire amount of the
assigning Lender's Commitment hereunder or an assignment while an Event
of Default has occurred and is continuing, the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $1,000,000 (unless the Borrower and the Administrative Agent shall
otherwise consent), (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement and the other Loan Documents, (iv)
the assigning Lender and the assignee shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee payable by the assigning Lender or the
assignee (as determined between such Persons) in an amount equal to
$1,000 and (v) such assignee, if it is not a Lender, shall deliver a
duly completed Administrative Questionnaire to the Administrative
Agent; provided, that any consent of the Borrower otherwise required
hereunder shall not be required if an Event of Default has occurred and
is continuing. Upon the execution and delivery of the Assignment and
Acceptance and payment by such assignee to the assigning Lender of an
amount equal to the purchase price agreed between such Persons, such
assignee shall become a party to this Agreement and any other Loan
Documents to which such assigning Lender is a party and, to the extent
of such interest assigned by such Assignment and Acceptance, shall have
the rights and obligations of a Lender under this Agreement, and the
assigning Lender shall be released from its obligations hereunder to a
corresponding extent (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.18, 2.19 and 2.20
and 10.3. Upon the consummation of any such assignment hereunder, the
assigning Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements to have new Notes issued if so requested by
either or both the assigning Lender or the assignee. Any assignment or
other transfer by a Lender that does not fully comply with the terms of
this clause (b) shall be treated for purposes of this Agreement as a
sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it and its LC Exposure); provided, that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of its obligations hereunder,
and (iii) the Borrower, the Administrative Agent, the Swingline Bank,
the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and the other Loan Documents. Any
agreement between such Lender and the Participant with respect to such
participation shall provide that such Lender shall retain the sole
right and responsibility to enforce this Agreement and the other Loan
Documents and the right to approve any amendment, modification or
waiver of this Agreement and the other Loan Documents; provided, that
such participation agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver of this Agreement described in the first proviso
of Section 10.2(b) that affects the Participant. The Borrower agrees
that each Participant shall be entitled to the benefits of Sections
2.16, 2.17 and 2.18 to the same extent as if it were a Lender hereunder
and had acquired its interest by assignment pursuant to paragraph (b);
provided, that no Participant shall be entitled to receive any greater
payment under Section 2.16 or 2.18 than the applicable Lender would
have been entitled to receive with respect to the participation sold to
such Participant unless the sale of such participation is made with the
Borrower's prior written consent. To the extent permitted by law, the
Borrower agrees that each Participant shall be entitled to the benefits
of Section 2.19 as though it were a Lender, provided, that such
Participant agrees to share with the Lenders the proceeds thereof in
accordance with Section 2.19 as fully as if it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure its obligations to a Federal Reserve Bank
without complying with this Section; provided, that no such pledge or
assignment shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(e) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPV"), identified as such in writing from time to time by
the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided, that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan and (ii) if an SPV
elects not to exercise such option or otherwise fails to provide all or
any part of any Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if such Loan were made by such Granting Lender.
Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior indebtedness of any
SPV, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State contrary in this Section 10.4. Any SPV
may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Loans to
the Granting Lender or to any financial institutions (consented to by
the Borrower and the Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPV to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancement to such SPV. As this Section 10.4(g) applies
to any particular SPV, this Section may not be amended without the
written consent of such SPV.
SECTION 10.5 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving
effect to the conflict of law principles thereof) of the State of
Tennessee.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction
of the United States District Court of the Middle District of
Tennessee, and of any state court of the State of Tennessee and any
appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such
Tennessee state court or, to the extent permitted by applicable law,
such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in paragraph (b) of this
Section. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1.
Nothing in this Agreement or in any other Loan Document will affect the
right of any party hereto to serve process in any other manner
permitted by law.
SECTION 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 10.7 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any
such rights, each Lender and the Issuing Bank shall have the right, at any
time or from time to time upon the occurrence and during the continuance of
an Event of Default, without prior notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable
law, to set off and apply against all deposits (general or special, time or
demand, provisional or final) of the Borrower at any time held or other
obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrower against any and all Obligations
held by such Lender or the Issuing Bank, as the case may be, irrespective of
whether such Lender or the Issuing Bank shall have made demand hereunder and
although such Obligations may be unmatured. Each Lender and the Issuing Bank
agree promptly to notify the Administrative Agent and the Borrower after any
such set-off and any application made by such Lender and the Issuing Bank, as
the case may be; provided, that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 10.8 Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
This Agreement, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent
constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements and understandings, oral or written, regarding such subject
matters.
SECTION 10.9 Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3
and Article IX shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans and the issuance of the Letters of
Credit.
SECTION 10.10 Severability. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the
legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.11 Confidentiality. Each of the Administrative Agent,
the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process, (iii) to the extent requested by any regulatory agency or
authority, (iv) to the extent that such information becomes publicly
available other than as a result of a breach of this Section, or which
becomes available to the Administrative Agent, the Issuing Bank, any Lender
or any Related Party of any of the foregoing on a nonconfidential basis from
a source other than the Borrower, (v) in connection with the exercise of any
remedy hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, and (ix) subject to provisions
substantially similar to this Section 10.11, to any actual or prospective
assignee or Participant, or (vi) with the consent of the Borrower. Any Person
required to maintain the confidentiality of any information as provided for
in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person would accord its own
confidential information.
SECTION 10.12 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which may be treated
as interest on such Loan under applicable law (collectively, the "Charges"),
shall exceed the maximum lawful rate of interest (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved by a Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
---------
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
ADMINISTRATIVE AGENT:
---------------------
SUNTRUST BANK
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------
Title: Director
----------------------------
Revolving Commitment: $40,000,000
LC Commitment: $5,000,000
Swingline Commitment: $10,000,000
NATIONAL CITY BANK OF KENTUCKY,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
Schedule I
----------
(CAPTION>
Total Lease Adjusted Funded Debt to Applicable Margin
Consolidated EBITDAR (basis points per annum)
----------------------------------------------------------------------------
Base LIBOR Commitment Fee
---- ----- --------------
Less than 1.50 to 1.00 0.00 125.0 25.0
Greater than or equal to 1.50 to 1.00
and less than 2.00 to 1.00 0.00 175.0 37.5
Greater than or equal to 2.00 to 1.00
and less than 2.50 to 1.00 0.25 200.0 37.5
Greater than or equal to 2.50 to 1.00
and less than 3.00 to 1.00 0.50 225.0 50.0
Greater then or equal to 3.00 to 1.00 0.75 250.0 50.0
Schedule 4.14(a)
----------------
Subsidiaries
Borrower's
Percentage
Ownership Incorporation
Name Interest Jurisdiction Type
---- --------- ------------- --------
1. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Sales Co., Inc. 100% Delaware Corporation
2. The Norwalk Company 100% Delaware Corporation
3. Editorial Caribe, Inc. 100% Florida Corporation
4. Elm Hill Press, Inc. 100% Tennessee Corporation
5. ▇▇▇▇▇▇ Direct Marketing Services, Inc. 100% Delaware Corporation
6. New Life Treatment Centers, Inc. 99.2% Delaware Corporation
7. The Wickenburg Company 99.2% Delaware Corporation
8. Women of Faith, Inc. 99.2% Delaware Corporation
9. Worthy, Inc. 100% Delaware Corporation
10. They Hayward California Company 100% Delaware Corporation
Schedule 4.14(b)
----------------
Inactive Subsidiaries
Approximate Market Value
Name of Assets Owned
---- ------------------------
1. 855763 Ontario Ltd. $ - 0 -
2. Right Things, Inc. $ - 0 -
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Acquistion Co., Inc. $ - 0 -
4. ▇▇▇▇▇▇ Communications, Inc. $ - 0 -
5. ▇▇▇▇▇▇ Media, Inc. $ - 0 -
6. Royal Publishers, Inc. $ - 0 -
7. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Export, Inc. $ - 0 -
8. ▇▇▇▇▇▇ Acquistion Co., Inc. $ - 0 -
9. Parclete, Inc. $ - 0 -
10. ▇▇▇▇ ▇▇▇▇▇ Cake $ - 0 -
Schedule 7.1
------------
Outstanding Indebtedness
1. Indebtedness of Borrower with approximate outstanding principal balance
of $900,000 incurred in connection with $2,850,000 Industrial Development
Revenue Refunding Bonds, Series 1990 (▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Project) of the
Industrial Development Board of the Metropolitan Government of Nashville
and Davidson County (the "Board"), as evidenced by:
(a) Loan Agreement dated as of May 1, 1990, between the Board and
Borrower; and
(b) Reimbursement Agreement dated as of May 1, 1990, between Borrower
and SunTrust Bank.
2. Indebtedness of Borrower with an approximate outstanding principal
balance of $9,230,750 issued in connection with the $15,000,000 Loan
from Metropolitan Life Insurance Company ("MetLife") to Borrower
evidenced by:
(a) Note Purchase Agreement dated January 3, 1996, among Borrower, The
Prudential Life Insurance Company of America and MetLife; and
(b) 6.93% Series B Senior Note Due December 31, 2005, made payable by
Borrower to MetLife, with an outstanding principal balance of
$9,230,750.
3. Indebtedness of Borrower with an approximate outstanding principal
balance of $1,428,570 issued in connection with the $5,000,000 loan
from MetLife to Borrower evidenced by:
(a) Assumption and Amendment Agreement dated May 30, 1996, by and among
Borrower, the ▇.▇. ▇▇▇▇▇▇ Company and MetLife; and
(b) 8.31% Senior Note Due June 23, 2004, made payable by Borrower to
MetLife, with an outstanding principal balance of $1,428,570.
Schedule 7.2
------------
Existing Liens
1. Liens securing the indebtedness described in Item 1 of Schedule 7.1,
including:
a. Deed of Trust from ▇▇▇▇▇▇ to A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as Trustee
dated as of May 1, 1990, of record in Book 8111, page 986,
Register's Office of Davidson County, Tennessee ("RODCT").
b. Collateral Assignment of Rents and Leases dated as of May 1,
1990 between ▇▇▇▇▇▇ and the Board and Third National Bank in
Nashville, of Record in Book 8112, page 1, RODCT.
2. Liens securing, pari passu, the Senior Unsecured Notes described in
Items 2 and 3 of Schedule 7.1 and the Loans, including:
a. Amended and Restated Pledge Agreement dated January 3, 1996, by
and among Borrower and the banks named therein, Metropolitan Life
Insurance Company, The Prudential Insurance Company and SunTrust
Bank, as Agent, with respect to pledge of 100% of the outstanding
common stock of The Norwalk Company (formerly known as ▇. ▇.
▇▇▇▇▇▇ Company), as amended by Amendment and Supplement No. 1
with respect thereto by and among the aforesaid parties, dated as
of May 30, 1996.
b. Amended and Restated Pledge Agreement dated January 3, 1996, by
and among Borrower and the banks named therein, Metropolitan Life
nsurance Company, The Prudential Insurance Company and SunTrust
Bank, as Agent, with respect to pledge of 100% of the outstanding
common stock of Worthy, Inc. (formerly known as Word
Incorporated), as amended by Amendment and Supplement No. 1 with
respect thereto by and among the aforesaid parties, dated as of
May 30, 1996.
[FOLLOWING SUBJECT TO CHANGE BASED ON PENDING UCC-11 SEARCHES]
3. UCC-1 Financing Statement showing Borrower as the Debtor and Comdisco,
Inc. (Hitachi Credit as assignee) as Secured Party, filed with the
Tennessee Secretary of State as #857974.
4. UCC-1 Financing Statement showing Borrower as Debtor and Capitol
Systems, Inc. (Contel Credit Corporation as assignee) as Secured Party,
filed with the Tennessee Secretary of State as #688961.
5. UCC-1 Financing Statement showing Editorial Caribe, Inc. as Debtor and
Latin America Mission Publications, Incorporated as the Secured Party,
filed with the Florida Secretary of State as #91 ▇▇▇▇▇▇▇▇▇▇.
6. UCC-1 Financing Statement showing Editorial Caribe, Inc. as Debtor and
Garborg's Heart'n Home, Inc. as the Secured Party, filed with the Florida
Secretary of State as #92 0000164003.
Schedule 7.4
------------
Existing Investments
1. Subordinated Promissory Note of Remuda Ranch Company payable to ▇▇▇▇▇▇
▇▇▇▇▇▇, Inc. in the amount of $2,000,000 dated July 18, 2001 with
principal due on the fith anniversary bearhing interest at 8% per annum.
2. Promissory Note of Ceres (USA) Inc. payable to The ▇▇▇▇▇▇▇ California
Company in the amount of $150,000 dated August 31, 2001 due and payble
in eight equal quartelry installments bearing interest at 7% per annum.
EXHIBIT A
REVOLVING CREDIT NOTE
$------------- Nashville, Tennessee
June 28, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee
corporation (the "Borrower"), hereby promises to pay to ---------------------
-----------------------------(the "Lender") or its registered assigns, at the
office of SunTrust Bank ("SunTrust") at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Commitment Termination Date, as defined in that
certain Revolving Credit Agreement dated as of June 28, 2002 (as the same may
be amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders from time to time party thereto
and SunTrust, as administrative agent for the lenders, the lesser of the
principal sum of $----------------, and the aggregate unpaid principal
amount of all Revolving Loans made by the Lender to the Borrower pursuant to
the Credit Agreement, in lawful money of the United States of America in
immediately available funds, and to pay interest from the date hereof on the
principal amount thereof from time to time outstanding, in like funds, at
said office, at the rate or rates per annum and payable on such dates as
provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further promises to pay all costs of collection, including the reasonable
attorneys' fees of the Lender. Capitalized terms not otherwise defined herein
shall have such meaning as set forth in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their
due dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, that the failure of the holder hereof to make such a notation or
any error in such notation shall not affect the obligations of the Borrower
to make the payments of principal and interest in accordance with the terms
of this Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of
the Credit Agreement, all upon the terms and conditions therein specified.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF TENNESSEE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
BORROWER:
---------
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
LOANS AND PAYMENTS
Date Amount and Payments of Unpaid Principal Name of Person
Type of Loan Principal Balance of Note Making Notation
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
Exhibit B
---------
SWINGLINE NOTE
$10,000,000 Nashville, Tennessee
June 28, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee
corporation (the "Borrower"), hereby promises to pay to SUNTRUST BANK (the
"Swingline Lender") or its registered assigns, at the office of SunTrust Bank
("SunTrust") at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the
Commitment Termination Date, as defined in the Revolving Credit Agreement
dated as of June 28, 2002 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto and SunTrust, as
administrative agent for the lenders, the lesser of the principal sum of TEN
MILLION and no/100 Dollars ($10,000,000.00) and the aggregate unpaid
principal amount of all Swingline Loans made by the Swingline Lender to the
Borrower pursuant to the Credit Agreement, in lawful money of the United
States of America in immediately available funds, and to pay interest from
the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum
and payable on such dates as provided in the Credit Agreement. In addition,
should legal action or an attorney-at-law be utilized to collect any amount
due hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Swingline Lender. Capitalized
terms not otherwise defined herein shall have such meaning as set forth in
the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their
due dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part
hereof, or otherwise recorded by such holder in its internal records;
provided, that the failure of the holder hereof to make such a notation or
any error in such notation shall not affect the obligations of the Borrower
to make the payments of principal and interest in accordance with the terms
of this Swingline Note and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TENNESSEE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
BORROWER:
---------
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
LOANS AND PAYMENTS
Date Amount and Payments of Unpaid Principal Name of Person
Type of Loan Principal Balance of Note Making Notation
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
---- ------------ ----------- ----------------- ---------------
Exhibit C
---------
ASSIGNMENT AND ACCEPTANCE
Date:
-----------------
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee corporation, the Lenders
from time to time party hereto and SunTrust Bank, as Administrative Agent for
the Lenders. Terms defined in the Credit Agreement are used herein with the
same meanings. Capitalized terms not otherwise defined herein shall have such
meaning as set forth in the Credit Agreement.
The Assignor hereby sells and assigns, without recourse, to the
Assignee designated below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assigno's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth below in the Revolving Commitment
of the Assignor on the Assignment Date and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in the LC Exposure and the Swingline Exposure of the Assignor
on the Assignment Date, but excluding accrued interest and fees to and
excluding the Assignment Date. The Assignee hereby acknowledges receipt of a
copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with, if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The Assignee shall pay
the fee payable to the Administrative Agent pursuant to Section 10.4(b) of
the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Tennessee.
Date of Assignment:
--------------------------------
Legal Name of Assignor:
---------------------------
Legal Name of Assignee:
---------------------------
Assignee's Address for Notices:
-------------------------------------------
--------------------------------------------------------------------------
Effective Date of Assignment:
---------------------
("Assignment Date"):------------------------------
Percentage Assigned of
Facility Principal Amount Assigned Revolving Commitment
--------------------- ------------------------- -----------------------
Revolving Loans
--------------------- ------------------------- -----------------------
The terms set forth above are hereby agreed to:
ASSIGNOR:
---------
By:
----------------------------
Title:
----------------------------
ASSIGNEE:
---------
By:
----------------------------
Title:
----------------------------
The undersigned hereby consents to the within assignment:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC, as Borrower SUNTRUST BANK, as Administrative Agent
and Issuing Bank:
By: By:
---------------------------- ---------------------------------
Title: Title:
------------------------- ------------------------------
Exhibit D
---------
SUBSIDIARY GUARANTEE AGREEMENT
THIS SUBSIDIARY GUARANTEE AGREEMENT dated as of June 28, 2002, among
each of the Subsidiaries listed on Schedule I hereto (each such subsidiary
individually, a "Guarantor" and collectively, the "Guarantors") of ▇▇▇▇▇▇
▇▇▇▇▇▇, INC., a Tennessee corporation (the "Borrower"), and SUNTRUST BANK,
a Georgia banking corporation as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to
below).
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended, supplemented or otherwise modified from time
time, the "Credit Agreement"), among the Borrower, the Lenders from time to
time party thereto and Administrative Agent as a Lender, Swingline Lender and
Issuing Bank. Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in,
the Credit Agreement. Each of the Guarantors is a direct or indirect wholly-
owned Subsidiary of the Borrower and acknowledges that it will derive
substantial benefit from the making of the Loans by the Lenders, and the
issuance of the Letters of Credit by the Issuing Bank. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the
Guarantors of a Subsidiary Guarantee Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make Loans and
the Issuing Bank to issue Letters of Credit, the Guarantors are willing to
execute this Subsidiary Guarantee Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement or
disbursements, interest thereon and obligations to provide cash collateral,
and (iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding), of the Loan Parties to
the Administrative Agent and the Lenders under the Credit Agreement and the
other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant
to the Credit Agreement and the other Loan Documents; and (c) the due and
punctual payment and performance of all obligations of the Borrower, monetary
or otherwise, under each Hedging Agreement entered into with a counterparty
that was a Lender or an Affiliate of a Lender at the time such Hedging
Agreement was entered into (all the monetary and other obligations referred
to in the preceding clauses (a) through (c) being collectively called the
"Obligations"). Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from
and protest to the Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for nonpayment. To the
fullest extent permitted by applicable law, the obligations of each Guarantor
hereunder shall not be affected by (a) the failure of the Administrative
Agent or any Lender to assert any claim or demand or to enforce or exercise
any right or remedy against the Borrower or any other Guarantor under the
provisions of the Credit Agreement, any other Loan Document or otherwise, (b)
any rescission, waiver, amendment or modification of, or any release from any
of the terms or provisions of, this Agreement, any other Loan Document, any
Guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of
the Administrative Agent or any Lender.
SECTION 3. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books
of the Administrative Agent or any Lender in favor of the Borrower or any
other person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim
of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality
or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of
the Administrative Agent or any Lender to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or omission that may or
might in any manner or to the extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of each Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out
of any defense of the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible payment in
full in cash of the Obligations. The Administrative Agent and the Lenders
may, at their election, foreclose on any security held by one or more of them
by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Borrower or any other
guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though
such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against the Borrower or any other Guarantor or guarantor,
as the case may be, or any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any Lender has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent for the benefit of the Lenders in cash the amount of
such unpaid Obligations. Upon payment by any Guarantor of any sums to the
Administrative Agent, all rights of such Guarantor against the Borrower
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate
and junior in right of payment to the prior indefeasible payment in full in
cash of all the Obligations. In addition, any indebtedness of the Borrower
now or hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full in cash of the Obligations. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of the Borrower, such amount shall be held in trust for
the benefit of the Administrative Agent and the Lenders and shall forthwith
be paid to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of
the Loan Documents.
SECTION 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to
it (as a Subsidiary of the Borrower) contained in the Credit Agreement are
true and correct.
SECTION 9. Termination. The guarantees made hereunder (a) shall
terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement, the LC
Exposure has been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit under the Credit Agreement and (b)
shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise. In connection
with the foregoing, the Administrative Agent shall execute and deliver to
such Guarantor or Guarantor's designee, at such Guarantor's expense, any
documents or instruments which such Guarantor shall reasonably request from
time to time to evidence such termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantors that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall
become effective as to any Guarantor when a counterpart hereof executed on
behalf of such Guarantor shall have been delivered to the Administrative
Agent, and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and
shall inure to the benefit of such Guarantor, the Administrative Agent and
the Lenders, and their respective successors and assigns, except that no
Guarantor shall have the right to assign its rights or obligations hereunder
or any interest herein (and any such attempted assignment shall be void). If
all of the capital stock of a Guarantor is sold, transferred or otherwise
disposed of pursuant to a transaction permitted by the Credit Agreement, such
Guarantor shall be released from its obligations under this Agreement without
further action. This Agreement shall be construed as a separate agreement
with respect to each Guarantor and may be amended, modified, supplemented,
waived or released with respect to any Guarantor without the approval of any
other Guarantor and without affecting the obligations of any other Guarantor
hereunder.
SECTION 11. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any in
exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and of the
Administrative Agent hereunder and of the Lenders under the other Loan
Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle
such Guarantor to any other or further notice in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement
entered into between the Guarantors with respect to which such waiver,
amendment or modification relates and the Administrative Agent, with
the prior written consent of the Required Lenders (except as otherwise
provided in the Credit Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it
at its address set forth on Schedule I attached hereto.
SECTION 14. Survival of Agreement; Severability.
(a) All covenants, agreements representations and warranties made
by the Guarantors herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement
or the other Loan Document shall be considered to have been relied upon
by the Administrative Agent and the Lenders and shall survive the
making by the Lenders of the Loans and the issuance of the Letters of
Credit by the Issuing Bank regardless of any investigation made by any
of them or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan
Document is outstanding and unpaid or the LC Exposure does not equal
zero and as long as the Commitments have not been terminated.
(b) In the event one or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity
of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute a single contract (subject to Section
10), and shall become effective as provided in Section 10. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be
as effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 16. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any Tennessee State court or Federal court of the United States of
America sitting in Tennessee, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such
Tennessee State court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Guarantor or its
properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any Tennessee State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 14.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 17. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 19.
SECTION 18. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary that was not in existence on the date of
the Credit Agreement is required to enter into this Agreement as a Guarantor
upon becoming Subsidiary. Upon execution and delivery after the date hereof
by the Administrative Agent and such Subsidiary of an instrument in the form
of Annex 1, such Subsidiary shall become a Guarantor hereunder with the same
force and effect as if originally named as a Guarantor herein. The execution
and delivery of any instrument adding an additional Guarantor as a party to
this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Agreement.
SECTION 19. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and the Issuing Bank are hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Indebtedness at any time
owing by such Lender or the Issuing Bank to or for the credit or the account
of any Guarantor against any or all the obligations of such Guarantor now or
hereafter existing under this Agreement and the other Loan Documents held by
such Lender or the Issuing Bank, irrespective of whether or not such Person
shall have made any demand under this Agreement or any other Loan Document
and although such obligations may be unmatured. The rights of each Lender and
the Issuing Bank under this Section 19 are in addition to other rights and
remedies (including other rights of setoff) which such Lender or the Issuing
Bank, as the case may be, may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
GUARANTORS:
-----------
[list each subsidiary set forth on
Schedule I]
By:
----------------------------
Title:
----------------------------
ADMINISTRATIVE AGENT:
---------------------
SUNTRUST BANK
By:
----------------------------
Title:
----------------------------
SCHEDULE I
----------
Guarantor(s) Address
------------ -------
Annex 1
-------
SUPPLEMENT NO. ------ dated as of ------------------, ---------,
to the Subsidiary Guarantee Agreement (the "Guarantee Agreement") dated as of
June 28, 2002 among each of the subsidiaries listed on Schedule I thereto
(each such Subsidiary individually, a "Guarantor" and collectively, the
"Guarantors") of ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee corporation (the
"Borrower"), and SUNTRUST BANK, a Georgia banking corporation, as
Administrative Agent (the "Administrative Agent") for the Lenders (as defined
in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to
time party thereto and Administrative Agent, as a Lender, Swingline Lender
and Issuing Bank. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
B. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary
that was not in existence on the date of the Credit Agreement is required to
enter into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary.
Section 18 of the Guarantee Agreement provides that additional Subsidiaries
of the Borrower may become Guarantors under the Guarantee Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Credit Agreement
to become a Guarantor under the Guarantee Agreement in order to induce the
Lenders to make additional Loans and the Issuing Bank to issue additional
Letters of Credit and as consideration for Loans previously made and Letters
of Credit previously issued.
ACCORDINGLY, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 18 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the
Guarantee Agreement with the same force and effect as if originally named
therein as a Guarantor and the New Guarantor hereby (a) agrees to all the
terms and provisions of the Guarantee Agreement applicable to it as Guarantor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Guarantor thereunder are true and correct on and
as of the date hereof. Each reference to a Guarantor in the Guarantee
Agreement shall be deemed to include the New Guarantor. The Guarantee
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective
when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New
Guarantor and the Administrative Agent. Delivery of an executed signature
page to this Supplement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein and in the Guarantee Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction). The
parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to
it at the address set forth under its signature below, with a copy to the
Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the fees, disbursements and other charges of counsel for the
Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and
year first above written.
NEW GUARANTOR:
--------------
----------------------------
By:
----------------------------
Title:
----------------------------
ADMINISTRATIVE AGENT:
---------------------
SUNTRUST BANK
By:
----------------------------
Title:
----------------------------
Exhibit E
---------
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated as of June 28,
2002, among ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee corporation (the "Borrower"),
each Subsidiary listed on Schedule I hereto (the "Guarantors"), SUNTRUST
BANK, a Georgia banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders (as defined in the
Credit Agreement referred to below).
Reference is made to (a) that certain Revolving Credit Agreement dated
as of June 28, 2002 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the Lenders from time
to time party thereto, and Administrative Agent, as a Lender, Swingline
Lender and Issuing Bank, and (b) that certain Subsidiary Guarantee Agreement
dated as June 28, 2002, among the Guarantors and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement"). Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in,
the Credit Agreement. The Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Guarantee Agreement) of the Borrower under the
Credit Agreement pursuant to the Guarantee Agreement. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the
Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law
(but subject to Section 3), the Borrower agrees that in the event a payment
shall be made by any Guarantor under the Guarantee Agreement, the Borrower
shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement
and such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the
amount of such payment, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 11, the date of the Supplement hereto
executed and delivered by such Guarantor). Any Contributing Guarantor making
any payment to a Claiming Guarantor pursuant to this Section 2 shall be
subrogated to the rights of such Claiming Guarantor under Section 1 to the
extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and
2 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required under applicable law
or otherwise shall in any respect limit the obligations and liabilities of
any Guarantor with respect to its obligations hereunder, and each Guarantor
shall remain liable for the full amount of the obligations of such Guarantor
hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not
been reduced to zero or any of the Commitments under the Credit Agreement
have not been terminated, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by any Lender or
any Guarantor upon the bankruptcy or reorganization of the Borrower, any
Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. No Waiver; Amendment.
(a) No failure on the part of the Administrative Agent or any
Guarantor to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. None of the Administrative Agent and
the Guarantors shall be deemed to have waived any rights hereunder
unless such waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement
entered into between the Borrower, the Guarantors and the
Administrative Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and assigns. Neither the Borrower nor any Guarantor may assign or transfer
any of its rights or obligations hereunder (and any such attempted assignment
or transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Guarantor will cease to
have any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability.
(a) All covenants and agreements made by the Borrower and each
Guarantor herein and in the certificates or other instruments prepared
or delivered in connection with this Agreement or the other Loan
Documents shall be considered to have been relied upon by the
Administrative Agent, the Lenders and each Guarantor and shall survive
the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loans
or any other fee or amount payable under the Credit Agreement or this
Agreement or under any of the other Loan Documents is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the
Commitments have not been terminated.
(b) In case one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid, illegal
or unenforceable, but the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts) each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Administrative Agent. Delivery of
an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart of this
Agreement.
SECTION 11. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary of the Borrower that was not in existence
on the date of the Credit Agreement is required to enter into the Guarantee
Agreement as Guarantor upon becoming a Subsidiary. Upon the execution and
delivery, after the date hereof, by the Administrative Agent and such
Subsidiary of an instrument in the form of Annex I hereto, such Subsidiary
shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor hereunder. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall
not require the consent of any Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing
above.
BORROWER:
---------
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
GUARANTORS:
--------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Sales Co., Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
The Norwalk Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Editorial Caribe, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Elm Hill Press, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
▇▇▇▇▇▇ Direct Marketing Services, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
New Life Treatment Centers, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
The Wickenburg Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Women of Faith, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Worthy, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
The Hayward California Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
ADMINISTRATIVE AGENT:
---------------------
SUNTRUST BANK
By:
----------------------------
Title:
----------------------------
SCHEDULE I
----------
Guarantor(s)
------------
Name Address
---- -------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Sales Co., Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Norwalk Company ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Editorial Caribe, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Elm Hill Press, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Direct Marketing Services, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Life Treatment Centers, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Wickenburg Company ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Women of Faith, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Worthy, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Hayward California Company ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Annex I
-------
SUPPLEMENT NO. ------ dated as of ----------------, --------, to the
Indemnity, Subrogation and Contribution Agreement dated as of June 28, 2002
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Indemnity, Subrogation and Contribution Agreement") among ▇▇▇▇▇▇
▇▇▇▇▇▇, INC., a Tennessee corporation (the "Borrower"), each Subsidiary
listed on Schedule I thereto (the "Guarantors") and SUNTRUST BANK, a Georgia
banking corporation, as administrative agent (the "Administrative Agent") for
the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to (a) that certain Revolving Credit Agreement
dated as of June 28, 2002 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders
from time to time party thereto, and Administrative Agent, as a Lender,
Swingline Lender and Issuing Bank, and (b) that certain Subsidiary Guarantee
Agreement dated as June 28, 2002, among the Guarantors and the Administrative
Agent (as amended, supplemented or otherwise modified from time to time, the
"Guarantee Agreement"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Indemnity, Subrogation and Contribution Agreement and the Credit Agreement.
B. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section
5.10 of the Credit Agreement, each Subsidiary that was not in existence on
the date of the Credit Agreement is required to enter into the Guarantee
Agreement as a Guarantor upon becoming a Subsidiary. Section 11 of the
Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiaries may become Guarantors under the Indemnity, Subrogation and
Contribution Agreement by execution and delivery of an instrument in the form
of this Supplement. The undersigned Subsidiary (the "New Guarantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously
issued.
ACCORDINGLY, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 11 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes
a Guarantor under the Indemnity, Subrogation and Contribution Agreement with
the same force and effect as if originally named therein as a Guarantor and
the New Guarantor hereby agrees to all the terms and provisions of the
Indemnity, Subrogation and Contribution Agreement applicable to it as
Guarantor thereunder. Each reference to a Guarantor in the Indemnity,
Subrogation and Contribution Agreement shall be deemed to include the New
Guarantor. The Indemnity, Subrogation and Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute
a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement
that, when taken together, bear the signature of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but
the validity, legality and enforceability of the remaining provisions
contained herein and in the Indemnity, Subrogation and Contribution Agreement
shall not in any way be affected or impaired. The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
NEW GUARANTOR:
--------------
----------------------------
By:
----------------------------
Title:
----------------------------
ADMINISTRATIVE AGENT:
---------------------
SUNTRUST BANK
By:
----------------------------
Title:
----------------------------
Exhibit 2.3
-----------
NOTICE OF REVOLVING BORROWING
--------------------,-----------
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein,
and SunTrust Bank, as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes a
Notice of Revolving Borrowing, and the Borrower hereby requests a Revolving
Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing
requested hereby:
(A) Aggregate principal amount of Revolving Borrowing: $
-----------------
(B) Date of Revolving Borrowing (which is a Business Day):
---------------
(C) Interest Rate basis:
-------------------------------------------------
(D) Interest Period (if applicable):
-------------------------------------
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed:
----------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit
Agreement are satisfied.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Exhibit 2.5
-----------
NOTICE OF SWINGLINE BORROWING
---------------------,--------
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein,
and SunTrust Bank, as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes a
Notice of Swingline Borrowing, and the Borrower hereby requests a Swingline
Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing
requested hereby:
(A) Principal amount of Swingline Loan: $
-------------------------------
(B) Date of Swingline Loan (which is a Business Day):
--------------------
(C) Location and number of Borrower's account to which proceeds of
Swingline Loan are to be disbursed:
----------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit
Agreement are satisfied.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Exhibit 2.9
-----------
FORM OF CONTINUATION/CONVERSION
----------------------,---------
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein,
and SunTrust Bank, as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes a
Continuation/Conversion and the Borrower hereby requests the conversion or
continuation of a Revolving Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to
the Revolving Borrowing to be converted or continued as requested hereby:
(A) Revolving Borrowing to which this request applies:
--------------------
-----------------------------------------------------------------------
(B) Principal amount of Revolving Borrowing to be
converted/continued: $
------------------------------------------------
(C) Effective date of election (which is a Business Day):
-------------------
(D) Interest rate basis:
--------------------------------------------------
(E) Interest Period (if applicable):
---------------------------------------
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Secretary
Exhibit 3.1(b)(iv)
------------------
Form of Secretary's Certificate of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
Reference is made to the Revolving Credit Agreement dated as of
June 28, 2002 (the "Credit Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC. (the
"Borrower"), the lenders named therein, and SUNTRUST BANK, as Administrative
Agent. Terms defined in the Credit Agreement are used herein with the same
meanings. This certificate is being delivered pursuant to Section 3.1 of the
Credit Agreement.
I, ▇▇▇ ▇. ▇▇▇▇▇▇, Secretary of the Borrower, DO HEREBY CERTIFY that:
(a) there have been no amendments or supplements to, or
restatements of, the articles of incorporation of the Borrower
delivered pursuant to Section 3.1 of the Credit Agreement;
(b) no proceedings have been instituted or are pending or contemplated
by the Borrower with respect to the dissolution, liquidation or sale of
all or substantially all the assets of the Borrower or threatening its
existence or the forfeiture of any of its corporate rights under state law;
(c) annexed hereto as Exhibit A is a true and correct copy of
the Bylaws of the Borrower as in effect on -----------------,--------
and at all times thereafter through the date hereof;
(d) annexed hereto as Exhibit B is a true and correct copy of
certain resolutions duly adopted by the Board of Directors of the
Borrower at a meeting of said Board of Directors duly called and held
on --------------, ------, which resolutions are the only
resolutions adopted by the Board of Directors of the Borrower or any
committee thereof relating to the Credit Agreement and the other Loan
Documents to which the Borrower is a party and the transactions
contemplated therein and have not been revoked, amended, supplemented
or modified and are in full force and effect on the date hereof; and
(e) each of the persons named below is and has been at all
times since ------------------, -------- a duly elected and qualified
officer of the Borrower holding the respective office set forth
opposite his or her name and the signature set forth opposite of each
such person is his or her genuine signature:
Name Title Specimen Signature
---- ----- ------------------
▇▇▇ ▇. ▇▇▇▇▇▇ Executive Vice President /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
And Secretary ------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Senior Vice President, /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Finance and Operations -------------------
IN WITNESS WHEREOF, I have hereunto signed my name as of this 28th day
of June, 2002.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Secretary