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Exhibit 4.01
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CREDIT AGREEMENT
by and among
UNICAPITAL CORPORATION,
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
June 10, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions..............................................................2
1.2. Rules of Interpretation.................................................32
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.........................................................34
2.2. Payment of Interest.....................................................36
2.3. Payment of Principal....................................................36
2.4. Manner of Payment.......................................................38
2.5. Notes...................................................................38
2.6. Pro Rata Payments.......................................................38
2.7. Reductions..............................................................38
2.8. Conversions and Elections of Subsequent Interest Periods................39
2.9. Increase and Decrease in Amounts........................................40
2.10. Unused Fee..............................................................40
2.11. Deficiency Advances; Failure to Purchase Participations.................40
2.12. Use of Proceeds.........................................................41
2.13. Swing Line..............................................................41
ARTICLE III
Letters of Credit
3.1. Letters of Credit.......................................................43
3.2. Reimbursement...........................................................43
3.3. Letter of Credit Facility Fees..........................................46
3.4. Administrative Fees.....................................................47
ARTICLE IV
Security
4.1. Security................................................................48
4.2. Stock and Equity Interest Pledge........................................48
4.3. Guaranty................................................................48
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4.4. Security Interests......................................................48
4.5. Pledge and Subordination of Intercompany Notes..........................49
4.6. Intellectual Property Security Agreement................................49
4.7. Further Assurances......................................................49
4.8. Information Regarding Collateral........................................49
4.9. Termination in Connection with Permitted Sales and Securitizations......50
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.......................................51
5.2. Limitation on Types of Loans............................................52
5.3. Illegality..............................................................52
5.4. Treatment of Affected Loans.............................................53
5.5. Compensation............................................................53
5.6. Taxes...................................................................54
5.7. Syndication Costs.......................................................55
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance...........................................56
6.2. Conditions of Revolving Loans and Letter of Credit......................58
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority..............................................60
7.2. Loan Documents..........................................................60
7.3. Solvency................................................................61
7.4. Subsidiaries and Stockholders...........................................61
7.5. Ownership Interests.....................................................61
7.6. Financial Condition.....................................................61
7.7. Title to Properties.....................................................62
7.8. Taxes...................................................................62
7.9. Other Agreements........................................................62
7.10. Litigation..............................................................63
7.11. Margin Stock............................................................63
7.12. Investment Company......................................................63
7.13. Patents, Etc............................................................63
7.14. No Untrue Statement.....................................................63
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7.15. No Consents, Etc........................................................64
7.16. Employee Benefit Plans..................................................64
7.17. No Default..............................................................65
7.18. Environmental Laws......................................................65
7.19. Employment Matters......................................................65
7.20. RICO....................................................................66
7.21. Year 2000 Compliance....................................................66
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc..................................................67
8.2. Maintain Properties.....................................................68
8.3. Existence, Qualification, Etc...........................................69
8.4. Regulations and Taxes...................................................69
8.5. Insurance...............................................................69
8.6. True Books..............................................................69
8.7. Right of Inspection.....................................................69
8.8. Observe all Laws........................................................69
8.9. Governmental Licenses...................................................70
8.10. Covenants Extending to Other Persons....................................70
8.11. Officer's Knowledge of Default..........................................70
8.12. Suits or Other Proceedings..............................................70
8.13. Notice of Environmental Complaint or Condition..........................70
8.14. Environmental Compliance................................................70
8.15. Environmental Indemnification...........................................71
8.16. Further Assurances......................................................71
8.17. Employee Benefit Plans..................................................71
8.18. Continued Operations....................................................72
8.19. New Subsidiaries........................................................72
8.20. Year 2000 Compliance ..................................................74
8.21. Lease Receivables ....................................................74
8.22. Repayment of Loans and Investments......................................75
ARTICLE IX
Negative Covenants
9.1. Financial Covenants.....................................................76
9.2. Acquisitions............................................................76
9.3. Liens...................................................................77
9.4. Indebtedness............................................................78
9.5. Transfer of Assets......................................................78
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9.6. Investments.............................................................79
9.7. Merger or Consolidation.................................................80
9.8. Restricted Payments.....................................................80
9.9. Transactions with Affiliates............................................80
9.10. Compliance with ERISA...................................................80
9.11. Fiscal Year.............................................................81
9.12. Dissolution, etc........................................................81
9.13. Limitations on Sales and Leasebacks.....................................81
9.14. Change in Control.......................................................82
9.15. Rate Hedging Obligations................................................82
9.16. Negative Pledge Clauses.................................................82
9.17. Compensation; Reimbursement of Expenses; Earnouts.......................82
9.18. Prepayments, Etc. of Indebtedness.......................................82
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default.......................................................83
10.2. Agent to Act............................................................86
10.3. Cumulative Rights.......................................................86
10.4. No Waiver...............................................................86
10.5. Allocation of Proceeds..................................................86
ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities.....................................88
11.2. Reliance by Agent.......................................................88
11.3. Defaults................................................................89
11.4. Rights as Lender........................................................89
11.5. Indemnification.........................................................89
11.6. Non-Reliance on Agent and Other Lenders.................................90
11.7. Resignation of Agent....................................................90
11.8. Sharing of Payments, etc................................................90
11.9. Fees....................................................................91
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations..........................................92
12.2. Notices.................................................................93
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12.3. Right of Set-off; Adjustments...........................................95
12.4. Survival................................................................95
12.5. Expenses................................................................96
12.6. Amendments and Waivers..................................................96
12.7. Counterparts............................................................96
12.8. Termination.............................................................97
12.9. Indemnification; Limitation of Liability................................97
12.10. Severability............................................................98
12.11. Entire Agreement........................................................98
12.12. Agreement Controls......................................................98
12.13. Usury Savings Clause....................................................98
12.14. GOVERNING LAW; WAIVER OF JURY TRIAL.....................................99
12.15. Payments...............................................................100
12.16. Confidentiality........................................................100
12.17. Intercreditor Agreement................................................101
EXHIBIT A Applicable Commitment Percentages........................A-1
EXHIBIT B Form of Assignment and Acceptance........................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative...........................................C-1
EXHIBIT D-1 Form of Borrowing Notice...............................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.............D-2-1
EXHIBIT E Form of Interest Rate Selection Notice...................E-1
EXHIBIT F-1 Form of Revolving Note.................................F-1-1
EXHIBIT F-2 Form of Swing Line Note................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel....................G-1
EXHIBIT H Compliance Certificate...................................H-1
EXHIBIT I Form of Guaranty Agreement...............................I-1
EXHIBIT J Form of Security Agreement...............................J-1
EXHIBIT K Form of Intercompany Note Pledge Agreement...............K-1
EXHIBIT L Form of Intercompany Note Subordination Agreement........L-1
EXHIBIT M Form of Pledge Agreement.................................M-1
EXHIBIT N Form of Intellectual Property Security Agreement.........N-1
EXHIBIT O Form of Asset Ceiling Certificate........................O-1
EXHIBIT P Form of LC Account Agreement.............................P-1
Schedule 4.8 Information Regarding Collateral.........................S-1
Schedule 7.4 Subsidiaries and Investments in Other Persons............S-2
Schedule 7.7 Liens....................................................S-3
Schedule 7.8 Tax Matters..............................................S-4
Schedule 7.10 Litigation...............................................S-5
Schedule 7.18 Environmental Matters....................................S-6
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 10, 1998 (the "Agreement"),
is made by and among UNICAPITAL CORPORATION, a Delaware corporation having its
principal place of business in Miami, Florida (the "Borrower"), NATIONSBANK,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, in its capacity as a Lender
("NationsBank"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to Section 12.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States, in its capacity as agent for the
Lenders (in such capacity, and together with any successor agent appointed in
accordance with the terms of Section 11.7, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available
to the Borrower a revolving credit facility of up to $300,000,000, the proceeds
of which are to be used for general corporate purposes including permitted
acquisitions and working capital as set forth in Section 2.12 hereof and which
shall include a letter of credit facility of up to $50,000,000 for the issuance
of standby and commercial letters of credit and a swing line sublimit of up to
$15,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit and
letter of credit facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby
agree as follows:
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ARTICLE I
Definitions and Terms
1.1. Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Acquisition" means the acquisition of (i) a
controlling equity interest in another Person (including the
purchase of an option, warrant or convertible or similar type
security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of
such equity interest or upon exercise of an option or warrant for,
or conversion of securities into, such equity interest, or (ii)
assets of another Person which constitute all or substantially all
of the assets of such Person or of a line or lines of business
conducted by such Person.
"Adjusted Consolidated EBITDA" means, with respect to
the Borrower and its Subsidiaries for any Applicable Period ending
on the date of computation thereof, the sum of, without
duplication, (i) Consolidated Net Income, adjusted to exclude
non-cash gains on sales of leases of equipment and of equipment,
and the non-cash portion of any Residual Realization, (ii) Adjusted
Consolidated Interest Expense, (iii) taxes on income, (iv)
amortization of intangible assets, (v) depreciation on assets not
subject to operating leases, and (vi) the amount of any credit loss
chargeable to Consolidated Net Income but not actually incurred
during the Applicable Period, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis;
provided, however, that with respect to a Permitted Acquisition
that is accounted for as a "purchase," for the four Four-Quarter
Periods ending next following the date of such Permitted
Acquisition, Adjusted Consolidated EBITDA shall include the results
of operations of the Person or assets so acquired, which amounts
shall be determined on a historical pro forma basis as if such
Permitted Acquisition had been consummated as a "pooling of
interests."
"Adjusted Consolidated Fixed Charge Ratio" means,
with respect to the Borrower and its Subsidiaries for any
Applicable Period ending on the date of computation thereof, the
ratio of (i) Adjusted Consolidated EBITDA plus Consolidated Lease
Payments for such period less (without duplication) Capital
Expenditures for such period less cash taxes, to (ii) Adjusted
Consolidated Fixed Charges for such period.
"Adjusted Consolidated Fixed Charges" means, with
respect to Borrower and its Subsidiaries for any Applicable Period
ending on the date of computation thereof, the sum of, without
duplication, (i) Adjusted Consolidated Interest Expense, (ii)
required principal payments on Recourse Indebtedness, (iii)
Consolidated Lease Payments for such period and (iv) the cash
portion of any earnouts paid during such period, all determined on
a consolidated basis in accordance with GAAP applied on a
Consistent Basis; provided, however, that with respect to a
Permitted Acquisition that is accounted for as a "purchase," for
the four Four-Quarter Periods ending next following the date of
such Permitted Acquisition, Adjusted Consolidated Fixed Charges
shall include the results of
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operations of the Person or assets so acquired, which amounts shall
be determined on a historical pro forma basis as if such Permitted
Acquisition had been consummated as a "pooling of interests."
"Adjusted Consolidated Indebtedness" means, with
respect to the Borrower and its Subsidiaries for any fiscal period
ending on the date of computation thereof, Consolidated
Indebtedness for such period, adjusted to exclude all Non-Recourse
Indebtedness.
"Adjusted Consolidated Interest Expense" means, with
respect to any period of computation thereof, the gross interest
expense of the Borrower and its Subsidiaries with respect to
Recourse Indebtedness, including without limitation (i) the current
amortized portion of debt discounts to the extent included in gross
interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable
in connection with the incurrence of Recourse Indebtedness to the
extent included in gross interest expense and (iii) the portion of
any payments made in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Adjusted Consolidated Net Worth" means, with respect
to the Borrower and its Subsidiaries on the date of computation
thereof, Consolidated Net Worth less the then-current net book
value of all assets acquired or created after the Closing Date
which would be treated as intangible assets, all as determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Advance" means a borrowing under the Revolving
Credit Facility consisting of a Base Rate Loan or a Eurodollar Rate
Loan.
"Aircraft Facility" means the $300,000,000 revolving
credit facility made pursuant to the Aircraft Facility Credit
Agreement.
"Aircraft Facility Credit Agreement" means that
certain Aircraft Facility Credit Agreement of even date herewith by
and among NationsBank, as Agent and as Lender, each of the Lenders
and certain Special Purpose Subsidiaries.
"Aircraft Special Purpose Subsidiary" means any
Special Purpose Subsidiary which is at the time of determination a
borrower under the Aircraft Facility Credit Agreement.
"Aircraft Special Purpose Subsidiary Owner " means
any Person that owns an equity or beneficial interest in any
Aircraft Special Purpose Subsidiary.
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"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by,
or is under common control with the Borrower; or (ii) which
beneficially owns or holds 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of the Borrower;
or 10% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 10% or more of the
equity interest) of which is beneficially owned or held by the
Borrower; provided, however, at the time the Borrower registers any
security issued by it pursuant to the Securities Act of 1933, as
amended, the figure "10%" used in this definition shall
automatically change to "5%" without further action. The term
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting stock, by
contract or otherwise.
"Applicable Commitment Percentage" means, with
respect to each Lender at any time, a fraction, the numerator of
which shall be such Lender's Revolving Credit Commitment and the
denominator of which shall be the Total Revolving Credit
Commitment, which Applicable Commitment Percentage for each Lender
as of the Closing Date is as set forth in Exhibit A; provided that
the Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such
Lender effected in accordance with Section 12.1.
"Applicable Lending Office" means, for each Lender
and for each Type of Loan, the "Lending Office" of such Lender (or
of an affiliate of such Lender) designated for such Type of Loan on
the signature pages hereof or such other office of such Lender (or
an affiliate of such Lender) as such Lender may from time to time
specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans
of such Type are to be made and maintained.
"Applicable Margin" means that percent per annum set
forth below, which shall be based upon the Consolidated Leverage
Ratio for the Applicable Period most recently ended as specified
below:
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Applicable
Margin
------
Consolidated
Leverage Base Eurodollar
Ratio Rate Rate
------------ ---- ----------
Less than or equal to
1.00 to 1.00 .50% 1.50%
Less than or equal to
2.00 to 1.00 and
greater than 1.00 to 1.00 1.00% 2.00%
Greater than 2.00 to 1.00 1.50% 2.50%
(subject to the limitation
set forth in Section 9.1(b))
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The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 8.1(a)(ii) and Section
8.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the first Business Day
following the date such certificate is received until the first
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur (each, a
"Compliance Date"); provided however, if the Borrower shall fail to
deliver any such certificate within the time period required by Section
8.1, then the Applicable Margin shall be 1.50% for Base Rate Loans and
2.50% for Eurodollar Rate Loans until the appropriate certificate is so
delivered. Notwithstanding the foregoing, however, from the Closing
Date to the second Compliance Date following the Closing Date, the
Applicable Margin shall be no less than 1.00% for Base Rate Loans and
2.00% for Eurodollar Rate Loans.
"Applicable Period" means (i) for the fiscal quarter of the
Borrower and its Subsidiaries ending June 30, 1999 and each fiscal
quarter of the Borrower and its Subsidiaries thereafter, a Four-Quarter
Period, and (ii) for the fiscal quarters of the Borrower and its
Subsidiaries ending September 30, 1998, December 31, 1998, and March
31, 1999 the one, two and three fiscal quarter periods ending on such
dates. For purposes of determining the Consolidated Leverage Ratio and
the Adjusted Consolidated Fixed Charge Ratio for the one, two or three
fiscal quarter periods of the Borrower and its Subsidiaries ending
September 30, 1998, December 31, 1998 and March 31, 1999, Adjusted
Consolidated EBITDA and Adjusted Consolidated Fixed Charges shall be
determined by multiplying the Adjusted Consolidated EBITDA and Adjusted
Consolidated Fixed Charges (other than required principal payments) for
such periods by four, two and four-thirds, respectively. Commencing
with the fiscal quarter ending June 30, 1999 and thereafter, such
ratios shall be calculated for a Four-Quarter Period.
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"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Applicable Period most recently ended as specified below:
Consolidated Applicable
Leverage Unused
Ratio Fee
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Less than or equal to 1.00 to 1.00 .375%
Less than or equal to
2.00 to 1.00 and
greater than 1.00 to 1.00 .450%
Greater than 2.00 to 1.00 .500%
(subject to Section 9.1(b))
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The Applicable Unused Fee shall be established at each Determination
Date. Any change in the Applicable Unused Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to Section
8.1(a)(ii) and Section 8.1(b)(ii), subject to review and approval of
such computations by the Agent and shall be effective commencing on the
first Business Day following the date such certificate is received
until the first Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; provided however, if the Borrower shall fail to
deliver any such certificate within the time period required by Section
8.1, then the Applicable Unused Fee shall be .500% until the
appropriate certificate is so delivered. Notwithstanding the foregoing,
however, from the Closing Date to the second Compliance Date following
the Closing Date, the Applicable Unused Fee shall be no less than
.450%.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Asset Ceiling" means, at any date of determination, 90% of
the book value of Unencumbered Assets plus $15,000,000, in each case
determined pursuant to the most recent certificate of the Borrower
prepared in accordance with Section 8.1(e) hereof.
"Asset Ceiling Certificate" means the certificate delivered by
the Borrower pursuant to Section 8.1(e) hereof, in the form of
Exhibit O.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 9.5
hereof, of (a) any of the assets, excluding cash and cash equivalents,
of the Borrower or its Subsidiaries, and (b) any of the capital
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stock, or securities or investments exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder to receive
any of the capital stock, of any Subsidiary (other than a disposition
to a Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.1.
"Authorized Representative" means any of the President or any
Vice President of the Borrower or, with respect to financial matters,
the chief financial officer or Treasurer of the Borrower, or any other
Person expressly designated by the Board of Directors of the Borrower
(or the appropriate committee thereof) as an Authorized Representative
of the Borrower, as set forth from time to time in a certificate in the
form of Exhibit C.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay NationsBank in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3751028367 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of Exhibits D-1 and D-2,
respectively.
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York and North Carolina are authorized or obligated by
law, executive order or governmental decree to be closed and, (ii) with
respect to any Eurodollar Rate Loan, any day which is a Business Day,
as described above, and on which the relevant international financial
markets are open for the transaction of business contemplated by this
Agreement in London, England, New York, New York and Charlotte, North
Carolina.
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"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 8.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in Section 8.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than those
Persons set forth on Schedule 1.1 who own on the Closing Date
more than 20% of the Voting Stock either (A) becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act ), directly or indirectly, of Voting Stock of the Borrower
(or securities convertible into or exchangeable for such
Voting Stock) representing 20% or more of the combined voting
power of all Voting Stock of the Borrower (on a fully diluted
basis) or (B) otherwise has the ability, directly or
indirectly, to elect a majority of the board of directors of
the Borrower;
(ii) during any period of up to 12 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 12-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower.
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"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements referred to in Section 7.6(a).
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis.
"Consolidated Lease Payments" means the gross amount of all
lease or rental payments, whether or not characterized as rent, of the
Borrower and its Subsidiaries, excluding payments in respect of Capital
Leases constituting Indebtedness, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) the sum of (without duplication)
Adjusted Consolidated Indebtedness (determined as at such date) to (ii)
Adjusted Consolidated EBITDA (for the Applicable Period ending on (or
most recently ended prior to) such date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than compliance with Section 9.1(a) hereof) as income:
(i) net gains on the sale, conversion or other disposition of capital
assets (for purposes of this clause (i), capital assets shall not
include sales of leases or portfolios of leases, related equipment,
aircraft and engines, and other assets purchased and sold in the
ordinary course of business), (ii) net gains on the acquisition,
retirement, sale or other disposition of capital stock and other
securities of the Borrower or its Subsidiaries, (iii) net gains on the
collection of proceeds of life insurance policies, (iv) any write-up of
any asset, and (v) any other net gain or credit of an extraordinary
nature as determined in accordance with GAAP applied on a Consistent
Basis; provided, however, that for purposes of determining compliance
with the
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provisions of Section 9.1(a) hereof, there shall be disregarded any
increase in Consolidated Net Income upon giving effect to any
Acquisition which results from the treatment of such Acquisition as a
"pooling of interests" although such Acquisition was a "purchase"
transaction for GAAP purposes.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, the sum of the following in respect
of the Borrower and its Subsidiaries (determined on a consolidated
basis and excluding any upward adjustment after the Closing Date due to
revaluation of assets): (i) the amount of issued and outstanding share
capital, plus (ii) the amount of additional paid-in capital and
retained earnings (or, in the case of a deficit, minus the amount of
such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment), minus (iv) the amount of any treasury
stock, all as determined in accordance with GAAP applied on a
Consistent Basis.
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied on
a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, Letters of Credit and any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including
obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof.
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"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.8 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.8 or Article III of one Type of Loan
into another Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
closing price of the Borrower's capital stock as quoted by the New York
Stock Exchange for the ten trading days ending on and including the
third trading day prior to the closing of such Acquisition, and (II)
with respect to shares that are not freely tradeable, as determined by
a committee composed of the disinterested members of the Board of
Directors of the Borrower and, if requested by the Agent, determined to
be a reasonable valuation by the independent public accountants
referred to in Section 8.1(a), (B) the capital stock of any Subsidiary
shall be valued as determined by a committee composed of the
disinterested members of the Board of Directors of such Subsidiary and,
if requested by the Agent, determined to be a reasonable valuation by
the independent public accountants referred to in Section 8.1(a), and
(C) with respect to any Acquisition accomplished pursuant to the
exercise of options or warrants or the conversion of securities, the
Cost of Acquisition shall include both the cost of acquiring such
option, warrant or convertible security as well as the cost of exercise
or conversion.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
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"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
and Reimbursement Obligations, at a rate of interest per annum which
shall be two percent (2%) above the Base Rate and (iii) in any case,
the maximum rate permitted by applicable law, if lower.
"Defaulted Receivable" means, a lease receivable arising under
any Equipment Lease: (i) as to which any payment remains unpaid for 180
consecutive days or more from the original due date for such lease
receivable; (ii) as to which an Event of Bankruptcy has occurred and is
continuing with respect to the obligor thereof; (iii) which has been
identified by any of the parties to either the Lease Facility Credit
Agreement or the Transfer and Administration Agreement as
uncollectible; or (iv) which, consistent with the credit and collection
policy of the holder thereof, should be written off as uncollectible.
"Determination Date" has the meaning set forth in the
definition of Applicable Margin.
"Direct Foreign Subsidiary" means any Foreign Subsidiary that
is a direct Subsidiary of the Borrower or any Domestic Subsidiary.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means a Subsidiary which is organized
under the laws of one of the states or territories comprising the
United States of America.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 12.1, the Borrower,
such approval not to be unreasonably withheld or delayed by the
Borrower and such approval to be deemed given by the Borrower within
five Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, however,
that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
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(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A-"
or better by S&P or "A-3" or better by ▇▇▇▇▇'▇;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A-" or better by S&P or "A-3" or better by
▇▇▇▇▇'▇; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates or is assumed
by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of the Borrower or any current or former ERISA Affiliate.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"Equipment Lease" means any lease, installment sale or secured
financing of equipment or other personal property by the Borrower or
any Subsidiary, as lessor, seller or lender, to any Person, whether
such lease, sale or financing is originated by the Borrower or any
Subsidiary, or acquired by the Borrower or any Subsidiary.
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"Equity Offering" means a public or private offering of equity
securities (including, without limitation, any security or investment
exchangeable, exercisable or convertible for or into, or otherwise
entitling the holder to receive, equity securities) of the Borrower or
any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
---------------------------
Rate 1- Reserve Requirement Margin
"Event of Bankruptcy" means, with respect to any Person: (i)
that such Person (a) shall generally not pay its debts as such debts
become due or (b) shall admit in writing its inability to pay its debts
generally or (c) shall make a general assignment for the benefit of
creditors; (ii) any proceeding shall be instituted by or against such
Person (and, if instituted against such Person, shall not have been
dismissed within 60 days of its being instituted) seeking to adjudicate
it as bankruptcy or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee or
other similar official for it or any substantial part of its property;
or (iii) if such Person is a corporation, such Person shall take any
corporate action to authorize any of the actions set forth in clauses
(i) or (ii).
"Event of Default" means any of the occurrences set forth as
such in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Excluded Property" means, collectively, any property of the
Borrower or its Subsidiaries identified as Excluded Property in any
Security Instrument.
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"Excluded Residual Interest" means the Residual Interest in
any Equipment or Equipment Lease which is (i) owned by a Special
Purpose Subsidiary while participating in the Aircraft Facility, or
(ii) an asset securing any Indebtedness under this Agreement.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for such
issued and undrawn Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of Section
10.1(B), (b) all Swap Agreements that include any Lender shall have
been terminated, expired or cash collateralized (unless such Lender
shall otherwise consent), (c) all Revolving Credit Commitments and
Letter of Credit Commitments shall have terminated or expired and (d)
the Borrower shall have fully, finally and irrevocably paid and
satisfied in full all Obligations (other than Obligations consisting of
continuing indemnities and other contingent Obligations of the Borrower
or any Guarantor that may be owing to the Lenders pursuant to the Loan
Documents and expressly survive termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on January 1 of each calendar
year and ending on December 31 of each calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction other than one of the states comprising the
United States of America, any territory thereof or the District of
Columbia.
"Founding Companies" means, collectively, American Capital
Resources, Inc.; Boulder Capital Group, Inc.; CLA Holdings, Inc.;
Cauff, ▇▇▇▇▇▇▇ Aviation, Inc.; Jacom Computer Services, Inc.; K.L.C.,
Inc.; Matrix Funding Corporation; MFA Acquisition Corp.; Municipal
Capital Markets Group, Inc.; The NSJ Group, Inc.; PFSC Acquisition
Corp.; PFSC
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Limited Acquisition Corp.; Portfolio Financial Servicing Company, L.P.;
Varilease Corporation; and The ▇▇▇▇▇▇ Asset Group, Inc.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Founding Companies, any
Subsidiary that is not a Special Purpose Subsidiary (other than an
Aircraft Special Purpose Subsidiary or an Aircraft Special Purpose
Subsidiary Owner) and all Aircraft Special Purpose Subsidiaries and
Aircraft Special Purpose Subsidiary Owners.
"Guaranty" means each Guaranty Agreement between one or more
Guarantors and the Agent for the benefit of the Lenders, delivered as
of the Closing Date and otherwise pursuant to Section 8.19, as the same
may be amended, modified or supplemented.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations (but excluding for purposes of determining
compliance with Section 9.1 hereof, Obligations of the Borrower arising
under the Aircraft
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Facility Credit Agreement) and any other item which in accordance with
GAAP is required to be classified as a liability on a balance sheet;
but excluding all accounts payable in the ordinary course of business
so long as payment therefor is due within one year; provided that in no
event shall the term Indebtedness include surplus and retained
earnings, lease obligations (other than pursuant to Capital Leases),
reserves for deferred income taxes and investment credits, other
deferred credits or reserves or deferred compensation obligations.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed included on such Person's balance sheet in accordance with
GAAP, including without limitation all of that portion of obligations
with respect to Capital Leases which in accordance with GAAP is
required to be classified as a liability on a balance sheet and the
deferred purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written obligation for the
payment of money (including conditional sales or similar title
retention agreements), other than trade payables incurred in the
ordinary course of business.
"Intellectual Property Assignments" means those certain
Assignments of Patents, Trademarks, Copyrights and Licenses in the form
attached as Exhibit A to Exhibit N hereto, to be filed upon
acceleration of the Obligations hereunder, as from time to time
amended, supplemented or restated.
"Intellectual Property Security Agreement" means collectively
(or individually as the context may indicate), (i) the Intellectual
Property Security Agreement dated as of the date hereof by the Loan
Parties to the Agent, and (ii) any additional Intellectual Property
Security Agreement delivered to the Agent pursuant to Section 8.19, as
hereafter modified, amended or supplemented from time to time.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, provided, however; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Intercompany Advance" means a loan or advance heretofore or
hereafter made by the Borrower or a Guarantor to the Borrower or a
Guarantor which is evidenced by an Intercompany Note in which the Agent
has a valid, duly perfected, first priority Lien under
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the Intercompany Note Pledge Agreement, and the repayment of which is
subordinated to the rights of the Agent and the Lenders under the Loan
Documents in accordance with the provisions set forth in the
Intercompany Notes or in the Intercompany Note Subordination Agreement.
"Intercompany Notes" means, collectively, (i) the promissory
notes heretofore issued and described on Schedule A to the Intercompany
Note Pledge Agreement, (ii) promissory notes hereafter issued and
outstanding from time to time evidencing the Intercompany Advances and
(iii) promissory notes hereafter issued and outstanding from time to
time in accordance with the requirements of Section 9.6(g), 9.6(h) or
9.6(j).
"Intercompany Note Holder" means, at any date, the Borrower
and any Guarantor who has extended any Intercompany Advance that
remains outstanding at such date.
"Intercompany Note Pledge Agreement" means, collectively (or
individually as the context may indicate) (i) that certain Intercompany
Note Pledge Agreement of even date herewith among the Borrower, certain
Subsidiaries and the Agent, substantially in the form of Exhibit K, and
(ii) any other Intercompany Note Pledge Agreement in the form of
Exhibit K delivered to the Agent pursuant to Section 8.19, pursuant to
which the Agent is granted a Lien in the Intercompany Notes held by
such Intercompany Note Holder, in each case as the same may be amended,
supplemented or restated from time to time.
"Intercompany Note Subordination Agreement"means the
Subordination Agreement dated as of the date hereof between the
Borrower, certain Subsidiaries of the Borrower and the Agent in the
form of Exhibit L, as hereafter modified, amended or supplemented from
time to time.
"Intercompany Note Subordination Supplement" means any
supplement to the Intercompany Note Subordination Agreement in the form
of Exhibit A to Exhibit L hereto, with appropriate revisions as to the
identity of the Subordinated Creditor, delivered to the Agent pursuant
to Section 8.19, Article IV or any other provision of this Agreement,
as modified, amended or supplemented from time to time.
"Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of June 10, 1998 among the Agent, for itself and on
behalf of the Lenders, and NationsBank as agent for itself and on
behalf of the "lenders" (as defined in the Aircraft Facility Credit
Agreement).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted and ending, at the Borrower's option, on the date one week
(to the extent reasonably available to each of the Lenders) or one,
two, three or six months thereafter as notified to the Agent by the
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; provided, that,
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(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the Eurodollar Rate Loan for which such Interest Period was to
be determined shall be deemed to be a Base Rate Loan as of the
first day thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(iii) any Interest Period (other than an Interest
Period of one week) which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month;
(iv) no Interest Period shall extend past the Stated
Termination Date; and
(v) there shall not be more than ten (10) Interest
Periods in effect on any day.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"IPSA Supplement" means any supplement to the Intellectual
Property Security Agreement in the form of Exhibit B to Exhibit N, with
appropriate revisions as to the identity of the grantor, as amended,
modified or supplemented from time to time.
"Issuing Bank" means NationsBank as issuer of Letters of
Credit under Article III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Issuing Bank, in the
form of Exhibit P, as amended, modified or supplemented from time to
time.
"Lease Facility Credit Agreement" means that certain Loan and
Security Agreement entered into or to be entered into by and among
NationsBank, as agent, each of the "Bank Investors" from time to time
party thereto, Kitty Hawk Funding Corporation and Portfolio Financial
Servicing Company, as "Master Servicer."
"Lease Receivable Financing Facility" means the lease
receivable financing facility made pursuant to the Lease Facility
Credit Agreement.
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26
"Lease Receivable Purchase Facility" means the lease
receivable purchase facility made pursuant to the Transfer and
Administration Agreement.
"Letter of Credit" means a standby or commercial letter of
credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any borrowing pursuant to an Advance
under the Revolving Credit Facility and includes Swing Line Loans, as
the context may require.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Guaranty, the LC Account Agreement, the Applications
and Agreements for Letter of Credit, and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor
of any Lender or the Agent in connection with the Loans made and
transactions contemplated under this Agreement, as the same may be
amended, supplemented or replaced from the time to time.
"Loan Parties" means the Borrower and each Guarantor.
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"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, prospects, operations or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of any of the Loan Parties to pay or perform
its respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"NationsBank" means NationsBank, National Association and its
successors.
"Net Proceeds" (a) from any Equity Offering means cash
payments received by the Borrower therefrom as and when received, net
of all legal, accounting, banking and underwriting fees and expenses,
commissions, discounts and other issuance expenses incurred in
connection therewith and all taxes required to be paid or accrued as a
consequence of such issuance; and (b) from any Asset Disposition means
cash payments received by the Borrower or a Subsidiary therefrom
(including any cash payments received pursuant to any note or other
debt security received in connection with any Asset Disposition) as and
when received, net of (i) all legal fees and expenses and other fees
and expenses paid to third parties and incurred in connection
therewith, (ii) all taxes required to be paid or accrued as a
consequence of such sale, (iii) all amounts applied to repayment of
Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed and (iv) all costs incurred to sell,
transfer or dispose of an asset at or about the time such asset is
sold, transferred or disposed of.
"NMS" means NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and its
successors.
"Non-Aircraft Special Purpose Subsidiary" means a Special
Purpose Subsidiary that is not an Aircraft Special Purpose Subsidiary
or an Aircraft Special Purpose Subsidiary Owner.
"Non-Recourse Indebtedness" means Indebtedness arising under
the Lease Receivable Purchase Facility and Indebtedness that is not
Recourse Indebtedness as to which recourse is limited to specific
assets which have been pledged to secure such Non-Recourse
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Indebtedness; provided that to the extent any Indebtedness is partially
Recourse Indebtedness (as set forth in the definition of "Recourse
Indebtedness"), this definition shall only include that portion of such
Indebtedness that is not Recourse Indebtedness.
"Notes" means, collectively, the promissory notes of the
Borrower evidencing Revolving Loans executed and delivered to the
Lenders substantially in the form of Exhibit F-1 and evidencing Swing
Line Loans executed and delivered to NationsBank substantially in the
form of Exhibit F-2.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender which arise under a Swap
Agreement unless otherwise agreed to by such Lender, and (iv) the
payment and performance of all other obligations, liabilities and
Indebtedness of the Borrower to the Lenders, the Agent or NMS
hereunder, under any one or more of the other Loan Documents or with
respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings, and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than NationsBank) and a Swing Line Loan,
the extension of credit represented by the participation of such Lender
hereunder in the liability of NationsBank in respect of a Swing Line
Loan made by NationsBank in accordance with the terms hereof.
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"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Permitted Acquisition" means an Acquisition where (i) the
Person to be (or whose assets are to be) acquired does not oppose such
Acquisition and the line or lines of business of the Person to be
acquired are substantially the same as one or more line or lines of
business conducted by the Borrower and its Subsidiaries, (ii) no
Default or Event of Default shall have occurred and be continuing
either immediately prior to or immediately after giving effect to such
Acquisition and the Borrower shall have furnished to the Agent (A) the
financial statements for the twelve (12) months ended as of the end of
the most recently completed Fiscal Year of the Person to be acquired
(or whose assets are to be acquired) and an interim financial statement
for such Person for the period since such fiscal year end, provided
such interim period shall cover, at a minimum, the period from the
prior fiscal year end through the month end no less than 60 days prior
to the signing of the letter of intent with such Person, and (B) a
certificate in the Form of Exhibit H prepared on a historical pro forma
basis giving effect to such Acquisition, which certificate shall
demonstrate that no Default or Event of Default would have existed as
of the most recently ended fiscal quarter of the Borrower for which
financial statements are required to be delivered pursuant to either
Section 8.1(a) or (b) had the Acquisition been completed by the end of
the such quarter, provided that to the extent the interim statement of
such Person is for a period of less than four fiscal quarters, Borrower
shall create a pro forma twelve month income statement for the Person
to be acquired by annualizing the results of operations of the Person
being acquired (or whose assets are to be acquired) for the period for
which interim financial statements are available, (iii) the Person
acquired shall be a wholly-owned Subsidiary, or be merged into the
Borrower or a wholly-owned Subsidiary, immediately upon consummation of
the Acquisition (or if assets are being acquired, the acquiror shall be
the Borrower or a wholly-owned Subsidiary), (iv) either (A) the Person
acquired shall become a Guarantor and shall satisfy all requirements of
a Guarantor under Section 8.19, or (B) the Person acquired shall be a
Qualified Special Purpose Subsidiary or Special Purpose Subsidiary that
is not an Aircraft Special Purpose Subsidiary and such Subsidiary shall
be a wholly-owned Subsidiary of a Person that shall satisfy all
requirements of a Guarantor under Section 8.19, and (v) either (A) the
cash portion of the Cost of Acquisition is equal to or less than 10% of
Consolidated Net Worth, or (B) the Cost of Acquisition is equal to or
less than 20% of Consolidated Net Worth;
"Permitted Liens" means collectively each of the Liens set
forth in Sections 9.3(a)-(h), inclusive.
"Permitted Receivables Sales Transaction" means the Lease
Receivable Purchase Facility and other sales and assignments of
Equipment Leases and underlying equipment by
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the Borrower or any Subsidiary in the ordinary course of business to
the extent treated as sales in accordance with GAAP and which
transactions shall either (i) be on such terms and subject to such
terms and conditions as shall be reasonably acceptable to the Agent or
(ii) be at an advance rate greater than or equal to 85% of the net
present value of the portion of the Equipment Lease being sold or
assigned; provided, however, that to the extent any portion or
component of such transaction is treated as indebtedness in accordance
with GAAP and such indebtedness constitutes Non-Recourse Indebtedness,
such portion of the transaction shall be deemed to be a Permitted
Receivables Secutitization.
"Permitted Receivables Securitization" means the Lease
Receivable Finance Facility and other limited recourse sales, transfers
and assignments of Equipment Leases and underlying equipment by the
Borrower or any Subsidiary to one or more Special Purpose Subsidiaries
or other parties, the proceeds of which shall be made available to the
Borrower or such Subsidiary either (i) in such amounts and on such
terms and conditions as shall be reasonably acceptable to the Agent or
(ii) at an advance rate greater than or equal to 85% of the net present
value of the portion of the Equipment Lease being sold, assigned or
transferred.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Pledge Agreement dated as of
the date hereof substantially in the form of Exhibit M among the
Borrower, certain Subsidiaries of the Borrower and the Agent for the
benefit of the Agent and the Lenders, (ii) any additional Pledge
Agreement delivered to the Agent pursuant to Section 8.19, and (iii)
any Pledge Agreement Supplement delivered to the Agent, all as
hereafter amended, supplemented or replaced from time to time.
"Pledge Agreement Supplement" means a supplement to the Pledge
Agreement substantially in the form of Exhibit A to Exhibit M, with
appropriate revisions as to the identity of the Pledgor.
"Pledged Interests" shall have the meaning therefor provided
in the Pledge Agreement.
"Pledged Stock" has the meaning given to such term in the
Pledge Agreement.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and ▇▇▇▇▇'▇ and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest
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as shall be sufficient to pay in full all principal of, interest, and
premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public
accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services, or such
other office and address as the Agent may from time to time designate.
"Pro Forma Historical Statements" means (i) unaudited pro
forma (x) combined balance sheet and (y) combined statement of
operations of the Borrower and the Founding Companies, (ii) the balance
sheet of the Borrower at December 31, 1997, and (iii) financial
statements of the Founding Companies, all as set forth in the
Registration Statement.
"Qualified Special Purpose Subsidiary" means any Non-Aircraft
Special Purpose Subsidiary (i) that is a wholly-owned Subsidiary of a
Guarantor, all of which Guarantor's stock has been pledged to the
Agent, (ii) that has as its only assets aircraft and aircraft engines,
(iii) that has no Indebtedness other than Indebtedness incurred in
financing the acquisition of assets permitted in clause (ii) hereof,
(iv) that has purposes restricted by its Organizational Documents to
the ownership, operation and financing of the assets permitted in
clause (ii) hereof, and (v) all of the ownership interests of which
either (a) have been pledged to the Agent by the owner of such
interests to secure such owner's obligations under its Guaranty, or (b)
are not permitted to be pledged by the lender financing the acquisition
of the assets permitted in clause (ii) hereof.
"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Recourse Indebtedness" means Indebtedness of the Borrower or
a Subsidiary the source of payment of which is not wholly limited to
the proceeds realized by the holder of such Indebtedness from the sale
or disposition of the assets of the obligor of such Indebtedness
pledged to secure such Indebtedness, but for which the obligor may have
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recourse to the Borrower or a Guarantor; provided, however, that in the
case of Indebtedness for which the source of payment is partially
limited to the proceeds realized by the holder of such Indebtedness
from the sale or disposition of the assets of the obligor, this term
shall only include that portion of such Indebtedness that is not so
limited, and the remaining portion of such Indebtedness so limited
shall be "Non-Recourse Indebtedness" as defined above.
"Registration Statement" means the Borrower's Registration
Statement on Form S-1 Registration No. 333-46603, as filed with the
Securities and Exchange Commission on February 20, 1998, as amended,
including all documents incorporated therein by reference.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
Lender with any request or directive after the Closing Date regarding
capital adequacy, including those relating to "highly leveraged
transactions," whether or not having the force of law, and whether or
not failure to comply therewith would be unlawful and whether or not
published or proposed prior to the date hereof.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 3.2) for amounts theretofore
paid by the Issuing Bank pursuant to a drawing under such Letter of
Credit.
"Related Acquisitions" means the acquisition by the Borrower
of the Founding Companies in accordance with the terms of the Related
Acquisition Agreements, and further described in the Registration
Statement.
"Related Acquisition Agreements" means, collectively, those
merger agreements by and among the Borrower, the Founding Companies and
their stockholders and partners, together with all schedules, annexes
and exhibits thereto, as any of the same may be amended or
supplemented.
"Related Acquisition Transaction Documents" means the Related
Acquisition Agreements and each document, agreement, instrument,
opinion or certificate incorporated therein or delivered in connection
therewith, including in each case all annexes, schedules and exhibits
thereto, as any of the same may be amended or supplemented.
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"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations are rated
either "A" by S&P or "A-2" by ▇▇▇▇▇'▇, or whose commercial paper is
rated either "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇.
"Required Lenders" means, (i) as of any date on which there is
only one Lender, that Lender; and (ii) as of any date on which there is
more than one Lender, Lenders on such date having Credit Exposures (as
defined below) aggregating more than 66.67% of the aggregate Credit
Exposures of all Lenders on such date, but in no event fewer than two
Lenders. For purposes of the preceding sentence, the amount of the
"Credit Exposure" of each Lender shall be equal at all times (a) other
than following the occurrence and during the continuance of an Event of
Default, to its Revolving Credit Commitment, and (b) following the
occurrence and during the continuance of an Event of Default, to the
sum of (i) the amount of such Lender's Applicable Commitment Percentage
of Revolving Credit Outstandings plus (ii) the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings plus
(iii) the amount of such Lender's Applicable Commitment Percentage of
Swing Line Loans; provided that, for the purpose of this definition
only, (A) if any Lender shall have failed to fund its Applicable
Commitment Percentage of any Advance, the Revolving Credit Commitment,
as applicable, of such Lender shall be deemed reduced by the amount it
so failed to fund for so long as such failure shall continue and such
Lender's Credit Exposure attributable to such failure shall be deemed
held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure, (B) if
any Lender shall have failed to pay to the Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation, such
Lender's Credit Exposure attributable to such Letter of Credit
Outstandings shall be deemed to be held by Issuing Bank and (C) if any
Lender shall have failed to pay to NationsBank its Applicable
Commitment Percentage of any Swing Line Loan, such Lender's Credit
Exposure attributable to all Swing Line Outstandings shall be deemed to
be held by NationsBank for purposes of this definition.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Residual Interest" means, with respect to any Equipment or
Equipment Lease any interest, whether by way of a beneficial interest
in a trust, residual interest in leased equipment, a residual
certificate or otherwise.
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"Residual Realization" means, with respect to the disposition
of any Residual Interest, the net proceeds received by the Borrower or
any Subsidiary upon such disposition.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower or a Subsidiary) now or
hereafter outstanding, except a dividend payable solely in shares of a
class of stock to the holders of that class; (b) any redemption,
conversion, exchange, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding; (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares
of any class of stock of Borrower or any of its Subsidiaries now or
hereafter outstanding; and (d) any issuance and sale of capital stock
of any Subsidiary of the Borrower (or any option, warrant or right to
acquire such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Loans to the Borrower up
to an aggregate principal amount at any one time outstanding equal to
such Lender's Applicable Commitment Percentage of the Total Revolving
Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Revolving Loans to the Borrower by the
Lenders in the aggregate principal amount of the Total Revolving Credit
Commitment less all Letter of Credit Outstandings and Swing Line
Outstandings.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means the earlier of (i)
the Stated Termination Date or (ii) such date of termination of
Lenders' obligations pursuant to Section 10.1 upon the occurrence of an
Event of Default, or (iii) such date as the Borrower may voluntarily
and permanently terminate the Revolving Credit Facility by payment in
full of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article II.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇.
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Security Agreement dated as of the
date hereof by the Borrower to the Agent, and (ii) any additional
Security Agreement delivered to the Agent pursuant to Section 8.19, as
hereafter modified, amended or supplemented from time to time.
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"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement, the Intellectual Property Security
Agreement, the Intellectual Property Assignment, any IPSA Supplement,
the LC Account Agreement, the Intercompany Note Pledge Agreement, the
Intercompany Note Subordination Agreement, any Intercompany Note
Subordination Supplement, and all other agreements, instruments and
other documents, whether now existing or hereafter in effect, pursuant
to which the Borrower or any Subsidiary shall grant or convey to the
Agent or the Lenders a Lien in property as security for all or any
portion of the Obligations, as any of them may be amended, modified or
supplemented from time to time.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA
and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Special Purpose Subsidiary" means a Subsidiary of the
Borrower or another Subsidiary or a UniCapital Subsidiary Trust (as
defined in the Aircraft Facility Credit Agreement) established in order
to facilitate the financing or sale of specific assets owned by such
Subsidiary.
"Stated Termination Date" means June 10, 2001 or such later
date as the parties may agree pursuant to Section 2.13.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower and/or
by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower or a Subsidiary and any Person with respect to Indebtedness
evidenced by any or all of the Notes, on terms mutually acceptable to
Borrower and such Person, which agreements create Rate Hedging
Obligations.
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"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.13.
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 2.13.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Swing Line Refunding Loan" means any Revolving Loan made to
pay NationsBank in respect of Swing Line Outstandings.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Letter of Credit Commitment" means an amount not to
exceed $50,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $300,000,000, as reduced from time to time in accordance with
Section 2.7.
"Transfer and Administration Agreement" means that certain
Transfer and Administration Agreement entered into or to be entered
into by and among NationsBank, as agent, each of the "Bank Investors"
from time to time party thereto each of the "Transferors" from time to
time party thereto, Kitty Hawk Funding Corporation and Portfolio
Financial Servicing Company, as "Master Servicer".
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
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"Unencumbered Assets" means those tangible and intangible
assets (other than (i) goodwill, (ii) retained certificates, (iii)
property, plant and equipment not held for lease or sale or formerly
held for lease or sale and (iv) all Residual Interests) of the Borrower
and the Guarantors, including without limitation lease receivables,
notes receivables and equipment held for sale, that are not subject to
any Lien other than Liens created under the Security Instruments in
favor of the Agent and the Lenders; provided, however, with respect to
any Equipment Lease, (i) if any of the equipment, the related lease
agreement or any lease receivable thereunder is subject to a Lien other
than Liens created under the Security Interests in favor of the Agent
and the Lenders, or (ii) if the lease receivable arising under such
Equipment Lease is a Defaulted Receivable under either the Lease
Receivable Financing Facility or the Lease Receivable Purchase
Facility, then none of such related equipment, lease agreement or lease
receivable shall be an Unencumbered Asset.
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Working Capital Loan" means any Advance permitted under
Section 2.12 hereof, the proceeds of which are to be used for general
working capital needs of the Borrower or a Subsidiary.
"Working Capital Outstandings" means, as of any date of
determination, the aggregate principal amount of all Working Capital
Loans then outstanding.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly data-sensitive functions involving all dates on and
after January 1, 2000.
"Year 2000 Problem" means the risk that computer applications
used by the Borrower and any of its Subsidiaries (including those
affected by information received from its suppliers and vendors) may be
unable to recognize and perform properly data-sensitive functions
involving certain dates on and after January 1, 2000.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that
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the Uniform Commercial Code of another jurisdiction is controlling, in
which case such terms shall have the meaning given in the Uniform
Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) All dates and times of day specified herein shall refer to
such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrower under
the Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender, provided, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Agent has accelerated
the maturity of any of the Notes as a result of an Event of Default; provided
further, however, that immediately after giving effect to each such Advance, (x)
the amount of Revolving Credit Outstandings plus Letter of Credit Outstandings
plus Swing Line Outstandings shall not exceed the Total Revolving Credit
Commitment, (y) the amount of Working Capital Outstandings plus Letter of Credit
Outstandings plus the aggregate principal amount of Swing Line Loans outstanding
constituting Working Capital Loans shall not exceed the Asset Ceiling, and (z)
the amount of Swing Line Outstandings shall not exceed $15,000,000. Within such
limits, the Borrower may borrow, repay and reborrow under the Revolving Credit
Facility on a Business Day from the Closing Date until, but (as to borrowings
and reborrowings) not including, the Revolving Credit Termination Date;
provided, however, that (y) no Revolving Loan that is a Eurodollar Rate Loan
shall be made which has an Interest Period that extends beyond the Stated
Termination Date and (z) each Revolving Loan that is a Eurodollar Rate Loan may,
subject to the provisions of Section 2.7, be repaid only on the last day of the
Interest Period with respect thereto unless such payment is accompanied by the
additional payment, if any, required by Section 5.5.
(b) Amounts. Except as otherwise permitted by the Lenders from
time to time, (x) the amount of Revolving Credit Outstandings plus Letter of
Credit Outstandings plus Swing Line Outstandings shall not exceed at any time
the Total Revolving Credit Commitment, (y) the amount of Working Capital
Outstandings plus Letter of Credit Outstandings less the aggregate principal
amount of Swing Line Refunding Loans outstanding shall not exceed at any time
the Asset Ceiling, and (z) the amount of Swing Line Outstandings shall not
exceed $15,000,000. In the event there shall be at any time any such excess
under (x), (y) or (z) above outstanding, the Borrower shall immediately make
such payments and prepayments in such amounts as shall be necessary to comply
with the restrictions set forth in this Section 2.1(b). Each Loan hereunder,
other than Base Rate Refunding Loans, and each Conversion under Section 2.8,
shall be in an amount of at least $5,000,000, and, if greater than $5,000,000,
an integral multiple of $1,000,000.
(c) Advances. (i) An Authorized Representative shall give the
Agent (A) at least three (3) Business Days' irrevocable written notice by
telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Revolving Loan that is a Eurodollar Rate Loan (whether representing an
additional borrowing hereunder or the Conversion of a borrowing hereunder from
Base Rate Loans to
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Eurodollar Rate Loans) prior to 10:30 A.M., and (B) irrevocable written notice
by telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Loan (other than Base Rate Refunding Loans to the extent the same are
effected without notice pursuant to Section 2.1(c)(iv)) that is a Base Rate Loan
(whether representing an additional borrowing hereunder or the Conversion of
borrowing hereunder from Eurodollar Rate Loans to Base Rate Loans) prior to
10:30 A.M. on the day of such proposed Loan. Each such notice shall specify the
amount of the borrowing, the Type of Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, together with the amount of
each Lender's portion of an Advance requested thereunder, shall be provided by
the Agent to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such notice by 10:30
A.M.) not later than 1:00 P.M. on the same day as the Agent's receipt of such
notice.
(ii) Not later than 2:00 P.M. on the date specified for each borrowing
under this Section 2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Agent in the amount
of its pro rata share, determined according to such Lender's Applicable
Commitment Percentage of the Loan or Loans to be made on such day. Such wire
transfer shall be directed to the Agent at the Principal Office and shall be in
the form of Dollars constituting immediately available funds. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the proceeds thereof
to the Borrower's Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and reasonably acceptable to
the Agent.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the Loans in
accordance with Section 2.8. Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time, provided, however, there shall not be outstanding
at any one time Eurodollar Rate Loans having more than ten (10) different
Interest Periods. If the Agent does not receive a Borrowing Notice or an
Interest Rate Selection Notice giving notice of election of the duration of an
Interest Period or of Conversion of any Loan to or Continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Section 2.1(c) or 2.8, the
Borrower shall be deemed to have elected to Convert such Loan to (or Continue
such Loan as) a Base Rate Loan until the Borrower notifies the Agent in
accordance with Section 2.8.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank prior to the
Stated Termination Date, and the Borrower shall not immediately fully reimburse
the Issuing Bank in respect of such drawing, (A) provided that the conditions to
making a Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank by the
Agent without the requirement of notice to or from the Borrower from immediately
available funds which shall be advanced as a Base Rate Refunding Loan by each
Lender under the Revolving Credit Facility in an amount equal to such Lender's
Applicable Commitment Percentage of such Reimbursement Obligation, and (B) if
the conditions to making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the Agent (for the
benefit of the Issuing Bank) in immediately
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available funds the purchase from the Issuing Bank of their respective
Participations in the related Reimbursement Obligation based on their respective
Applicable Commitment Percentages of the Total Letter of Credit Commitment. If a
drawing is presented under any Letter of Credit in accordance with the terms
thereof and the Borrower shall not immediately reimburse the Issuing Bank in
respect thereof, then notice of such drawing or payment shall be provided
promptly by the Issuing Bank to the Agent and the Agent shall provide notice to
each Lender by telephone or telefacsimile transmission. If notice to the Lenders
of a drawing under any Letter of Credit is given by the Agent at or before 12:00
noon on any Business Day, each Lender shall, pursuant to the conditions
specified in this Section 2.1(c)(iv), either make a Base Rate Refunding Loan or
fund the purchase of its Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount to
the Agent for the account of the Issuing Bank at the Principal Office in Dollars
and in immediately available funds before 2:30 P.M. on the same Business Day. If
notice to the Lenders of a drawing under a Letter of Credit is given by the
Agent after 12:00 noon on any Business Day, each Lender shall, pursuant to the
conditions specified in this Section 2.1(c)(iv), either make a Base Rate
Refunding Loan or fund the purchase of its Participation in the amount of such
Lender's Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before 12:00 noon
on the next following Business Day. Any such Base Rate Refunding Loan shall be
advanced as, and shall Continue as, a Base Rate Loan unless and until the
Borrower Converts such Base Rate Loan in accordance with the terms of Section
2.8.
2.2. Payment of Interest. (a) The Borrower shall pay interest to the
Agent for the account of each Lender on the outstanding and unpaid principal
amount of each Loan made by such Lender for the period commencing on the date of
such Loan until such Loan shall be due at the then applicable Base Rate for Base
Rate Loans or applicable Eurodollar Rate for Eurodollar Rate Loans, as
designated by the Authorized Representative pursuant to Section 2.1; provided,
however, that if any Event of Default shall occur and be continuing, all amounts
outstanding hereunder shall bear interest thereafter at the Default Rate.
(b) Interest on each Loan shall be computed on the basis of a
year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each Revolving Loan shall be paid (i) quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
June 30, 1998 for each Base Rate Loan, (ii) on the last day of the applicable
Interest Period for each Eurodollar Rate Loan and, if such Interest Period
extends for more than three (3) months, at intervals of three (3) months after
the first day of such Interest Period, and (iii) upon payment in full of the
principal amount of such Loan.
2.3. (a) Payment of Principal. The principal amount of each Loan shall
be due and payable to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date, or earlier as specifically provided herein.
The principal amount of any Base Rate Loan may be prepaid in whole or in part at
any time. The principal amount of any Eurodollar Rate Loan may be prepaid only
at the end of the applicable Interest Period unless the Borrower shall pay to
the Agent for the account of the Lenders the additional amount, if any, required
under Section 5.5. All prepayments of Loans made by the Borrower shall be in the
amount of $5,000,000 or such greater amount which is an integral multiple of
$1,000,000, or the amount equal to all Revolving Credit
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Outstandings, or such other amount as necessary to comply with Section 2.1(b),
Section 2.3(b) or Section 2.8.
(b) Mandatory Prepayments. The Borrower shall make the
following required prepayments, each such payment to be made to the Agent for
the benefit of the Lenders within the time period specified below:
(i) Asset Dispositions. The Borrower shall make a
prepayment of Working Capital Loans from the Net Proceeds of
any Asset Disposition, other than an Asset Disposition by a
Non-Aircraft Special Purpose Subsidiary, in an amount equal to
one hundred percent (100%) of such Net Proceeds. Each such
prepayment shall be made within five (5) Business Days of
receipt of such Net Proceeds and upon not less than three (3)
Business Days written notice to the Agent, which notice shall
include a certificate of an Authorized Representative setting
forth in reasonable detail the calculations utilized in
computing the amount of the Net Proceeds.
(ii) Mandatory Prepayments Under the Aircraft
Facility Credit Agreement. The Borrower shall make a
prepayment in an amount equal to one hundred percent (100%) of
the amount of any mandatory prepayment required to be paid to
the Borrower pursuant to Section 2.3(b) of the Aircraft
Facility Credit Agreement. Each such prepayment shall be made
contemporaneously with the prepayment pursuant to Section
2.3(b) of the Aircraft Facility Credit Agreement.
(iii) Intercompany Notes. The Borrower shall make a
prepayment of Working Capital Loans equal to 100% of any
principal payment made by any Person of any obligation arising
under or evidenced by any Intercompany Note, if such
obligation was funded by a Loan hereunder.
(iv) Intercompany Loans and Advances. The Borrower
shall make a prepayment of Working Capital Loans equal to 100%
of the amount of any repayment of outstanding loans or
advances made by a Special Purpose Subsidiary pursuant to
Section 8.22 hereof, if such outstanding loan or advance was
funded by a Loan hereunder.
All mandatory prepayments pursuant to this Section 2.3(b) shall be
applied first to repay Base Rate Loans and then to Eurodollar Rate Loans. Any
prepayment of an Eurodollar Rate Loan pursuant to this Section 2.3(b) other than
on the last day of an Interest Period shall be accompanied by the additional
payment, if any, required by Section 5.5 hereof.
2.4. Manner of Payment. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the Loans, shall be made to the Agent at
the Principal Office, for the account of each Lender, in Dollars and in
immediately available funds without setoff, deduction or counterclaim before
12:30 P.M. on the date such payment is due. Upon request of the Authorized
Representative, the Agent
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may, but shall not be obligated to, debit the amount of any such payment which
is not made by such time to any ordinary deposit account, if any, of the
Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the
Borrower hereunder that is not made both in Dollars and in immediately available
funds and prior to 12:30 P.M. to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Agent until the time such funds become
available funds. Any non-conforming payment may constitute or become a Default
or Event of Default. Interest shall continue to accrue on any principal as to
which a non-conforming payment is made until the later of (x) the date such
funds become available funds or (y) the next Business Day at the Default Rate
from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise under
clause (ii) of the definition of "Interest Period"; provided that interest shall
continue to accrue during the period of any such extension and provided further,
that in no event shall any such due date be extended beyond the Revolving Credit
Termination Date.
2.5. Notes. Revolving Loans made by each Lender shall be evidenced by
the Note payable to the order of such Lender in the respective amount of its
Applicable Commitment Percentage of the Revolving Credit Commitment, which Note
shall be dated the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the Borrower.
2.6. Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Loans and the fees
described in Section 2.10 shall be made to the Agent for the account of the
Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrower for the account of each of the Lenders on
account of principal, interest and fees, shall be made without diminution,
setoff, recoupment or counterclaim, and (c) the Agent will promptly distribute
to the Lenders in immediately available funds payments received in fully
collected, immediately available funds from the Borrower.
2.7. Reductions. (a) The Borrower, by notice from an Authorized
Representative, shall have the right from time to time, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt, to
reduce the Total Revolving Credit Commitment. The Agent shall give each Lender,
within one (1) Business Day of receipt of such notice, telefacsimile notice, or
telephonic notice (confirmed in writing), of such reduction. Each such reduction
shall be in the aggregate amount of $5,000,000 or such greater amount which is
in an integral multiple of $1,000,000, or the entire remaining Total Revolving
Credit Commitment, and shall permanently reduce the Total Revolving Credit
Commitment.
(b) In the event of a voluntary permanent reduction of the commitment
under either the Aircraft Facility, the Lease Receivable Financing Facility or
the Lease Receivable Purchase Facility, the Borrower shall be required to
permanently reduce the Total Revolving Credit Commitment by an amount pro rata
to the amount of such reduction of the Aircraft Facility, the Lease Receivable
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Financing Facility or the Lease Receivable Purchase Facility. The Borrower shall
give notice to the Agent at the time of any such reduction to the Aircraft
Facility, the Lease Receivable Financing Facility or the Lease Receivable
Purchase Facility, at which time the Agent shall be instructed to make a pro
rata reduction to the Total Revolving Credit Commitment.
In the case of a reduction under either subsection (a) or (b) above, each
reduction of the Total Revolving Credit Commitment shall be accompanied by
payment of the Loans to the extent that the principal amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
exceeds the Total Revolving Credit Commitment after giving effect to such
reduction, together with accrued and unpaid interest on the amounts prepaid. No
such reduction shall result in the payment of any Eurodollar Rate Loan other
than on the last day of the Interest Period of such Eurodollar Rate Loan unless
such prepayment is accompanied by amounts due, if any, under Section 5.5.
2.8. Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth below and in Article V, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 10:30 A.M. on
any Business Day, Convert all or a part of Eurodollar Rate Loans to Base Rate
Loans on the last day of the Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 10:30 A.M.
three (3) Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Rate Loans to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans to Eurodollar Rate Loans
on any Business Day.
Each election and Conversion pursuant to this Section 2.8 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in Sections 2.1, 2.3 and Article V. The Agent
shall give written notice to each Lender of such notice of election or
Conversion prior to 3:00 P.M. on the day such notice of election or Conversion
is received. All such Continuations or Conversions of Loans shall be effected
pro rata based on the Applicable Commitment Percentages of the Lenders.
2.9. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Revolving Credit Outstandings,
Letters of Credit Outstandings and Swing Line Outstandings.
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2.10. Unused Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an unused fee equal to the Applicable Unused Fee
multiplied by the average daily amount by which the Total Revolving Credit
Commitment exceeds the sum of (i) Revolving Credit Outstandings plus (ii) Letter
of Credit Outstandings. Such fees shall be due in arrears on the last Business
Day of each March, June, September and December commencing June 30, 1998 to and
on the Revolving Credit Termination Date. Notwithstanding the foregoing, so long
as any Lender fails to make available any portion of its Revolving Credit
Commitment when requested, such Lender shall not be entitled to receive payment
of its pro rata share of such fee until such Lender shall make available such
portion. Such fee shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
2.11. Deficiency Advances; Failure to Purchase Participations. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Loan hereunder or fund its purchase
of any Participation hereunder nor shall the Revolving Credit Commitment of any
Lender hereunder be increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrower as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the applicable Note in
its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance shall be paid
by such Lender and (ii) upon payment to the Agent from such other Lender of the
entire outstanding amount of each such deficiency advance, together with accrued
and unpaid interest thereon, from the most recent date or dates interest was
paid to the Agent by a Borrower on each Loan comprising the deficiency advance
at the interest rate per annum for overnight borrowing by the Agent from the
Federal Reserve Bank, then such payment shall be credited against the applicable
Note of the Agent in full payment of such deficiency advance and such Borrower
shall be deemed to have borrowed the amount of such deficiency advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by such Borrower thereon. In the event any
Lender shall fail to fund its purchase of a Participation after notice from the
Issuing Bank or NationsBank, as the Swing Line lender, as applicable, such
Lender shall pay to the Issuing Bank or NationsBank, as the Swing Line lender,
as applicable, interest on the amount so due from the date of such notice at the
interest rate per annum for overnight borrowing by the Agent from the Federal
Reserve Bank to the date such purchase price is received by the Issuing Bank or
NationsBank, as the Swing Line lender, as applicable.
2.12. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower to finance the
cash portion of Permitted Acquisitions. In addition, the proceeds of the Loans
made pursuant to the Revolving Credit Facility including the Swing Line
hereunder may be used by the Borrower for general working capital needs;
provided, however, any Advances intended for use by the Borrower for working
capital needs shall
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be designated as Working Capital Loans, and provided that all Advances shall be
subject to the restrictions set forth in Section 2.1(b).
2.13. Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
be obligated to make any Swing Line Loan pursuant hereto (i) if to the actual
knowledge of NationsBank the Borrower is not in compliance with all the
conditions to the making of Loans set forth in this Agreement, (ii) if after
giving effect to such Swing Line Loan, the Swing Line Out standings exceed
$15,000,000 or (iii) if after giving effect to such Swing Line Loan, the sum of
the Swing Line Outstandings, Revolving Credit Outstandings and Letter of Credit
Outstandings exceeds the Total Revolving Credit Commitment. Swing Line Loans
shall be limited to Base Rate Loans. The Company may borrow, repay and reborrow
under this Section 2.13. Unless notified to the contrary by NationsBank,
borrowings under the Swing Line shall be made in the minimum amount of $500,000
or, if greater, in amounts which are integral multiples of $100,000, or in the
amount necessary to effect a Base Rate Refunding Loan, upon written request by
telefacsimile transmission, effective upon receipt, by an Authorized
Representative of the Borrower made to NationsBank not later than 12:30 P.M. on
the Business Day of the requested borrowing. Each such Borrowing Notice shall
specify the amount of the borrowing and the date of borrowing, the use of the
proceeds of such Swing Line Loan and shall be in the form of Exhibit D-2, with
appropriate insertions. Unless notified to the contrary by NationsBank, each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $100,000 or the aggregate amount of all Swing Line Outstandings. If
the Borrower instructs NationsBank to debit any demand deposit account of the
Borrower in the amount of any payment with respect to a Swing Line Loan, or
NationsBank otherwise receives repayment, after 12:30 P.M. on a Business Day,
such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate, the interest
payable on Swing Line Loans is solely for the account of NationsBank, and all
accrued and unpaid interest on Swing Line Loans shall be payable on the dates
and in the manner provided in Sections 2.2(b) and 2.4 with respect to interest
on Base Rate Loans. The Swing Line Outstandings shall be evidenced by a Note
delivered to NationsBank pursuant to this Section 2.13(b) on the Closing Date in
the original principal amount of $15,000,000.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount equal to
that Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
an amount equal to its Participation therein. Any such provision made by a
Lender pursuant to demand of NationsBank shall be deemed (i) provided that the
conditions to making Loans shall be satisfied, a Base Rate Refunding Loan under
Section 2.1 until the Borrower Converts such Base Rate Loan in accordance with
the terms of Section 2.8, and (ii) in all other cases, the funding by each
Lender of the purchase price of its Participation in such Swing Line Loan. The
obligation of each Lender to so provide such amount to NationsBank shall be
absolute and
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unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence, event or circumstance whatsoever, including without
limitation non-compliance with the restrictions set forth in Section 2.1(b) and
shall be made without any offset, abatement, withholding or reduction
whatsoever.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to NationsBank the amount necessary to repay such Swing
Line Outstandings (which NationsBank shall then apply to such repayment) and
credit any balance of the Advance in immediately available funds in the manner
directed by the Borrower pursuant to Section 2.1(c)(ii). The proceeds of such
Advances shall be paid to NationsBank for application to the Swing Line
Outstandings and the Lenders shall then be deemed to have made Loans in the
amount of such Advances. The Swing Line shall continue in effect until the
Revolving Credit Termination Date, at which time all Swing Line Outstandings and
accrued interest thereon shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.1. Letters of Credit. The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of the Borrower to issue
from time to time for the account of the Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided, that (i) the Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment, (ii) no Letter of Credit shall be issued if, after
giving effect thereto, Letter of Credit Outstandings plus Revolving Credit
Outstandings plus Swing Line Outstandings shall exceed the Total Revolving
Credit Commitment, and (iii) no Letter of Credit shall be issued to support the
purchase of any item of equipment or of any Equipment Lease. No Letter of Credit
shall have an expiry date (including all rights of the Borrower or any
beneficiary named in such Letter of Credit to require renewal) or payment date
occurring later than the earlier to occur of one year after the date of its
issuance or the fifth Business Day prior to the Stated Termination Date.
3.2. Reimbursement.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts required
to pay all drafts drawn or purporting to be drawn under the Letters of Credit in
accordance with the terms of the respective letters of credit and all reasonable
expenses incurred by the Issuing Bank in connection with the Letters of Credit,
and in any event and without demand to place in possession of the Issuing Bank
sufficient funds (which, subject to the restrictions set forth in Section 2.1(a)
and Section 2.1(b), shall include Advances under the Revolving Credit Facility
if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.13)
to pay all debts and liabilities arising under any Letter of Credit. The Issuing
Bank agrees to give the Borrower prompt notice of any request for a draw under a
Letter of Credit. The Issuing Bank may charge any account the Borrower may have
with it for any and all amounts the Issuing Bank pays under a Letter of Credit,
plus charges and reasonable expenses as from time to time agreed to by the
Issuing Bank and the Borrower; provided that to the extent permitted by Section
2.1(c)(iv) and Section 2.13, amounts shall be paid pursuant to Advances under
the Revolving Credit Facility or, if the Borrower shall elect, by Swing Line
Loans. The Borrower agrees to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Default Rate, such rate to be
calculated on the basis of a year of 360 days for actual days elapsed.
(b) In accordance with the provisions of Section 2.1(c)(iv),
the Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of the Issuing Bank in respect of each Letter of Credit in an amount
equal to such Lender's Applicable Commitment Percentage of such liability, and
to the extent that the Borrower is obligated to pay the Issuing Bank under
Section 3.2(a), each
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Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally
and irrevocably assume, and shall be unconditionally obligated to pay to the
Issuing Bank as hereinafter described, its Applicable Commitment Percentage of
the liability of the Issuing Bank under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in its
capacity as a Lender) shall, subject to the terms and
conditions of Article II, pay to the Agent for the account of
the Issuing Bank at the Principal Office in Dollars and in
immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit,
such funds to be provided in the manner described in Section
2.1(c)(iv).
(ii) Simultaneously with the making of each payment
by a Lender to the Issuing Bank pursuant to Section
2.1(c)(iv)(B), such Lender shall, automatically and without
any further action on the part of the Issuing Bank or such
Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the
related Reimbursement Obligation of the Borrower. The
Reimbursement Obligations of the Borrower shall be immediately
due and payable whether by Advances made in accordance with
Section 2.1(c)(iv), Swing Line Loans made in accordance with
Section 2.13, or otherwise.
(iii) Each Lender's obligation to make payment to the
Agent for the account of the Issuing Bank pursuant to Section
2.1(c)(iv) and this Section 3.2(c), and the right of the
Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by the occurrence of any
Event of Default or any other occurrence, event or
circumstance whatsoever, including without limitation any
non-compliance with the restrictions set forth in Section
2.1(b), and shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender is
obligated to pay but does not pay amounts to the Agent for the
account of the Issuing Bank in full upon such request as
required by Section 2.1(c)(iv) or this Section 3.2(c), such
Lender shall, on demand, pay to the Agent for the account of
the Issuing Bank interest on the unpaid amount for each day
during the period commencing on the date of notice given to
such Lender pursuant to Section 2.1(c) until such Lender pays
such amount to the Agent for the account of the Issuing Bank
in full at the interest rate per annum for overnight borrowing
by the Agent from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by Issuing Bank
from the Borrower, Issuing Bank shall promptly pay to each
Lender an amount equal to its Applicable Commitment Percentage
of such payment from the Borrower.
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(d) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the
request of any Lender from time to time, the Issuing Bank shall deliver to the
Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Letter of Credit
outstanding.
(e) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article VI, be
subject to the conditions that such Letter of Credit be in such form and contain
such terms as shall be reasonably satisfactory to the Issuing Bank consistent
with the then current practices and procedures of the Issuing Bank with respect
to similar letters of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of Credit as the
Issuing Bank shall have reasonably requested consistent with such practices and
procedures and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all subsequent
amendments and revisions thereto.
(f) The Borrower agrees that Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of Credit,
any drafts or other documents otherwise in order which may be signed or issued
by an administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in fact or
other legal representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
(g) Without limiting the generality of the provisions of
Section 12.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Agent from and against any and all
claims and damages, losses, liabilities, reasonable costs and expenses which the
Issuing Bank, such other Lender or the Agent may incur (or which may be claimed
against the Issuing Bank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrower shall not
be required to indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this Section 3.2(g) shall
survive repayment of the Obligations, occurrence of the Facility Termination
Date and expiration or termination of this Agreement.
(h) Without limiting Borrower's rights as set forth in Section
3.2(g), the obligation of the Borrower to immediately reimburse the Issuing Bank
for drawings made under Letters of Credit and the Issuing Bank's right to
receive such payment shall be absolute, unconditional and irrevocable, and that
such obligations of the Borrower shall be performed strictly in accordance with
the terms of this Agreement and such Letters of Credit and the related
Applications and Agreement for any Letter of Credit, under all circumstances
whatsoever, including the following circumstances:
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(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
3.3. Letter of Credit Facility Fees. The Borrower shall pay to the
Agent, (i) for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each outstanding Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans, and (ii) for the Issuing Bank, 0.125% per annum based on
the aggregate amount available to be drawn on each outstanding Letter of Credit.
Such fees shall be due with respect to each Letter of Credit quarterly in
arrears on the last day of each March, June, September and December, the first
such payment to be made on the first such date occurring after the date of
issuance of a Letter of Credit. The fees described in this Section 3.3 shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
3.4. Administrative Fees. The Borrower shall pay to the Issuing Bank
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as the Issuing Bank and the Borrower
shall agree from time to time.
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ARTICLE IV
Security
4.1. Security. As security for the full and timely payment and
performance of all Obligations, the Loan Parties (other than Aircraft Special
Purpose Subsidiaries and Aircraft Special Purpose Subsidiary Owners) shall on or
before the Closing Date do or cause to be done all things necessary in the
opinion of the Agent and its counsel to grant to the Agent for the benefit of
the Lenders a duly perfected first priority security interest in all Collateral
subject to no prior Lien or other encumbrance or restriction on transfer (other
than Permitted Liens and restrictions on transfer imposed by applicable
securities laws). Notwithstanding any provision of this Article IV or any
Security Instrument to the contrary, no such security interest shall be granted
in any Excluded Property.
4.2. Stock and Equity Interest Pledge. As security for the full and
timely payment and performance of all Obligations now existing or hereafter
arising, and certain Guarantors' obligations under the Guaranty, the Borrower
and each Subsidiary owning any Pledged Stock or any other Pledged Interests
shall on or before the Closing Date deliver to the Agent, in form and substance
reasonably acceptable to the Agent, the Pledge Agreement together with
certificates representing such Pledged Stock or Pledged Interests and such stock
powers duly executed in blank as may be required by the Agent in accordance with
the terms hereof and thereof. In addition to any Pledge Agreement required to be
delivered pursuant to Section 8.19 hereof, the Borrower and each Subsidiary
hereby agrees to pledge to the Agent for the benefit of the Lenders (i) 100% of
the capital stock and related interests and rights of any Domestic Subsidiary
hereafter acquired or created, and (ii) 65% of the Voting Stock and 100% of the
non-voting common stock and related interests and rights of any Direct Foreign
Subsidiary hereafter acquired or created and, in each case, to deliver to the
Agent a Pledge Agreement substantially in the form of Exhibit M hereto within
thirty (30) days of the acquisition or creation of such Subsidiary.
Notwithstanding the foregoing, any pledge of Pledged Stock of, or Pledged
Interests in, any Non-Aircraft Special Purpose Subsidiary will be subject to
requirements of credit enhancers, rating agencies and other securitization
parties.
4.3. Guaranty. The Borrower shall cause the Guaranty to be delivered on
or before the Closing Date by each Guarantor, in form and substance reasonably
acceptable to the Agent. The Borrower hereby agrees to cause a Guaranty to be
delivered by any hereafter acquired, created or arising Domestic Subsidiary;
provided, however, no hereafter acquired, created or arising Subsidiary that is
a Non-Aircraft Special Purpose Subsidiary shall be required to execute a
Guaranty.
4.4. Security Interests. As security for the full and timely payment
and performance of (i) all Obligations now existing or hereafter arising and
(ii) if applicable, its obligations as a Guarantor under the Guaranty, the
Borrower shall, and shall cause each Guarantor (other than Aircraft Special
Purpose Subsidiaries and Aircraft Special Purpose Subsidiary Owners) to, on or
before the Closing Date deliver to the Agent, in form and substance reasonably
acceptable to the Agent, the Security Agreement, the Uniform Commercial Code
financing statements, and each other Security Instrument sufficient to grant to
the Agent a valid, duly perfected security interest in the Collateral described
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therein, subject to no prior Liens, and do all things necessary in the opinion
of the Agent and its counsel to grant to the Agent for the benefit of the
Lenders a first priority security interest, duly perfected with respect to
Collateral governed by the UCC, in all Collateral subject to no prior Lien or
other encumbrance or restriction on transfer (other than restrictions on
transfer imposed by applicable securities laws). The Borrower hereby agrees to
cause the Security Instruments to be delivered by any hereafter acquired or
created Domestic Subsidiary or, to the extent applicable under foreign law or
practice, Foreign Subsidiary pursuant to the terms of Section 8.19 hereof.
4.5. Pledge and Subordination of Intercompany Notes. As security for
the full and timely payment and performance of (i) all Obligations now existing
or hereafter arising and (ii) certain of the Guarantors' Obligations under the
Guaranty the Borrower shall cause the Intercompany Note Holders to deliver the
Intercompany Note Pledge Agreement to the Agent for the benefit of the Lenders.
The Borrower hereby agrees to cause the Intercompany Note Holders now existing
or hereafter acquired or created to pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ and collaterally assign
to the Agent for the benefit of the Lenders all Intercompany Notes now existing
or hereafter arising.
4.6. Intellectual Property Security Agreement. The Borrower and each
Subsidiary owning any material patents, patent applications, trademarks,
trademark registrations and applications therefor, copyrights, copyright
registrations and applications therefore or any other material intellectual
property, shall deliver to the Agent for the benefit of the Lenders the
Intellectual Property Security Agreement in the form of Exhibit N hereto, and
the Intellectual Property Assignments in the form of Exhibit A to Exhibit N
hereto. The Borrower hereby agrees to pledge, or cause to be pledged, all
intellectual property interests and licenses hereafter acquired or created and
owned by the Borrower or any Subsidiary within thirty (30) days of the
acquisition or creation of such intellectual property or license.
4.7. Further Assurances. At the request of the Agent, the Borrower will
or will cause its Subsidiaries, as the case may be to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Agent reasonably deems necessary from time to time to create, continue or
preserve the liens and security interests in Collateral (and the perfection and
priority thereof) of the Agent contemplated hereby and by the other Loan
Documents.
4.8. Information Regarding Collateral. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Instrument (each,
a "Grantor") at the Closing Date is located at the address or addresses
specified on Schedule 4.8, and (ii) Schedule 4.8 contains a true and complete
list of (a) the name and address of each Grantor and of each other Person that
has effected any merger or consolidation with a Grantor or contributed or
transferred to a Grantor any property constituting Collateral at any time since
January 1, 1993 (excluding Persons making sales in the ordinary course of their
businesses to a Grantor of property constituting inventory in the hands of such
seller), (b) each location of the chief executive office of each Grantor at any
time since January 1, 1993, (c) each location in which goods constituting
Collateral are or have been located since January 1, 1993 (together with the
name of each owner of the property located at such address if not the applicable
Grantor, and a summary
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description of the relationship between the applicable Grantor and such Person),
and (d) each trade style used by any Grantor since January 1, 1993 and the
purposes for which it was used. Borrower shall not change, and shall not permit
any other Grantor to change, the location of its chief executive office or any
location specified in clause (c) of the immediately preceding sentence, or use
or permit any other Grantor to use, any additional trade style, except upon
giving not less than thirty (30) days' prior written notice to the Agent and
taking or causing to be taken all such action at Borrower's or such other
Grantor's expense as may be reasonably requested by the Agent to perfect or
maintain the perfection of the Lien of the Agent in Collateral.
4.9. Termination in Connection with Permitted Sales and
Securitizations. Notwithstanding anything to the contrary herein or in the
Security Instruments, in the event the Borrower or any Subsidiary shall enter
into any Permitted Receivables Sales Transaction or any Permitted Receivables
Securitization, (i) the Lien in favor of the Agent created herein or in the
Security Instruments in any Equipment Lease, Equipment and Residual Interest, as
applicable, shall be automatically terminated to the extent necessary to
effectuate such Permitted Receivables Sales Transaction or such Permitted
Receivables Securitization in connection with such Equipment Lease, Equipment
and Residual Interest, as applicable, (ii) any Guaranty of the Special Purpose
Subsidiary party to such Permitted Receivables Sales Transaction or Permitted
Receivables Securitization, if any, shall be automatically terminated, and (iii)
the Agent shall take all such actions as are necessary to effectuate such
release, all at the sole expense of the Borrower.
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ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency issued after the date hereof:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction, provided that in determining such costs, no Lender shall
treat the Borrower less favorably than borrowers of similar size and
circumstances. If any Lender requests compensation by the Borrower under this
Section 5.1(a), the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Loans of the
Type with respect to which such compensation is requested, or to Convert Loans
of any other Type into Loans of such Type, until the event or condition giving
rise to such request ceases to be in effect (in which case the provisions of
Section 5.4 shall be applicable); provided that such suspension shall not affect
the right of such Lender to receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency issued after
the date hereof, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 5.1 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 5.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
5.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and
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such Lender's obligation to make or Continue Eurodollar Rate Loans and to
Convert other Types of Loans into Eurodollar Rate Loans shall be suspended until
such time as such Lender may again make, maintain, and fund Eurodollar Rate
Loans (in which case the provisions of Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 5.1
or 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent upon reasonable
determination by such Lender that such Affected Loans may not be Eurodollar Rate
Loans) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.1 or 5.3 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1 or 5.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
5.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10.1) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article VI to be satisfied) to borrow, Convert,
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Continue, or prepay a Eurodollar Rate Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the
relevant notice of borrowing, prepayment, Continuation, or Conversion
under this Agreement.
5.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, adopted after the date hereof excluding, in
the case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender (or its Applicable Lending Office) or the Agent (as the case may be) is
organized or any political subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes adopted after the date hereof from or in respect of any
sum payable under this Agreement or any other Loan Document to any Lender or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 5.6) such Lender or the Agent receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to the
Agent, at its address referred to in Section 12.2, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 5.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be given), shall provide the Borrower and the Agent with (i)
Internal Revenue Service Form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States, (ii)
Internal
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Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
such Lender is entitled to an exemption from or a reduced rate of tax on
payments pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 5.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 5.6(a) or
5.6(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 5.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 5.6 shall survive the termination of the Revolving Credit
Commitments and the payment in full of the Notes.
5.7. Syndication Costs. If, within 90 days from the Closing Date, the
Agent incurs any breakage costs, charges or fees incurred with respect to
Eurodollar Rate Loans for Interest Periods of greater than one month in duration
on account of the syndication of the Revolving Credit Facility, the Borrower
shall immediately reimburse the Agent for any such costs, charges or fees. Such
right of reimbursement is in addition to, and not in limitation of, the other
provisions of this Article V. In addition, the Borrower agrees that the
incurrence of such costs and expenses shall not be the basis for the Borrower
withholding its consent or approval of any Person as an Eligible Assignee.
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ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of NationsBank to make any Swing Line
Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement,
the Notes, the Guaranty, the Security Instruments and the
other Loan Documents, together with all schedules and exhibits
thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Loan Parties dated the
Closing Date, addressed to the Agent and the Lenders and
satisfactory to the Agent, substantially in the form of
Exhibit G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Loan Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers of each of the
Loan Parties executing the Loan Documents on behalf of such
Loan Party, certified by the secretary or assistant secretary
of such Loan Party;
(v) the Organizational Documents of each of the Loan
Parties certified as of a recent date by the Secretary of
State of its state of organization;
(vi) Operating Documents of each of the Loan Parties
certified as of the Closing Date as true and correct by its
secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Loan Parties as to the due existence
and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Loan Parties as of a recent date by the Secretary
of State or comparable official of each jurisdiction in which
the failure to be qualified to do business or authorized so to
conduct business could have a Material Adverse Effect;
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(ix) notice of appointment of the initial Authorized
Representative(s);
(x) evidence of all insurance required by the Loan
Documents;
(xi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xii) properly executed Uniform Commercial Code
financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien
in and to such other Collateral as the Agent may require,
including without limitation:
(i) the delivery by the Borrower of all
stock certificates evidencing Pledged Stock and
certificates, if any, evidencing ownership of Pledged
Interests, accompanied in each case by duly executed
stock powers (or other appropriate transfer
documents) in blank affixed thereto; and
(ii) the delivery by the Borrower of
certificates of the Registrar of each non-corporate
Subsidiary evidencing the due registration on the
registration books of such non-corporate Subsidiary
of the Lien in favor of the Agent in the Pledged
Interests conferred under the Security Instruments;
(xiii) Intercompany Notes existing as of the Closing
Date together with endorsements or instruments of assignment
executed in blank and attached thereto;
(xiv) consent by makers of Intercompany Notes to
pledge under the Intercompany Pledge Agreement;
(xv) receipt and satisfactory review of the Pro Forma
Historical Statements and combined quarterly projections for
the Borrower and its Subsidiaries for 1998;
(xvi) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, NMS and the Lenders have
been paid in full;
(xvii) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xviii) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby;
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(xix) true copies of the Registration Statement and
the Related Acquisition Transaction Documents certified to be
true and correct by the Secretary of the Borrower; and
(xxi) an Asset Ceiling Certificate in the form of
Exhibit O hereto; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent prior to the Closing Date that has had
or could reasonably be expected to result in a Material
Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Loan Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Loan
Parties is a party or by which any of them or their properties
is bound.
6.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue Letters of Credit and NationsBank to make Swing Line Loans, hereunder on
or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Agent or, in the case of Swing Line Loans, NationsBank
shall have received a Borrowing Notice if required by Article II;
(b) the representations and warranties of the Loan Parties set
forth in Article VII and in each of the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Advance, Swing Line Loan or Letter of Credit issuance or renewal, with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 7.6(a)(i)
shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 8.1 from the
date financial statements are delivered to the Agent and the Lenders in
accordance with such Section;
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(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default shall have occurred and be continuing; and
(e) immediately after giving effect to:
(i) a Loan, the aggregate principal balance of all
outstanding Loans for each Lender shall not exceed such
Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
outstanding shall not exceed $15,000,000;
(iv) a Working Capital Loan or a Letter of Credit
or renewal thereof, the amount of all Working Capital
Outstandings plus Letter of Credit Outstandings plus the
aggregate principal amount of Swing Line Loans outstanding
constituting Working Capital Loans shall not exceed the Asset
Ceiling; and
(v) a Loan, Swing Line Loan or a Letter of Credit
or renewal thereof, the sum of Letter of Credit Outstandings
plus Revolving Credit Outstandings plus Swing Line
Outstandings shall not exceed the Total Revolving Credit
Commitment.
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ARTICLE VII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation or
partnership duly organized and validly existing under the laws of the
jurisdiction of its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Loan Party (other than the Borrower) has the power
and authority to execute, deliver and perform the Guaranty and each of
the other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which any Loan Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Loan Party,
enforceable against such Loan Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity);
7.2. Loan Documents. The execution, delivery and performance by each
Loan Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Loan Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on such Loan Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Loan Party;
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(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Loan Party is a party, or by which the
properties or assets of such Loan Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Loan Party or
any Subsidiary except any Liens in favor of the Agent and the Lenders
created by the Security Instruments;
7.3. Solvency. Each Loan Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents;
7.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 7.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 8.19; Schedule 7.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
7.4, free and clear of any Lien;
7.5. Ownership Interests. Borrower owns no interest in any Person other
than the Persons listed in Schedule 7.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 9.6 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 8.19;
7.6. Financial Condition.
(a) The Registration Statement includes (i) unaudited pro
forma (x) combined balance sheet and (y) combined statement of
operations of the Borrower and the Founding Companies, (ii) the balance
sheet of the Borrower at December 31, 1997, and (iii) financial
statements of the Founding Companies for the periods set forth therein.
Such balance sheet, statement of operations and financial statements
(including the notes thereto) present fairly the financial condition of
the Borrower and Founding Companies as of the periods reported therein,
all in conformity with GAAP;
(b) since December 31, 1997 (in the case of the Borrower) or
the date of the most recent audited financial statements contained in
the Registration Statement (in the case of the Founding Companies)
there has been no material adverse change in the condition, financial
or otherwise, of (i) the Borrower or any of its Subsidiaries (before
giving effect to the Related
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Acquisition) or (ii) the Founding Companies, or in the businesses,
properties, performance, prospects or operations of (x) the Borrower or
any of its Subsidiaries (before giving effect to the Related
Acquisition) or (y) the Founding Companies, nor have such businesses or
properties been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo or act of God;
(c) except as set forth in the financial statements referred
to in Section 7.6(a) or permitted by Section 9.4, neither Borrower nor
any Subsidiary has incurred, other than in the ordinary course of
business, any material Indebtedness or other commitment or liability
which remains outstanding or unsatisfied;
(d) the Pro Forma Historical Statements provided to the Agent
and the Lenders fairly present in accordance with GAAP the historical
pro forma financial condition and results of operations of the Borrower
and its Subsidiaries for the respective periods covered thereby, after
giving pro forma effect to the Related Acquisition and making the
adjustments described therein; and
(e) the pro forma projections of the Borrower and its
Subsidiaries giving effect to the Related Acquisition for the fiscal
years ending December 31, 1998 and 1999 provided to the Agent and the
Lenders were prepared by the Borrower in good faith and are based upon
assumptions which the Borrower believes to have been reasonable as of
the time of preparation thereof and as of the Closing Date;
7.7. Title to Properties. The Borrower and each of its Subsidiaries and
each other Loan Party has good and marketable title to all its real and personal
properties, subject to no transfer restrictions or Liens of any kind, except for
the transfer restrictions and Liens described in Schedule 7.7 and Liens
permitted by Section 9.3;
7.8. Taxes. Except as set forth in Schedule 7.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal and state income
tax returns which are required to be filed by it, and all other material
federal, state and local tax returns which are required to be filed by it and,
except for taxes and assessments being contested in good faith by appropriate
proceedings diligently conducted and against which reserves reflected in the
financial statements described in Section 7.6(a) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due;
7.9. Other Agreements. No Loan Party nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such
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Loan Party or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could reasonably be likely
to have, a Material Adverse Effect;
7.10. Litigation. Except as set forth in Schedule 7.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or other Loan Party or affecting the Borrower or any Subsidiary or
other Loan Party or any properties or rights of the Borrower or any Subsidiary
or other Loan Party, which could reasonably be likely to have a Material Adverse
Effect;
7.11. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof;
7.12. Investment Company. No Loan Party is an "investment company," or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds
of the Loans and repayment thereof by the Borrower and the performance by the
Borrower and the other Loan Parties of the transactions contemplated by the Loan
Documents will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as in effect on the date hereof;
7.13. Patents, Etc. The Borrower and each other Loan Party owns or has
the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person;
7.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Loan Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading;
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7.15. No Consents, Etc. Neither the respective businesses or properties
of the Loan Parties or any Subsidiary, nor any relationship among the Loan
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Loan Party as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be;
7.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in material compliance
with all Foreign Benefit Laws with respect to all Employee Benefit
Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. No
material liability has been incurred by the Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any material accumulated funding
deficiency with respect to any Employee Benefit Plan, whether or not
waived, or any other liability to the PBGC which remains outstanding
other than the payment of premiums and there are no premium payments
which are due and unpaid, (iii) failed to make a material required
contribution or payment to a Multiemployer Plan, or (iv) failed to make
a material required installment or other required payment under Section
412 of the Code, Section 302 of ERISA or the terms of such Employee
Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
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(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan subject to Title IV of ERISA, maintained by the Borrower
or any ERISA Affiliate, has been adminis tered in accordance with its
terms in all material respects and is in compliance in all material
respects with all applicable requirements of ERISA and other applicable
laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
7.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
7.18. Environmental Laws. Except as listed on Schedule 7.18, the
Borrower and each Subsidiary is in material compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
federal, state and local permits, licenses, certificates and approvals. Except
as listed on Schedule 7.18, neither the Borrower nor any Subsidiary has been
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Borrower nor any Subsidiary is aware of any facts, which (a)
calls into question, or could reasonably be expected to call into question,
compliance by the Borrower or any Subsidiary with any Environmental Laws, (b)
seeks, or could reasonably be expected to form the basis of a meritorious
proceeding, to suspend, revoke or terminate any license, permit or approval
necessary for the operation of the Borrower's or any Subsidiary's business or
facilities or for the generation, handling, storage, treatment or disposal of
any Hazardous Materials, or (c) seeks to cause, or could reasonably be expected
to form the basis of a meritorious proceeding to cause, any property of the
Borrower or any Subsidiary or other Loan Party to be subject to any restrictions
on ownership, use, occupancy or transferability under any Environmental Law;
7.19. Employment Matters. (a) None of the employees of the Borrower or
any Subsidiary is subject to any collective bargaining agreement and there are
no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor/employee related controversies or proceedings pending or, to the
best knowledge of the Borrower, threatened against the Borrower or any
Subsidiary or between the Borrower or any Subsidiary and any of its employees,
other than employee grievances arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance in all respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation those
pertaining to wages, hours, occupational safety and taxation and there is
neither pending or
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threatened any litigation, administrative proceeding nor, to the knowledge of
the Borrower, any investigation, in respect of such matters which, if decided
adversely, could reasonably be likely, individually or in the aggregate, to have
a Material Adverse Effect.
7.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
7.21. Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
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ARTICLE VIII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
8.1. Financial Reports, Etc. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) consolidated and
unaudited consolidating balance sheets of the Borrower and its Subsidiaries as
at the end of such Fiscal Year, and the notes thereto, and the related
consolidated and unaudited consolidating statements of income, stockholders'
equity and cash flows, and the respective notes thereto, for such Fiscal Year,
setting forth (other than for consolidating statements) comparative financial
statements for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a Consistent Basis and containing, with respect to the consolidated
financial statements, opinions of Price Waterhouse, L.L.P., or other such
independent certified public accountants selected by the Borrower and approved
by the Agent, which are unqualified as to the scope of the audit performed and
as to the "going concern" status of the Borrower and without any exception not
acceptable to the Lenders, and (ii) a certificate of an Authorized
Representative demonstrating compliance with Sections 9.1(a) through 9.1(e),
which certificate shall be in the form of Exhibit H;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the period
from the beginning of the then current Fiscal Year through the end of such
reporting period, and accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present fairly the
financial position of the Borrower and its Subsidiaries as of the end of such
fiscal period and the results of their operations and the changes in their
financial position for such fiscal period, in conformity with the standards used
in preparation of the interim financial statements described in Section 7.6(a),
and (ii) a certificate of an Authorized Representative containing computations
for such quarter comparable to that required pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in Section 8.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under Section 8.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial covenants (which at the date of
such statement remains uncured); or if the accountants have obtained knowledge
of such Default or Event of Default, a statement specifying the nature and
period of existence thereof;
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(d) the Borrower shall deliver to the Agent and each Lender (i)
promptly after the filing thereof, a copy of all regular or special reports or
effective registration statements which Borrower or any Subsidiary shall file
with the Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) promptly upon becoming available to the Borrower, a
copy of any proxy statement distributed by the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general, and (iii)
promptly upon becoming available to the Borrower, a copy of any management
letter or other report submitted to the Borrower or any Subsidiary by
independent accountants in connection with any annual, interim or special audit
of the Borrower or any Subsidiary; and
(e) as soon as practicable and in any event within 20 days following
the end of each calendar month, deliver to the Agent and each Lender an Asset
Ceiling Certificate in the form of Exhibit O hereto, such certificate to
demonstrate compliance with limitations on Working Capital Outstandings and
Section 9.1(e) hereof and to include with respect to all Qualified Special
Purpose Subsidiaries information concerning dates of formation, liquidation, and
investments permitted pursuant to Section 9.6 hereof including the amount of
Working Capital Loans received by it from the Borrower;
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
(g) as soon as practicable and in any event within ten (10) days
following a Permitted Receivables Securitization (other than the Lease
Receivable Finance Facility) or a Permitted Receivables Sales Transaction (other
than the Lease Receivable Purchase Facility), deliver to the Agent a statement
of all lease receivables sold, assigned, pledged or otherwise transferred in
connection with such Permitted Receivables Securitization or such Permitted
Receivables Sales Transaction;
Subject to the provisions of Section 12.16 hereof, the Agent and the
Lenders are hereby authorized to deliver a copy of any such financial or other
information delivered hereunder to the Lenders (or any affiliate of any Lender)
or to the Agent, to any Governmental Authority having jurisdiction over the
Agent or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement;
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices;
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8.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 9.7, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which the failure
to do so could reasonably be expected to have a Material Adverse Effect;
8.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any Lien resulting therefrom attaches to any of its property
and becomes enforceable against its creditors;
8.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similar businesses that are similarly situated,
such insurance policies to be in form reasonably satisfactory to the Agent. Each
of the policies of insurance described in this Section 8.5 shall provide that
the insurer shall give the Agent not less than thirty (30) days' prior written
notice before any such policy shall be terminated, lapse or be altered in any
manner;
8.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements;
8.7. Right of Inspection. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties (subject to the limitations
imposed, if any, on such inspections, by lessors under any Equipment Lease),
corporate books and financial reports of the Borrower or any Subsidiary and to
discuss its affairs, finances and accounts with its principal officers and
independent certified public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice;
8.8. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business;
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8.9. Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents in each instance in which the failure to do
so could reasonably be expected to have a Material Adverse Effect;
8.10. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.9, and 8.18
inclusive;
8.11. Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder, or any event,
development or occurrence which could reasonably be expected to have a Material
Adverse Effect, cause such officer or an Authorized Representative to promptly
notify the Agent of the nature thereof, the period of existence thereof, and
what action the Borrower or such Subsidiary or other Loan Party proposes to take
with respect thereto;
8.12. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Loan Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Loan Party, making a claim or claims in an
aggregate amount greater than $2,000,000 not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other
process;
8.13. Notice of Environmental Complaint or Condition. To the extent
likely to have a Material Adverse Effect, promptly provide to the Agent true,
accurate and complete copies of any and all notices, complaints, orders,
directives, claims or citations received by the Borrower or any Subsidiary
relating to any (a) violation or alleged violation by the Borrower or any
Subsidiary of any applicable Environmental Law; (b) release or threatened
release by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally pursuant to a permit or license; or (c) liability or alleged
liability of the Borrower or any Subsidiary for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials;
8.14. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material in violation of any Environmental Laws, or
is liable for the costs of cleaning up, removing, remediating or responding to a
release of Hazardous Materials, the Borrower and any Subsidiary shall, within
the time period permitted and to the extent required by the applicable
Environmental Law or the Governmental Authority responsible for enforcing such
Environmental Law, remove or remedy, or cause the applicable Subsidiary to
remove or remedy, such violation or release or satisfy such liability;
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8.15. Environmental Indemnification. Without limiting the generality of
Section 12.9, each Loan Party hereby agrees jointly and severally to indemnify
and hold the Agent and the Lenders, and their respective officers, directors,
employees and agents, harmless from and against any and all claims, losses,
penalties, liabilities, damages and expenses (including assessment and cleanup
costs and reasonable attorneys', consultants' or other expert fees, expenses and
disbursements) arising directly or indirectly from, out of or by reason of (a)
the violation of any Environmental Law by the Borrower or any Subsidiary or with
respect to any property owned, operated or leased by the Borrower or any
Subsidiary or (b) the handling, storage, transportation, treatment, emission,
release, discharge or disposal of any Hazardous Materials by or on behalf of the
Borrower or any Subsidiary, or on or with respect to property owned or leased or
operated by the Borrower or any Subsidiary. The provisions of this Section 8.15
shall survive repayment of the Obligations, occurrence of the Facility
Termination Date and expiration or termination of this Agreement;
8.16. Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Instruments and the other Loan Documents;
8.17. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions to any Employee Benefit Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (c) any material increase in the benefits of any existing
Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Employee Benefit Plan and all communications received or
sent by the Borrower or any ERISA Affiliate with respect to such
request and (e) the failure of the Borrower or any ERISA Affiliate to
make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder,
deliver to the Agent a notice specifying the nature thereof, what
action the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto and, when known, any action taken
or threatened by the Internal Revenue Service, the Department of Labor
or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an
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Employee Benefit Plan under Section 401(a) of the Code, (b) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer
any Pension Plan, and (c) all notices received by the Borrower or any
ERISA Affiliate from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section 4202
of ERISA. The Borrower will notify the Agent in writing within five (5)
Business Days of the Borrower or any ERISA Affiliate obtaining
knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section
4041(c) of ERISA;
8.18. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted;
8.19. New Subsidiaries. Within sixty (60) days of the acquisition or
creation of any Subsidiary which is required to be a Guarantor hereunder or
executes a Guaranty, but in any event prior to the Borrower or any Subsidiary
making available to such Subsidiary any portion of any Advance, cause to be
delivered to the Agent for the benefit of the Lenders each of the following:
(a) a Guaranty executed by such Subsidiary substantially in
the form of Exhibit I; provided, however, that no Non-Aircraft Special
Purpose Subsidiary shall be required to execute a Guaranty;
(b) a Security Agreement of such Subsidiary (other than an
Aircraft Special Purpose Subsidiary or a Special Purpose Subsidiary
Owner) substantially in the form of Exhibit J, together with such
Uniform Commercial Code financing statements on Form UCC-1 or
otherwise duly executed by such Subsidiary as "Debtor" and naming the
Agent for the benefit of the Lenders as "Secured Party", in form,
substance and number sufficient in the reasonable opinion of the Agent
and its special counsel to be filed in all Uniform Commercial Code
filing offices in all jurisdictions in which filing is necessary or
advisable to perfect in favor of the Agent for the benefit of the
Lenders the Lien on Collateral conferred under such Security Instrument
to the extent such Lien may be perfected by Uniform Commercial Code
filing;
(c) if such Subsidiary (other than an Aircraft Special Purpose
Subsidiary or a Special Purpose Subsidiary Owner) is a Domestic
Subsidiary or a Direct Foreign Subsidiary and is a corporation or is a
non-corporate entity that has issued certificates evidencing ownership
interests therein, (A) the Pledged Stock or, if applicable,
certificates of ownership of the Pledged Interests, together with duly
executed stock powers or powers of assignment in blank affixed thereto,
as required by Section 4.2, and (B) if such Collateral shall be owned
by a Subsidiary who has not then executed and delivered to the Agent a
Security Instrument from the owner of such Collateral granting a Lien
to the Agent in such Collateral, a Security Agreement or a Pledge
Agreement (as appropriate) substantially similar in form and content to
that executed and delivered by the Borrower as of the Closing Date,
with appropriate revisions as to the identity of the pledgor and
securing the obligations of such pledgor under its Guaranty;
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(d) if such Subsidiary (other than an Aircraft Special Purpose
Subsidiary or a Special Purpose Subsidiary Owner) is a non-corporate
entity not described in clause (c) immediately above, (A) the
certificate of the Registrar of such entity with respect to the
registration of the Lien on Pledged Interests, and (B) if such
Collateral shall be owned by a Subsidiary who has not then executed and
delivered to the Agent a Security Instrument from the owner of such
Collateral granting a Lien to the Agent in such Collateral, a Security
Agreement or a Pledge Agreement (as appropriate) substantially similar
in form and content to that executed and delivered by the Borrower as
of the Closing Date, with appropriate revisions as to the identity of
the pledgor and securing the obligations of such pledgor under its
Guaranty;
(e) a supplement to the appropriate schedule attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and complete by the Authorized
Representative (provided that the failure to deliver such supplement
shall not impair the rights conferred under the Security Instruments in
after acquired Collateral);
(f) an Intercompany Note Pledge Agreement and an Intercompany
Note Subordination Agreement executed by such Subsidiary (other than an
Aircraft Special Purpose Subsidiary or a Special Purpose Subsidiary
Owner); provided, however, that no Non-Aircraft Special Purpose
Subsidiary shall be required to execute either an Intercompany Note
Pledge Agreement or an Intercompany Note Subordination Agreement;
(g) if deemed necessary by the Agent, an IPSA Supplement and
an Intellectual Property Security Agreement executed by such Subsidiary
(other than an Aircraft Special Purpose Subsidiary or a Special Purpose
Subsidiary Owner); provided, however, that no Non-Aircraft Special
Purpose Subsidiary shall be required to execute either an IPSA
Supplement or an Intellectual Property Security Agreement;
(h) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Guaranty, if required, and other Loan Documents
provided for in this Section 8.19 and addressed to the Agent and the
Lenders, in form and substance reasonably acceptable to the Agent
(which opinion may include assumptions and qualifications of similar
effect to those contained in the opinions of counsel delivered pursuant
to Section 6.1(a)), to the effect that:
(A) such Subsidiary is validly existing and in good
standing in the jurisdiction of its formation, has the
requisite power and authority to own its properties and
conduct its business as then owned and then conducted and
proposed to be conducted, and is duly qualified to transact
business and is in good standing as a foreign corporation or
partnership in each other jurisdiction in which the character
of the properties owned or leased, or the business carried on
by it, requires such qualification and the failure to be so
qualified would reasonably be likely to result in a Material
Adverse Effect;
(B) the execution, delivery and performance of the
Guaranty, if required, and other Loan Documents described in
this Section 8.19 to which such Subsidiary
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is a signatory have been duly authorized by all requisite
corporate or partnership action (including any required
shareholder or partner approval), each of such agreements has
been duly executed and delivered and constitutes the valid and
binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms, subject to the effect
of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in
a proceeding at law or in equity); and
(C) the Uniform Commercial Code financing statements
on Form UCC-1 delivered to the Agent by the Subsidiary in
connection with the delivery of the Security Instruments of
such Subsidiary have been duly executed by the Subsidiary and
are in form, substance and number sufficient for filing in all
Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary to perfect in favor of the Agent for
the benefit of the Lenders the Lien on Collateral conferred
under such Security Instruments to the extent such Lien may be
perfected by Uniform Commercial Code filing;
(i) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such charter documents, bylaws or by applicable law, of the
shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in this Section 8.19; and
(j) in the event such Subsidiary is a Non-Aircraft Special
Purpose Subsidiary, evidence satisfactory to the Agent that all
requirements of credit enhancers, rating agencies and other
securitization parties have been satisfied.
8.20. Year 2000 Compliance. The Borrower will promptly notify the Agent
in the event the Borrower discovers or determines that any computer application
(including those affected by information received from its suppliers and
vendors) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
8.21. Lease Receivables.
(a) Maintain accurate, complete and current records of all
lease receivables, including but not limited to the asset subject to
the lease, the lessor, the lessee and any assignment, sale, pledge or
other transfer of any lease, lease receivable or the leased asset; all
such records to be maintained by Portfolio Financial Servicing Company,
L.P. or its designee or such other Person as approved by the Agent in
its reasonable discretion; and
(b) no less than thirty (30) days after the end of each Fiscal
Year, and at any other time at the request of the Agent, perform an
audit of the lease receivables and no less than
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forty-five (45) days after the end of each fiscal quarter prepare a
report containing such information as the Agent may reasonably request
with respect to such lease receivables and deliver such report to the
Agent.
8.22. Repayment of Loans and Investments. The Borrower shall cause any
Subsidiary, including any Special Purpose Subsidiary, to immediately repay all
outstanding loans or advances made to it, directly or indirectly, pursuant to
Sections 9.6(g), (h) and (j) upon the disposition by such Subsidiary of its
assets. In addition, the Borrower shall cause each such Subsidiary to
immediately transfer as a dividend or other distribution all profits generated
upon the disposition of its assets to the Borrower or any Guarantor.
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ARTICLE IX
Negative Covenants
Until the Obligations have been paid and satisfied in full, no Letters
of Credit remain outstanding and this Agreement has been terminated in
accordance with the terms hereof, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, nor will it permit any Subsidiary to:
9.1. Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth to
be less than (i) at the Closing Date, the greater of either (A)
$595,000,000, or (B) eighty-five percent (85%) of Consolidated Net
Worth as at May 19, 1998 and (ii) as at the last day of each succeeding
fiscal quarter of the Borrower and until (but excluding) the last day
of the next following fiscal quarter of the Borrower, the sum of (A)
the amount of Consolidated Net Worth required to be maintained pursuant
to this Section 9.1(a) as at the end of the immediately preceding
fiscal quarter, plus (B) 75% of Consolidated Net Income (with no
reduction for net losses during any period) for the fiscal quarter of
the Borrower ending on such day (including within "Consolidated Net
Income" certain items otherwise excluded, as provided for in the
definition of "Consolidated Net Income"), plus (C) 100% of the
aggregate amount of all the Net Proceeds of any Equity Offering of the
Borrower during the fiscal quarter of the Borrower ending on such date.
(b) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any Applicable Period to be greater
than 2.50 to 1.00.
(c) Adjusted Consolidated Fixed Charge Ratio. Permit the
Adjusted Consolidated Fixed Charge Ratio as of the end of any
Applicable Period to be less than 2.50 to 1.00.
(d) Consolidated Indebtedness to Adjusted Consolidated Net
Worth. Permit at any time the ratio of Consolidated Indebtedness to
Adjusted Consolidated Net Worth to be greater than 5.00 to 1.00.
(e) Unencumbered Assets. Permit the value of Unencumbered
Assets at any time to be less than $100,000,000.
9.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition except for a Permitted Acquisition.
9.3. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
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(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in Schedule 7.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on Schedule 7.7, are
inferior in respect of the Collateral to the Liens conferred under the
Security Instruments, and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) purchase money Liens to secure Indebtedness permitted
under Section 9.4(c) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price of
such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness;
(g) Liens arising in connection with Capital Leases permitted
under Section 9.4(c); provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases;
(h) Liens to secure Non-Recourse Indebtedness or arising in a
Permitted Receivables Securitization, provided that such Liens are
limited to those assets securing such Non-Recourse Indebtedness or
Permitted Receivables Securitization, and provided further
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that no Lien shall be incurred, created or permitted to exist on any
Excluded Residual Interest;
(i) Liens arising in connection with the Aircraft Facility;
and
(j) Liens upon Net Proceeds of the exercise by the
underwriters of the "greenshoe option" following completion of the
initial public offering of the Borrower, used to secure letters of
credit or surety bonds;
9.4. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document and
Indebtedness arising under the Aircraft Facility;
(b) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(c) purchase money Indebtedness and Capital Leases described
in Sections 9.3(f) and 9.3(g) not to exceed an aggregate outstanding
amount at any time of $10,000,000;
(d) Indebtedness arising from Rate Hedging Obligations
permitted under Section 9.15;
(e) Non-Recourse Indebtedness;
(f) Intercompany Advances;
(g) Indebtedness arising from a Permitted Receivables
Securitization;
(h) Indebtedness incurred in connection with a loan or advance
permitted under Section 9.6(g), 9.6(h) or 9.6(j);
(i) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (h) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (i) shall in no event exceed $20,000,000 at
any time;
9.5. Transfer of Assets. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than in compliance with Section
2.3(b) or other than (a) dispositions of inventory in the ordinary course of
business and dispositions of property, plant and equipment which is obsolete or
no longer used in the operations of the Borrower or any Subsidiary, (b)
Permitted Receivables Sales Transactions, (c) sales of equipment subject to a
Permitted Receivables Securitization in the ordinary course of business, (d)
transfers of assets necessary to give effect to
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merger or consolidation transactions permitted by Section 9.7, (e) the
disposition of Eligible Securities in the ordinary course of management of the
investment portfolio of the Borrower and its Subsidiaries, (f) pursuant to a
Permitted Receivables Securitization, (g) dispositions of Residual Interests
other than Excluded Residual Interests, and (h) transfers of assets by a Loan
Party to another Loan Party;
9.6. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that the Borrower or any Subsidiary may
maintain investments or invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in Schedule 7.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Subsidiaries which are Guarantors;
(f) loans between the Borrower and the Guarantors described in
Section 9.4(f);
(g) loans and advances to Qualified Special Purpose
Subsidiaries, provided (i) any such loans or advances are evidenced by
a promissory note or other written instrument acceptable to the Agent
payable to a Guarantor or the Borrower, (ii) all such promissory notes
or other evidence of such Indebtedness shall be pledged to the Agent
for the benefit of the Lenders pursuant to an Intercompany Note Pledge
Agreement executed by all obligees thereof, and (iii) all such
Indebtedness shall be due and payable upon disposition by such
Qualified Special Purpose Subsidiary of its assets;
(h) loans and advances to Non-Aircraft Special Purpose
Subsidiaries who are not Guarantors and who are not Qualified Special
Purpose Subsidiaries, provided the aggregate outstanding principal
amount of such loans and advances shall not at any time exceed ten
percent (10%) of Adjusted Consolidated Net Worth;
(i) other loans, advances and investments not otherwise
covered by clause (a) through (h) above in an aggregate principal
amount at any time outstanding not to exceed $5,000,000; and
(j) loans and advances to Subsidiaries who are not Guarantors,
but who are parties to the Lease Receivable Purchase Facility or the
Lease Receivable Financing Facility,
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provided such loans or advances are made to facilitate a Permitted
Receivables Securitization or a Permitted Receivables Sales
Transaction;
9.7. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) liquidate,
wind-up or dissolve or sell, transfer or lease or otherwise dispose of all or a
substantial part of its assets (other than sales permitted under Section 9.5);
provided, however, (i) any Subsidiary of the Borrower may merge or transfer all
or substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Subsidiary of the Borrower, and (ii) any other Person may merge
into or consolidate with the Borrower or any wholly-owned Subsidiary and any
Subsidiary may merge into or consolidate with any other Person in order to
consummate an Acquisition permitted by Section 9.2, provided further, that any
resulting or surviving entity shall execute and deliver such agreements and
other documents, including a Guaranty, (as required under Section 8.19(a) above)
and take such other action as the Agent may require to evidence or confirm its
express assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents;
9.8. Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
9.9. Transactions with Affiliates. Other than transactions permitted
under Sections 9.6 and 9.7, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) in either case in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's (or any Subsidiary's)
business consistent with past practice of the Borrower and its Subsidiaries and
upon fair and reasonable terms no less favorable to the Borrower (or any
Subsidiary) than would be obtained in a comparable arm's-length transaction with
a Person not an Affiliate;
9.10. Compliance with ERISA. With respect to any Pension Plan, Employee
Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
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(d) fail to make any material contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof;
9.11. Fiscal Year. Change its Fiscal Year;
9.12. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 9.7 and except in connection with
transfers of assets permitted under Section 9.5;
9.13. Limitations on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property, whether now owned or hereafter acquired in a related
transaction or series of related transactions, which has been or is to be sold
or transferred by the Borrower or any Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or any
Subsidiary;
9.14. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control;
9.15. Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to Swap Agreements in an aggregate notional
amount of at least 50% of the Revolving Credit Outstandings or as otherwise
agreed by the Agent;
9.16. Negative Pledge Clauses. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now
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owned or hereafter acquired, provided that the Borrower and any Subsidiary may
enter into such an agreement in connection with property acquired with the
proceeds of purchase money Indebtedness permitted hereunder;
9.17. Compensation; Reimbursement of Expenses; Earnouts.
(a) Pay any salary, fees, and other direct and indirect
remuneration and compensation to any of its directors and executive
officers in an amount in excess of those amounts paid to directors and
executive officers of comparable companies engaged in the same general
type of business and in similar financial condition;
(b) Reimburse any stockholder, officer, director, employee or
agent of the Borrower or any Subsidiary for any expenses incurred by
such Person other than reasonable expenses incurred for or on behalf of
the Borrower or any Subsidiary in the ordinary course of business;
(c) Amend, modify, restate or otherwise alter in any material
respect any earnout agreements, or any employment agreements or
non-compete agreements with executive officers of any of the Founding
Companies without the prior written consent of the Agent;
9.18. Prepayments, Etc. of Indebtedness. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness, other than Non-Recourse Indebtedness; or
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in Section 9.4(a) or any lease so that the terms and
conditions thereof are less favorable to the Agent and the Lenders than the
terms of such Indebtedness or leases as of the Closing Date.
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ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III, at maturity, by
acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent within three (3) Business Days of the date on
which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 8.7, 8.11, 8.12, 8.19 or Article
IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or an
executive officer of the Borrower becomes aware of such default, or if
a default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than by reason of any action by the Agent), or if without
the written consent of the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than in accordance with its terms in the absence of default or
by reason of any action by the Lenders or the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than $5,000,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or
fulfillment of any term or
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covenant contained in any agreement or instrument under or pursuant to
which any such Indebtedness or Rate Hedging Obligation may have been
issued, created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) any other event of default as specified in any
agreement or instrument under or pursuant to which any such
Indebtedness or Rate Hedging Obligation may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and
such default or event of default under (i), (ii) or (iii) hereof shall
continue for more than the period of grace, if any, therein specified,
or such default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more
holders) to accelerate the maturity thereof; provided, however, that
the events described in this Section 10.1(e) shall not constitute an
Event of Default to the extent that such event relates to a Special
Purpose Subsidiary and the Borrower is subject to no recourse as a
result of such event;
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Loan Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Loan Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Loan Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any Subsidiary or other Loan Party or of the whole or
any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against
the Borrower or any Subsidiary or other Loan Party any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the Borrower
or any Subsidiary or other Loan Party takes any action to indicate its
consent to or approval of any such proceeding or petition; or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $5,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $5,000,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders and the Issuing
Bank to make further Revolving Loans and Swing Line Loans or
to issue additional Letters of Credit terminated, whereupon
the obligation of each Lender to make further Revolving Loans,
of NationsBank to make further Swing Line Loans, and of the
Issuing Bank to issue additional Letters of Credit, hereunder
shall terminate immediately, and (ii) the Agent shall at the
direction of the Required Lenders, at their option, declare by
notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrower to the Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in
any instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under clause
(g) or (h) above, then the obligation of the Lenders to make
Revolving Loans, of NationsBank to make Swing Line Loans, and
of the Issuing Bank to issue Letters of Credit hereunder shall
automatically terminate and any and all of the Obligations
shall be immediately due and payable without the necessity of
any action by the Agent or the Required Lenders or notice to
the Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
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(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
10.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.10, 3.3,
3.4 and 12.5;
(b) amounts due to the Agent pursuant to Section 11.9;
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 10.1(B);
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(f) amounts due to the Lenders pursuant to Sections 3.2(g),
8.15 and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap Agreement with any
of the Lenders on a pro rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 11.5 and
the first sentence of Section 11.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Loan Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Loan Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Loan Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
11.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in
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accordance with Section 12.1 hereof. As to any matters not expressly provided
for by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Loan Document or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such action.
11.3. Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
11.4. Rights as Lender. With respect to its Revolving Credit Commitment
and the Loans made by it, NationsBank (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. NationsBank
(and any successor acting as Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Loan Party or any of its Subsidiaries
or affiliates as if it were not acting as Agent, and NationsBank (and any
successor acting as Agent) and its affiliates may accept fees and other
consideration from any Loan Party or any of its Subsidiaries or affiliates for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.5. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 12.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document provided that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under Section
11.5, to the extent that the Agent is not promptly reimbursed for such costs and
expenses by
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the Borrower. The agreements contained in this Section 11.5 shall survive
payment in full of the Loans and all other amounts payable under this Agreement.
11.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Loan Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any Loan
Party or any of its Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
11.7. Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent; provided,
however, so long as no Default or Event of Default shall have occurred and be
continuing such successor Agent shall be subject to the consent of the Borrower,
which consent shall not be unreasonably withheld. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a commercial bank organized under the laws of the
United States of America having combined capital and surplus of at least
$2,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor shall thereupon succeed to and become vested with all
the rights, powers, discretion, privileges, and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
11.8. Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article V) which results in its receiving more than its pro rata share of the
aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis and payments pursuant to Article V), then (a) such Lender shall be deemed
to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata and (b) such other adjustments shall be made from time to time
as shall be equitable to insure that the Lenders share such payments ratably;
provided, however, that for purposes of this Section 11.8 the term "pro rata"
shall be determined with respect to the Revolving Credit Commitment of each
Lender and to the Total Revolving Credit Commitments after subtraction in each
case of amounts, if any, by which any such Lender has not funded its share of
the outstanding Loans and Obligations. If all or any portion of any such excess
payment is thereafter recovered from the Lender which received the same, the
purchase provided in this Section 11.8 shall be rescinded to
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the extent of such recovery, without interest. The Borrower expressly consents
to the foregoing arrangements and agrees that each Lender so purchasing a
portion of the other Lenders' Obligations may exercise all rights of payment
(including, without limitation, all rights of set-off, banker's lien or
counterclaim) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
11.9. Fees. The Borrower agrees to pay to the Agent, for its individual
account, an annual Agent's fee as from time to time agreed to by the Borrower
and Agent in writing.
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ARTICLE XII
Miscellaneous
12.1. Assignments and Participations. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Note, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under this
Agreement and the Note; and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit B hereto, together with any Note subject to such assignment and a
processing fee of $3,500, not to be reimbursed by the Borrower.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 5.6.
(b) The Agent shall maintain at its address referred to in Section 12.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B
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hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the yield protection
provisions contained in Article V and the right of set-off contained in Section
12.3, and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement (other
than amendments, modifications, or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Subject to the provisions of Section 12.16 hereof, any Lender may
furnish any information concerning the Borrower or any of its Subsidiaries in
the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants).
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram, telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day after
the day on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
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(a) if to the Borrower:
UniCapital Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, National Association
▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Loan Party, at the address set forth
on the signature page of the Guaranty or Security
Instrument executed by such Loan Party, as the case
may be.
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12.3. Right of Set-off; Adjustments.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
Section 12.3 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 12.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
12.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Eurodollar Rate Loan hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the Loan
Documents shall inure to the benefit of the successors and permitted assigns of
the Lenders or any of them.
12.5. Expenses. The Borrower agrees to pay subject to the fee letter on
demand all costs and expenses of the Agent in connection with the syndication,
preparation, execution, delivery,
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administration, modification, and amendment of this Agreement, the other Loan
Documents, and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent (excluding
the cost of internal counsel) with respect thereto and with respect to advising
the Agent as to its rights and responsibilities under the Loan Documents. The
Borrower further agrees to pay on demand all costs and expenses of the Agent and
the Lenders, if any (including, without limitation, reasonable external
attorneys' fees and expenses), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the Loan Documents and
the other documents to be delivered hereunder.
12.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article XI or the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitment of the Lenders,
(ii) reduce the principal of or rate of interest on any Loan or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for the payment
of any scheduled installment of principal of or interest on any Loan or any fees
or other amounts payable hereunder or for termination of any Revolving Credit
Commitment, or (iv) change the percentage of the Revolving Credit Commitment or
of the unpaid principal amount of the Notes, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action under this
Section 12.6 or any other provision of this Agreement or (v) release any
Guarantor or all or substantially all of the Collateral; and provided, further,
that no such amendment or waiver that affects the rights, privileges or
obligations of NationsBank as provider of Swing Line Loans, shall be effective
unless signed in writing by NationsBank or that affects the rights, privileges
or obligations of the Issuing Bank as issuer of Letters of Credit, shall be
effective unless signed in writing by the Issuing Bank; and provided, however,
that notwithstanding anything to the contrary in this Section 12.6, the release
of any Liens or Guarantors pursuant to Section 4.8 shall not require the
approval of any Lender.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the
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benefit of the Lenders under the Loan Documents shall continue in full force and
effect, notwith standing the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other than
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, which shall continue) or the Borrower has
furnished the Lenders and the Agent with an indemnification satisfactory to the
Agent and each Lender with respect thereto. All representations, warranties,
covenants, waivers and agreements contained herein shall survive termination
hereof until payment in full of the Obligations unless otherwise provided
herein. Notwithstanding the foregoing, if after receipt of any payment of all or
any part of the Obligations, any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of trust funds or
for any other reason, this Agreement shall continue in full force and the
Borrower shall be liable to, and shall indemnify and hold the Agent or such
Lender harmless for, the amount of such payment surrendered until the Agent or
such Lender shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Agent or the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Agent or the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
12.9. Indemnification; Limitation of Liability.
(a) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their affiliates and their respective
officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without
limitation, reasonable external attorneys' fees) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation,
or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Loans except to the
extent such claim, damage, loss, liability, cost, or expense is found
in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
12.9 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any
other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated.
The Borrower agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, any Guarantor, or any security holders or
creditors thereof arising out of, related to or in connection with the
transactions contemplated herein, except to the extent that such
liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified
Party's gross negligence or willful misconduct. The Borrower agrees not
to assert any claim against the Agent, any Lender, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of
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liability, for special, indirect, consequential, or punitive damages
arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
(b) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 12.9 shall survive the payment in
full of the Loans and all other amounts payable under this Agreement.
12.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, Eurodollar Rate Loans and other communications between or among
the parties, both oral and written, with respect thereto.
12.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are
96
103
presently in effect or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher maximum nonusurious
interest rate than applicable laws now allow.
12.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
MIAMI-DADE, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
97
104
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY
ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE
UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
12.15. Payments. All principal, interest, and other amounts to be made
by the Borrower under this Agreement and the other Loan Documents shall be made
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
12.16. Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement; provided that nothing herein
shall prevent any Lending Party from disclosing such information (a) to any
other Lending Party or any affiliate of any Lending Party, or any officer,
director, employee, agent, or advisor of any Lending Party or affiliate of any
Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) in connection with any litigation to which
such Lending Party or any of its affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or
any other Loan Document, and (i) subject to provisions substantially similar to
those contained in this Section, to any actual or proposed participant or
assignee.
12.17. Intercreditor Agreement. The Agent and each of the Lenders
hereby acknowledges and agrees to be bound by the terms of the Intercreditor
Agreement.
[Signatures on following pages]
98
105
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
UNICAPITAL CORPORATION
WITNESS:
By:
---------------------------------- ---------------------------------
Name:
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- Title: Vice President
-----------------------------
CREDIT AGREEMENT
SIGNATURE PAGES
106
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
------------------------------
CREDIT AGREEMENT
SIGNATURE PAGES
107
NATIONSBANK, NATIONAL ASSOCIATION
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
------------------------------
Lending Office for Base Rate Loans:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, National Association
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Reference: UniCapital
Attention: Corporate Credit Services
Lending Office for Eurodollar Rate Loans:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, National Association
ABA#: ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Reference: UniCapital
Attention: Corporate Credit Services
CREDIT AGREEMENT
SIGNATURE PAGES
108
EXHIBIT A
Applicable Commitment Percentages
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
------ ---------------- ----------
NationsBank, National
Association $300,000,000.00 100.00%
----------- ----------
$300,000,000.00 100%
A-1
109
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of June 10, 1998
(the "Credit Agreement") among UniCapital Corporation, a Delaware corporation
(the "Borrower"), the Lenders (as defined in the Credit Agreement) and
NationsBank National Association, as agent for the Lenders (the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note held by the Assignor and requests that the Agent
exchange such Note for new Notes payable to the order of the Assignee in an
amount equal to the Revolving Credit Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Revolving Credit Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is not an affiliate of the Borrower; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of
B-1
110
the Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or other forms required under Section
5.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date specified on Schedule 1.
5. As of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. From and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
111
Schedule 1
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Aggregate outstanding principal amount
of Loans assigned: $_______
Principal amount of Note payable to Assignee: $_______
Principal amount of Note payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): *_______, 19__
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------------
Title:
Dated: , 19
----------- --
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
B-3
112
Accepted [and Approved] **
this ___ day of ___________, 19 _
NATIONSBANK NATIONAL ASSOCIATION
By:____________________________________
Title:
[Approved this ____ day
of ____________, 19__
UNICAPITAL CORPORATION
By:____________________________________]**
Title:
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
B-4
113
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of June
10, 1998 (the "Agreement") among UniCapital Corporation, a Delaware corporation
(the "Borrower"), the Lenders (as defined in the Agreement), and NationsBank,
National Association, as Agent for the Lenders ("Agent"). Capitalized terms used
but not defined herein shall have the respective meanings therefor set forth in
the Agreement.
The Borrower hereby nominates, constitutes and appoints each
individual named below as an Authorized Representative under the Loan Documents,
and hereby represents and warrants that (i) set forth opposite each such
individual's name is a true and correct statement of such individual's office
(to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act as
Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
-------------------------- ------------------------- ------------------------
--------------------------
--------------------------
-------------------------- ------------------------- ------------------------
-------------------------- ------------------------- ------------------------
--------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of June, 1998.
UNICAPITAL CORPORATION
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
C-1
114
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank, National Association,
as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June
10, 1998 (the "Agreement") among UniCapital Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and NationsBank, National Association, as
Agent for the Lenders ("Agent"). Capitalized terms used but not defined herein
shall have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to the Agent that Loans of the type and amount set forth below be made on
the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
----------- --------- --------- ---------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000, unless
a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
Use of Proceeds:
----------------
[ ] Acquisition Loan
[ ] Working Capital Loan.
The Borrower hereby requests that the proceeds of Loans described
in this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions].
D-1-1
115
The undersigned hereby certifies that:
1. In the event any Loan hereunder is a Working Capital Loan which
is to be loaned or advanced to a Subsidiary of the Borrower, the obligee of such
loan or advance is ___________________________ and the Subsidiary to which such
amounts are to be loaned or advanced is ___________________________, and (a)
such loan or advance to such Subsidiary shall be evidenced by a promissory note
or other written evidence of Indebtedness satisfactory to the Agent, (b) such
promissory note or other written evidence of Indebtedness shall be pledged to
the Agent for the benefit of the Lenders pursuant to an Intercompany Note Pledge
Agreement, and (c) the obligations owed to the Borrower or any other Subsidiary
pursuant to such Indebtedness shall be subordinated to the Obligations pursuant
to an Intercompany Note Subordination Agreement.
2. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
3. All the representations and warranties set forth in Article VII
of the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 7.6(a) of the
Agreement are to those financial statements most recently delivered to you
pursuant to Section 8.1 of the Agreement (it being understood that any financial
statements delivered pursuant to Section 8.1(b) have not been certified by
independent public accountants) and attached hereto are any changes to the
Schedules referred to in connection with such representations and warranties.
4. The Borrower represents and warrants to the Agent that the
amount of Working Capital Outstandings plus Letter of Credit Outstandings, after
giving effect to the Loan requested hereunder, does not exceed the Asset
Ceiling.
5. All conditions contained in the Agreement to the making of any
Loan requested hereby have been met or satisfied in full.
UNICAPITAL CORPORATION
BY:
------------------------------------------------
Authorized Representative
DATE:
----------------------------------------------
▇-▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
Form of Borrowing Notice--Swing Line Loans
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June
10, 1998 (the "Agreement") among UniCapital Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and NationsBank, National Association, as
Agent for the Lenders ("Agent"). Capitalized terms used but not defined herein
shall have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to NationsBank that a Swing Line Loan of the amount set forth below be
made on the date indicated:
Amount(1) Date of Loan
--------- ------------
--------- ----------, ----
-----------------------
(1) Must be $_________ or if greater an integral multiple of $_______, unless a
Base Rate Refunding Loan.
Use of Proceeds:
----------------
[ ]
-------------------------------------------------------
[ ]
-------------------------------------------------------
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[insert transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and
D-2-1
117
correct as of the date hereof except that the reference to the financial
statements in Section 7.6(a) of the Agreement are to those financial statements
most recently delivered to you pursuant to Section 8.1 of the Agreement (it
being understood that any financial statements delivered pursuant to Section
8.1(b) have not been certified by independent public accountants) and attached
hereto are any changes to the Schedules referred to in connection with such
representations and warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
UNICAPITAL CORPORATION
BY:
-----------------------------------------------
Authorized Representative
DATE:
----------------------------------------------
D-2-2
118
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association
(Carolinas), as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of June 10,
1998 (the "Agreement") among UniCapital Corporation (the "Borrower"), the
Lenders (as defined in the Agreement), and NationsBank, National Association, as
Agent for the Lenders ("Agent"). Capitalized terms used but not defined herein
shall have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan [or Segment] and
Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
----------- --------- --------- ---------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $_________ or if greater an integral multiple of $_______, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan.
UNICAPITAL CORPORATION
BY:
-----------------------------------------------
Authorized Representative
DATE:
----------------------------------------------
E-1
119
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________
_________, Florida
June 10, 1998
FOR VALUE RECEIVED, UNICAPITAL CORPORATION, a Delaware corporation
having its principal place of business located in Bar Harbor Island, Florida
(the "Borrower"), hereby promises to pay to the order of _______________________
________________________ (the "Lender"), in its individual capacity, at the
office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders (the
"Agent"), located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, NC1-001-
15-04, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the
Agent may designate in writing) at the times set forth in the Credit Agreement
dated as of June 10, 1998 among the Borrower, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement, and
to pay interest from the date hereof on the unpaid principal amount hereof, in
like money, at said office, on the dates and at the rates provided in Article II
of the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2 (a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-1-1
120
This Revolving Note is one of the Revolving Notes in the principal
amount of $300,000,000 referred to in the Agreement and is issued pursuant to
and entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Revolving Loans evidenced hereby were or are made and are to be repaid. This
Revolving Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Revolving Note
any collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
UNICAPITAL CORPORATION
WITNESS:
By:
----------------------------- ----------------------------------------
Name:
--------------------------------------
Title:
----------------------------- -------------------------------------
F-1-2
121
EXHIBIT F-2
Form of Swing Line Note
Swing Line Note
$15,000,000 _________, ______________
June 10, 1998
FOR VALUE RECEIVED, UNICAPITAL CORPORATION (the "Borrower") hereby
promises to pay to NATIONSBANK, NATIONAL ASSOCIATION or its assigns (the
"Lender"), in its individual capacity, at the office of NATIONSBANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (the "Agent"), located at
One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as the Agent may designate in
writing) at the times set forth in the Credit Agreement dated as of June 10,
1998 among the Borrower, the financial institutions party thereto (collectively,
the "Lenders") and the Agent (as amended and supplemented and in effect from
time to time, the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
lesser of (i) the principal amount of FIFTEEN MILLION DOLLARS ($15,000,000) or
(ii) if less than such principal amount, the aggregate unpaid principal amount
of all Swing Line Loans made by the Lender to the Borrower pursuant to the
Agreement on the Revolving Credit Termination Date or such earlier date as may
be required pursuant to the terms of the Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in Article II of the Agreement.
All or any portion of the principal amount of Loans may be prepaid or may be
required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2(a) of the Agreement.
Further, in the event of such acceleration, this Note shall become immediately
due and payable, without presentation, demand, protest or notice of any kind,
all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Note is the Swing Line Note in the aggregate principal amount of
US$15,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the
F-2-1
122
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions upon which the Swing Line Loans evidenced hereby were or
are made and are to be repaid. This Note is subject to certain restrictions on
transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
UNICAPITAL CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
F-2-2
123
EXHIBIT G
Form of Opinion of Borrower's Counsel
June 10, 1998
See attached.
G-1
124
EXHIBIT H
Compliance Certificate
NationsBank, National Association,
as Agent
Independence Center, 15th ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NationsBank, National Association,
as Agent
__________________________________
__________________________________
Attention: _______________________
Telefacsimile: (___) ___-____
Reference is hereby made to the Credit Agreement dated as of June 10,
1998 (the "Agreement") among UniCapital Corporation, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement) and NationsBank, National
Association, as Agent for the Lenders ("Agent"). Capitalized terms used but not
otherwise defined herein shall have the respective meanings therefor set forth
in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with Section 9.1(a) Consolidated Net Worth:
-----------------------
1. Consolidated Net Worth $__________
REQUIRED:
(A) CLOSING DATE: $__________
EACH SUCCEEDING FISCAL QUARTER:
-------------------------------
a. Requirement for preceding fiscal quarter $__________
b. Consolidated Net Income
for preceding fiscal quarter (including
certain items otherwise excluded from
Consolidated Net Income) $__________
c. If (b.) is positive, multiply line (b.) by 75%;
if (b.) is negative, enter "0" $__________
d. Add Lines (a.) and (c.) $__________
H-1
125
e. Aggregate Net Proceeds of any Equity
Offering during preceding fiscal quarter;
if negative, enter "0" $__________
f. Add Lines (d.) and (e.) $__________
(B) CURRENT FISCAL QUARTER (LINE f.) $__________
B. Compliance with Section 9.1(c) Adjusted Consolidated Fixed Charge Ratio:
-----------------------------------------
1. Adjusted Consolidated EBITDA
(sum of a. through f.) $__________
a. Consolidated Net Income (adjusted
in accordance with subparagraph
(i) of the definition of Adjusted
Consolidated EBITDA) $__________
b. Adjusted Consolidated
Interest Expense $__________
c. Taxes on Income $__________
d. Amortization of intangible assets $__________
e. Depreciation on assets not subject
to operating leases $__________
f. Credit loss chargeable to Consolidated Net
Income but not incurred during the period $__________
2. Consolidated Lease Payments
made during such period $__________
3. Capital Expenditures made during such period $__________
4. Cash taxes paid during such period $__________
5. Adjusted Consolidated Fixed
Charges (sum of a. through d.) $__________
a. Adjusted Consolidated Interest Expense $__________
b. Required principal payments on
Recourse Indebtedness for such period $__________
c. Consolidated Lease Payments
made during such period $__________
d. Cash portion of any earnouts paid
during such period $__________
6. B.1 + B.2 $__________
7. B.3 + B.4
8. B.6 - B.7 $__________
9. B.5 $__________
H-2
126
10. Ratio of B.8 to B.9 ___ to 1.00
REQUIRED: LINE B.10 MUST NOT BE LESS THAN 2.50 TO 1.00
C. Compliance with Section 9.1(b) Consolidated Leverage Ratio:
----------------------------
1. Adjusted Consolidated Indebtedness $__________
2. Adjusted Consolidated EBITDA (as calculated
above) $__________
3. Ratio of C.1 to C.2 ___ to 1.00
REQUIRED: LINE C.3 MUST NOT BE MORE THAN 2.50 TO 1.00
D. Compliance with Section 9.1(d) Consolidated
------------
Indebtedness to Adjusted Consolidated Net Worth
-----------------------------------------------
1. Consolidated Indebtedness $__________
2. Consolidated Shareholders Equity $__________
3. D.1 + D.2 $__________
4. Ratio of D.1 to D.3 ___ to 1.00
REQUIRED: LINE D.4 MUST NOT BE GREATER THAN 5.00 TO 1.00
E. Compliance with Section 9.1(e) Unencumbered Assets
-------------------
1. Unencumbered Assets $__________
REQUIRED: LINE E.1 MUST BE GREATER THAN $100,000,000
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the
keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and (b) no
Default or Event of Default specified in Article X of the
Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred
since __________ (the date of the last similar certification),
the Borrower proposes to take the following action with
respect to such Default or Event of Default:__________________
______________________________________________________________
___________________________.
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 8.1 of the
Agreement.
H-3
127
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of _______,
_____.
UNICAPITAL CORPORATION
By:
---------------------------------
Authorized Representative
Name:
-------------------------------
Title:
------------------------------
H-4
128
EXHIBIT I
Form of Guaranty Agreement
See attached.
I-1
129
EXHIBIT J
Form of Security Agreement
See attached.
J-1
130
EXHIBIT K
Form of Intercompany Note Pledge Agreement
See attached.
K-1
131
EXHIBIT L
Form of Intercompany Note Subordination Agreement
See attached.
L-1
132
EXHIBIT M
Form of Pledge Agreement
See attached.
M-1
133
EXHIBIT N
Form of Intellectual Property Security Agreement
See attached.
N-1
134
EXHIBIT O
Form of Asset Ceiling Certificate
The undersigned Authorized Officer of UniCapital Corporation hereby
certifies the following to be true and correct as of ____________ ___, 19__ [the
last day of preceding month] to be:
I. Book value of Unencumbered Assets eligible to be
considered in the computation of the Asset Ceiling:
A. Equipment held for lease $_____________
B. Equipment held for sale $_____________
C. Lease Receivables $_____________
D. Note Receivables $_____________
E. TOTAL ELIGIBLE UNENCUMBERED ASSETS $_____________
II. Asset Ceiling
A. Total Eligible Unencumbered Assets
(from I.A. above) $_____________
B. Line II.B. x 90% $_____________
C. Asset Ceiling Addition $15,000,000.00
--------------
ASSET CEILING AS OF THE DATE
FIRST SET FORTH ABOVE (SUM OF II.B AND II.C) $
=============
III. Information Concerning Qualified Special Purpose Subsidiaries:
A. Attached hereto as Schedule 1 is a complete list of all
Qualified Special Purpose Subsidiaries, including with respect
to each one, the date of formation, the date of liquidation
(if applicable), the amounts and dates of all investments
therein and the dates and amounts of all Working Capital Loans
used to fund such investments.
O-1
135
EXECUTED THIS ___ DAY OF __________________, ______.
UNICAPITAL CORPORATION
By:
---------------------------------
Authorized Representative
Name:
-------------------------------
Title:
------------------------------
O-2
136
EXHIBIT P
Form of LC Account Agreement
See attached.
P-1
137
Schedule 4.8
------------
Information Regarding Collateral
S-1
138
Schedule 7.4
------------
Subsidiaries and Investments in Other Persons
S-2
139
Schedule 7.7
------------
Liens
S-3
140
Schedule 7.8
------------
Tax Matters
S-4
141
Schedule 7.10
-------------
Litigation
S-5
142
Schedule 7.18
-------------
Environmental Matters
S-6