EXHIBIT 99
REVOLVING CREDIT LOAN AGREEMENT
DATED AS OF AUGUST 10, 2001
AMONG
LONE STAR STEAKHOUSE & SALOON, INC.
AS BORROWER
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT
================================================================================
SUNTRUST CAPITAL MARKETS, INC.
AS ARRANGER AND BOOK MANAGER
ARTICLE I DEFINITIONS; CONSTRUCTION..........................................1
Section 1.1 Definitions.............................................1
Section 1.2 Classifications of Loans and Borrowings................16
Section 1.3 Accounting Terms and Determination.....................16
Section 1.4 Terms Generally........................................17
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..............................17
Section 2.1 General Description of Facilities......................17
Section 2.2 Revolving Loans........................................17
Section 2.3 Procedure for Revolving Borrowings.....................18
Section 2.4 Swingline Commitment...................................18
Section 2.5 Procedure for Swingline Borrowing; Etc.................18
Section 2.6 [Intentionally Omitted]................................20
Section 2.7 [Intentionally Omitted]................................20
Section 2.8 Funding of Borrowings..................................20
Section 2.9 Interest Elections.....................................21
Section 2.10 Optional Reduction and Termination of Commitments......22
Section 2.11 Repayment of Loans.....................................22
Section 2.12 Evidence of Indebtedness...............................22
Section 2.13 Optional Prepayments...................................23
Section 2.14 Interest on Loans......................................23
Section 2.15 Fees...................................................24
Section 2.16 Computation of Interest and Fees.......................25
Section 2.17 Inability to Determine Interest Rates..................25
Section 2.18 Illegality.............................................26
Section 2.19 Increased Costs........................................26
Section 2.20 Funding Indemnity......................................28
Section 2.21 Taxes..................................................28
Section 2.22 Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.........................30
Section 2.23 Mitigation of Obligations; Replacement of Lenders......31
Section 2.24 Letters of Credit......................................32
ARTICLE III CONDITIONS PRECEDENT TO
LOANS AND LETTERS OF CREDIT................................................36
Section 3.1 Conditions To Effectiveness............................36
Section 3.2 Each Credit Event......................................37
Section 3.3 Delivery of Documents..................................38
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................38
Section 4.1 Existence; Power.......................................38
Section 4.2 Organizational Power; Authorization....................38
Section 4.3 Governmental Approvals; No Conflicts...................38
Section 4.4 Financial Statements...................................39
Section 4.5 Litigation and Environmental Matters...................39
Section 4.6 Compliance with Laws and Agreements....................39
Section 4.7 Investment Company Act, Etc............................39
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Section 4.8 Taxes..................................................40
Section 4.9 Margin Regulations.....................................40
Section 4.10 ERISA..................................................40
Section 4.11 Ownership of Property..................................40
Section 4.12 Disclosure.............................................40
Section 4.13 Labor Relations........................................41
Section 4.14 Subsidiaries...........................................41
ARTICLE V AFFIRMATIVE COVENANTS.............................................41
Section 5.1 Financial Statements and Other Information.............41
Section 5.2 Notices of Material Events.............................42
Section 5.3 Existence; Conduct of Business.........................43
Section 5.4 Compliance with Laws, Etc..............................43
Section 5.5 Payment of Obligations.................................43
Section 5.6 Books and Records......................................44
Section 5.7 Visitation, Inspection, Etc............................44
Section 5.8 Maintenance of Properties; Insurance...................44
Section 5.9 [Intentionally Omitted]................................44
Section 5.10 Use of Proceeds and Letters of Credit..................44
ARTICLE VI FINANCIAL COVENANTS..............................................45
Section 6.1 Leverage Ratio.........................................45
Section 6.2 Fixed Charge Coverage Ratio............................45
Section 6.3 Consolidated Net Worth.................................45
Section 6.4 Minimum Profitability..................................45
ARTICLE VII NEGATIVE COVENANTS..............................................45
Section 7.1 Indebtedness...........................................45
Section 7.2 Negative Pledge........................................46
Section 7.3 Fundamental Changes....................................47
[Section 7.4 Investments, Loans, Etc................................48
[Section 7.5 Restricted Payments....................................48
[Section 7.6 Sale of Assets.........................................49
Section 7.7 Transactions with Affiliates...........................49
Section 7.8 Restrictive Agreements.................................49
Section 7.9 Sale and Leaseback Transactions........................50
Section 7.10 Hedging Agreements.....................................50
Section 7.11 Amendment to Material Documents........................50
Section 7.12 [Intentionally Omitted]................................50
Section 7.13 Accounting Changes.....................................50
ARTICLE VIII EVENTS OF DEFAULT..............................................50
Section 8.1 Events of Default......................................50
ARTICLE IX THE ADMINISTRATIVE AGENT.........................................53
Section 9.1 Appointment of Administrative Agent....................53
Section 9.2 Nature of Duties of Administrative Agent...............54
Section 9.3 Lack of Reliance on the Administrative Agent...........54
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Section 9.4 Certain Rights of the Administrative Agent.............54
Section 9.5 Reliance by Administrative Agent.......................55
Section 9.6 The Administrative Agent in its Individual Capacity....55
Section 9.7 Successor Administrative Agent.........................55
ARTICLE X MISCELLANEOUS.....................................................56
Section 10.1 Notices................................................56
Section 10.2 Waiver; Amendments.....................................57
Section 10.3 Expenses; Indemnification..............................58
Section 10.4 Successors and Assigns.................................60
Section 10.5 Governing Law; Jurisdiction;
Consent to Service of Process..........................63
Section 10.6 WAIVER OF JURY TRIAL...................................63
Section 10.7 Right of Setoff........................................64
Section 10.8 Counterparts; Integration..............................64
Section 10.9 Survival...............................................64
Section 10.10 Severability...........................................65
Section 10.11 Confidentiality........................................65
Section 10.12 Interest Rate Limitation...............................65
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Schedules
---------
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
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REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT (this "Agreement") is made and
entered into as of August 10, 2001, by and among LONE STAR STEAKHOUSE & SALOON,
INC., a Delaware corporation (the "Borrower"), SUNTRUST BANK, INTRUST BANK, N.A.
and the several banks and other financial institutions from time to time party
hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as Administrative
Agent for the Lenders (the "Administrative Agent" or "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$50,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments, are willing to
establish the requested revolving credit facility for the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest
Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR for such Interest Period by (ii) a percentage equal to 1.00 MINUS the
Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the Closing
Date, the Aggregate Revolving Commitments equal Fifty Million Dollars
($50,000,000).
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean with respect to all Eurodollar Loans
an amount equal to 150 basis points (1.50%) per annum.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment
fee or the letter of credit fee, as the case may be, as of any date, an amount
equal to 150 basis points (1.50%) per annum.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which
the Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, or (ii) the Federal Funds Rate, as
in effect from time to time, PLUS one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning in the introductory paragraph
hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the
same Class and Type, made, converted or continued on the same date and in case
of Eurodollar Loans, as to which a single Interest Period is in effect, or (ii)
a Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday
or other day on which commercial banks in Atlanta, Georgia or Nashville,
Tennessee are authorized or required by law to close and (ii) if such day
relates to a Borrowing of, a payment or prepayment of principal or interest on,
a conversion of or into, or an Interest Period for, a Eurodollar Loan or a
notice with respect to any of the foregoing, any day on which dealings in
Dollars are carried on in the London interbank market.
"CAPITAL EXPENDITURES" shall mean for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Subsidiaries that are (or would be)
set forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal
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property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 30% or more of the outstanding shares of the voting stock of the
Borrower (notwithstanding the foregoing, if a Person or "group" presently owns
five percent (5%) or more of the shares of Borrower or such Person or "group" is
currently part of the existing management, such acquisition of ownership will
not constitute a "change in control"; or (c) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the current board of directors or (ii)
appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.19(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (i) August
10, 2004, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.10 or (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"CONSOLIDATED CASH FLOW" shall mean, for the Borrower and its
Subsidiaries for any period, EBITDAR less Maintenance Capital Expenditures.
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"CONSOLIDATED EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period PLUS (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense and (iii) depreciation and amortization.
"CONSOLIDATED EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Lease Expense.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
Interest Expense for such period, (b) scheduled principal payments made on
Consolidated Total Debt during such period, and (c) Restricted Payments paid
during such period, (d) income tax expense, (e) Consolidated Lease Expense for
such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total cash interest expense, including without
limitation the interest component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) PLUS (ii) the net amount payable (or MINUS the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the
aggregate amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains or losses attributable to write-ups or write-downs of assets; (iii)
any non-cash charges or credits related to Borrower's currently outstanding
stock options; (iv) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary and
(v) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are acquired by the Borrower or any
Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, MINUS (i) the total
liabilities of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries that would
be reflected on a consolidated balance sheet of the Borrower prepared in
accordance with GAAP as of such date.
"CONTROL" shall mean the power, directly or indirectly, either to
(i) vote 5% or more of securities having ordinary voting power for the election
of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person,
whether through
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the ability to exercise voting power, by contract or otherwise. The terms
"CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have meanings
correlative thereto.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section
2.14(d).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
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"EURODOLLAR" when used in reference to any Loan or Borrowing refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.23(b), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.21(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.21(a).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period of four
consecutive fiscal quarters of the Borrower and its Subsidiaries, the ratio of
(a) Consolidated Cash Flow for such period to (b) Consolidated Fixed Charges for
such period.
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of a jurisdiction other than that of the Borrower. For purposes of this
definition, the United States of America or any State thereof or the District of
Columbia shall constitute one jurisdiction.
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"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest
rates, currency values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
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all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, and (x)
Off-Balance Sheet Liabilities. The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum relating to the Borrower and the transactions contemplated by this
Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean (i) with respect to any Eurodollar
Borrowing, a period of one, two, three or six months and (ii) with respect to a
Swingline Loan, a period of such duration not to exceed thirty (30) days or such
period, as the Borrower may request and the Swingline Lender may agree in
accordance with Section 2.5; provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless, in the case of a
Eurodollar Borrowing, such Business Day falls in another calendar
month, in which case such Interest Period would end on the next
preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar
Borrowing which begins on the last Business Day of a calendar month
or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment
Termination Date or the Swingline Termination Date, as the case may
be.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.24.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit in an aggregate face amount not to exceed Ten Million Dollars
($10,000,000).
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
8
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, PLUS (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant
to Section 2.24 by the Issuing Bank for the account of the Borrower pursuant to
the LC Commitment.
"LEVERAGE RATIO" shall mean, for any period of four consecutive
fiscal quarters of the Borrower and its Subsidiaries, the ratio of (i)
Consolidated Total Debt as of such date to (ii) Consolidated EBITDA as of such
date.
"LIBOR" shall mean, for any applicable Interest Period with respect
to any Eurodollar Loan, the rate per annum for deposits in Dollars for a period
equal to such Interest Period appearing on the display designated as Page 3750
on the Dow ▇▇▇▇▇ Markets Service (or such other page on that service or such
other service designated by the British Banker's Association for the display of
such Association's Interest Settlement Rates for Dollar deposits) as of 11:00
a.m. (London, England time) on the day that is two Business Days prior to the
first day of the Interest Period or if such Page 3750 is unavailable for any
reason at such time, the rate which appears on the Reuters Screen ISDA Page as
of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are
offered to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank market as
of 10:00 a. m. for delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the LC Documents, all Notices of Borrowing, the Subsidiary Guarantee
Agreement, and any and all other instruments, agreements, documents and writings
executed in connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Subsidiary Loan Parties.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
9
"MAINTENANCE CAPITAL EXPENDITURES" shall mean Capital Expenditures
incurred by the Borrower or its Subsidiaries for ordinary and necessary
maintenance of its property, plant and equipment.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets or liabilities of
the Borrower and of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform any of their respective obligations under
the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the
Loans and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $4,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect to any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"MATERIAL SUBSIDIARY" shall mean at any time any direct or indirect
Subsidiary of the Borrower having: (a) assets in an amount equal to at least 5%
of the total assets of the Borrower and its Subsidiaries determined on a
consolidated basis as of the last day of the most recent fiscal quarter of the
Borrower at such time; or (b) revenues or net income in an amount equal to at
least 5% of the total revenues or net income of the Borrower and its
Subsidiaries on a consolidated basis for the 12-month period ending on the last
day of the most recent fiscal quarter of the Borrower at such time.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by
the Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.9(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth
in Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth
in Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any
10
insolvency, reorganization or like proceeding relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and expenses of
counsel to the Administrative Agent and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan Document), whether
direct or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising hereunder or thereunder, together with all
renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any
so-called "synthetic" lease transaction or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which
are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due
or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
11
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation
or legal proceeding that are currently being contested in good faith
by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in
the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct
of business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the
United States (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States), in each case maturing within one year from the date of
acquisition thereof;
(ii) commercial paper having the highest rating, at the
time of acquisition thereof, of S&P or Moody's and in either case
maturing within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and
time deposits maturing within 180 days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or any
state thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (i)
above and entered into with a financial institution satisfying the
criteria described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of
the Permitted Investments described in clauses (i) through (iv)
above.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time,
a percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and the denominator of which shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving Commitments have been terminated or
expired or if the Loans have been declared to be due and payable, a percentage,
12
the numerator of which shall be the sum of such Lender's Revolving Credit
Exposure, and the denominator of which shall be the sum of the aggregate
Revolving Credit Exposure of all Lenders.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding more
than 66 2/3% of the aggregate outstanding Revolving Credit Exposures at such
time or if the Lenders have no Revolving Credit Exposure outstanding, then
Lenders holding more than 66 2/3% of the Aggregate Revolving Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section
7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person becoming a Lender
after the Closing Date, the amount of the assigned "Revolving Commitment" as
provided in the Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be
13
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (i) of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power, or in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
Controlled or held, or (ii) that is, as of such date, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Subsidiary executing the
Subsidiary Guarantee Agreement.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed zero dollars ($0).
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also
14
may be classified and referred to by Class (e.g. "Revolving Borrowing") or by
Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving
Eurodollar Borrowing").
SECTION 1.3 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the Borrower delivered pursuant to Section 5.1(a); provided, that
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article VI to eliminate the effect of any change in GAAP
on the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4 TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.24, (iii) the Swingline Lender agrees to
make Swingline Loans in accordance with Section 2.4; and (iv) each Lender agrees
to purchase a participation interest in the Letters of Credit and the Swingline
Loans pursuant to the terms and conditions hereof; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans,
Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect.
15
SECTION 2.2 REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitments. During the Availability Period,
the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement; provided, that the
Borrower may not borrow or reborrow should there exist a Default or Event of
Default.
SECTION 2.3 PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE OF REVOLVING
BORROWING") (x) prior to 11:00 a.m. one (1) Business Day prior to the requested
date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business
Days prior to the requested date of each Eurodollar Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Borrowing, (ii) the date of such Borrowing (which shall
be a Business Day), (iii) the Type of such Revolving Loan comprising such
Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the
initial Interest Period applicable thereto (subject to the provisions of the
definition of Interest Period). Each Revolving Borrowing shall consist entirely
of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The
aggregate principal amount of each Eurodollar Borrowing shall be not less than
$5,000,000 or a larger multiple of $1,000,000, and the aggregate principal
amount of each Base Rate Borrowing shall not be less than $1,000,000 or a larger
multiple of $100,000; provided, that Base Rate Loans made pursuant to Section
2.5 or Section 2.24(c) may be made in lesser amounts as provided therein. At no
time shall the total number of Eurodollar Borrowings outstanding at any time
exceed five. Promptly following the receipt of a Notice of Revolving Borrowing
in accordance herewith, the Administrative Agent shall advise each Lender of the
details thereof and the amount of such Lender's Revolving Loan to be made as
part of the requested Revolving Borrowing.
SECTION 2.4 SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect and (ii) the difference between the
Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures of
all Lenders; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
SECTION 2.5 PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) The Borrower
shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Borrowing ("NOTICE OF SWINGLINE
BORROWING") prior to 10:00 a.m. on the requested date of each Swingline
Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall
specify: (i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender and shall have an Interest Period (subject
16
to the definition thereof) as agreed between the Borrower and the Swingline
Lender. The aggregate principal amount of each Swingline Loan shall be not less
than $100,000 or a larger multiple of $50,000, or such other minimum amounts
agreed to by the Swingline Lender and the Borrower. The Swingline Lender will
make the proceeds of each Swingline Loan available to the Borrower in Dollars in
immediately available funds at the account specified by the Borrower in the
applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the
requested date of such Swingline Loan. The Administrative Agent will notify the
Lenders on a quarterly basis if any Swingline Loans occurred during such
quarter.
(b) The Swingline Lender, at any time and from time to
time in its sole discretion, may, on behalf of the Borrower (which
hereby irrevocably authorizes and directs the Swingline Lender to
act on its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the Swingline
Lender) to make Base Rate Loans in an amount equal to the unpaid
principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available
to the Administrative Agent for the account of the Swingline Lender
in accordance with Section 2.8, which will be used solely for the
repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent),
or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an
undivided participating interest in such Swingline Loan in an amount
equal to its Pro Rata Share thereof on the date that such Base Rate
Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender. If
such Swingline Loan bears interest at a rate other than the Base
Rate, such Swingline Loan shall automatically become a Base Rate
Loan on the effective date of any such participation and interest
shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan
pursuant to Section 2.5(b) or to purchase the participating
interests pursuant to Section 2.5(c) shall be absolute and
unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other
Person may have or claim against the Swingline Lender, the Borrower
or any other Person for any reason whatsoever, (ii) the existence of
a Default or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence (or alleged existence) of
any event or condition which has had or could reasonably be expected
to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent
or any Lender or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Swingline Lender by any
Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof at the Federal
Funds Rate. Until such time as such Lender makes its required
payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In addition,
such Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Loans and any other amounts
due to it hereunder, to the Swingline Lender to fund the amount of
17
such Lender's participation interest in such Swingline Loans that
such Lender failed to fund pursuant to this Section, until such
amount has been purchased in full.
SECTION 2.6 [INTENTIONALLY OMITTED].
SECTION 2.7 [INTENTIONALLY OMITTED].
SECTION 2.8 FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made
by it hereunder on the proposed date thereof by wire transfer in
immediately available funds by 11:00 a.m. to the Administrative
Agent at the Payment Office; provided, that the Swingline Loans will
be made as set forth in Section 2.5. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the
amounts that it receives, in like funds by the close of business on
such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a
wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been
notified by any Lender prior to 5 p.m. one (1) Business Day prior to
the date of a Borrowing in which such Lender is participating that
such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on
such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender on the date of such Borrowing, the Administrative Agent shall
be entitled to recover such corresponding amount on demand from such
Lender together with interest at the Federal Funds Rate for up to
two (2) days and thereafter at the rate specified for such
Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the
Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share of
any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by
such Lender hereunder.
(c) All Revolving Borrowings shall be made by the
Lenders on the basis of their respective Pro Rata Shares. No Lender
shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make
its Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to make its Loans hereunder.
SECTION 2.9 INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type
specified in the applicable Notice of Borrowing, and in the case of
a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower may
elect to convert such Borrowing into a different Type or to continue
such Borrowing, and in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion
18
shall be allocated ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall
NOT apply to or Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice
(or telephonic notice promptly confirmed in writing) of each
Borrowing (a "NOTICE OF CONVERSION/CONTINUATION") that is to be
converted or continued, as the case may be, (x) prior to 10:00 a.m.
one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation
shall be irrevocable and shall specify (i) the Borrowing to which
such Notice of Continuation/Conversion applies and if different
options are being elected with respect to different portions
thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made
pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting
Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall
be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar
Borrowing but does not specify an Interest Period, the Borrower
shall be deemed to have selected an Interest Period of one month.
The principal amount of any resulting Borrowing shall satisfy the
minimum borrowing amount for Eurodollar Borrowings and Base Rate
Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in
respect of any Eurodollar Borrowing, the Borrower shall have failed
to deliver a Notice of Conversion/ Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed
to have elected to convert such Borrowing to a Base Rate Borrowing.
No Borrowing may be converted into, or continued as, a Eurodollar
Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise
consented in writing. No conversion of any Eurodollar Loans shall be
permitted except on the last day of the Interest Period in respect
thereof.
(d) Upon receipt of any Notice of
Conversion/Continuation, the Administrative Agent shall promptly
notify each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
SECTION 2.10 OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving
Commitments and the Swingline Commitment shall terminate on the
Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the
Borrower may reduce the Aggregate Revolving Commitments in part or
terminate the Aggregate Revolving Commitments in whole; provided,
that (i) any partial reduction shall apply to reduce proportionately
and permanently the Revolving Commitment of each Lender, (ii) any
19
partial reduction pursuant to this Section 2.10 shall be in an
amount of at least $5,000,000 and any larger multiple of $1,000,000,
and (iii) no such reduction shall be permitted which would reduce
the Aggregate Revolving Commitments to an amount less than the
outstanding Revolving Credit Exposures of all Lenders. Any such
reduction in the Aggregate Revolving Commitments shall result in a
proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment and the LC
Commitment.
SECTION 2.11 REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving
Loans shall be due and payable (together with accrued and unpaid
interest thereon) on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing
shall be due and payable (together with accrued interest thereon) on
the earlier of (i) the last day of the Interest Period applicable to
such Borrowing or (ii) the Commitment Termination Date.
SECTION 2.12 EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.9, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.9, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be PRIMA FACIE evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the
Swingline Lender) at any time, the Borrower agrees that it will
execute and deliver to such Lender a Revolving Credit Note, and, in
the case of the Swingline Lender only, a Swingline Note, payable to
the order of such Lender.
SECTION 2.13 OPTIONAL PREPAYMENTS.
The Borrower shall have the right at any time and from time to time
to prepay any Borrowing, in whole or in part, without premium or penalty, by
giving irrevocable written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent no later than (i) in the case of prepayment
of any Eurodollar Borrowing, 11:00 a.m. not less than three (3) Business Days
prior to any such prepayment, (ii) in the case of any prepayment of any Base
Rate Borrowing, not less than one Business Day prior to the date of such
prepayment, and (iii) in the case of Swingline Borrowings, prior to 11:00 a. m.
on the date of such prepayment. Each such notice shall be irrevocable and shall
specify the proposed
20
date of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.14(e); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an Interest
Period applicable thereto, the Borrower shall also pay all amounts required
pursuant to Section 2.20. Each partial prepayment of any Loan (other than a
Swingline Loan) shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or in
the case of a Swingline Loan pursuant to Section 2.5. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
SECTION 2.14 INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate
Loan at the Base Rate in effect from time to time and on each
Eurodollar Loan at the Adjusted LIBO Rate for the applicable
Interest Period in effect for such Loan, PLUS, in the case of
Eurodollar Loans only, the Applicable Margin.
(b) Unless otherwise agreed in writing executed by
Borrower and the Swingline Lender, the Borrower shall pay interest
on each Swingline Loan at the Base Rate in effect from time to time.
(c) While an Event of Default exists or after
acceleration, at the option of the Required Lenders, the Borrower
shall pay interest ("DEFAULT INTEREST") with respect to all
Eurodollar Loans at the rate otherwise applicable for the
then-current Interest Period PLUS an additional 2% per annum until
the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans (including all Swingline Loans) and
all other Obligations hereunder (other than Loans), at an all-in
rate in effect for Base Rate Loans, PLUS an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but
excluding the date of any repayment thereof. Interest on all
outstanding Base Rate Loans shall be payable monthly in arrears on
the last day of each calendar month and on the Commitment
Termination Date. Interest on all outstanding Eurodollar Loans shall
be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months on each day which occurs every
three months after the initial date of such Interest Period, and on
the Commitment Termination Date. Interest on each Swingline Loan
shall be payable on the maturity date of such Loan, which shall be
the last day of the Interest Period applicable thereto and on the
Commitment Termination Date. Interest on any Loan which is converted
into a Loan of another Type or which is repaid or prepaid shall be
payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof.
All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder and shall promptly
notify the Borrower and the Lenders of such rate in writing (or by
21
telephone, promptly confirmed in writing). Any such determination
shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.15 FEES.
(a) The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously
agreed upon the Borrower and the Administrative Agent.
(b) COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee, which shall accrue at one quarter of one percent (.25%) per
annum, on the daily amount of the unused Revolving Commitment of
such Lender during the Availability Period; provided, that if such
Lender continues to have any Revolving Credit Exposure after the
Commitment Termination Date, then the commitment fee shall continue
to accrue on the amount of such Lender's unused Revolving Commitment
from and after the Commitment Termination Date to the date that all
of such Lender's Revolving Credit Exposure has been paid in full.
Accrued commitment fees shall be payable in arrears on the last day
of each March, June, September and December of each year and on the
Commitment Termination Date, commencing on the first such date after
the Closing Date; provided further, that any commitment fees
accruing after the Commitment Termination Date shall be payable on
demand. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender
shall be deemed used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender.
(c) LETTER OF CREDIT FEES. The Borrower agrees to pay
(i) to the Administrative Agent, for the account of each Lender, a
letter of credit fee with respect to its participation in each
Letter of Credit, which shall accrue at the Applicable Percentage on
the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
attributable to such Letter of Credit during the period from and
including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter expires or is drawn in full
(including without limitation any LC Exposure that remains
outstanding after the Commitment Termination Date) and (ii) to the
Issuing Bank for its own account a fronting fee, which shall accrue
at the rate of one-eighth of one percent (.125%) per annum on the
average daily amount of the LC Exposure (excluding any portion
thereof attributable to Unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is
irrevocably canceled, whichever is later), as well as the Issuing
Bank's standard fees with respect to issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings
thereunder.
(d) CLOSING FEE. The Borrower shall pay to the
Administrative Agent, for the ratable benefit of each Lender, a
closing fee equal to $75,000. The closing fee shall be due and
payable on the Closing Date.
(e) PAYMENTS. Accrued fees (other than the closing fee
referenced in paragraph (d)) shall be payable quarterly in arrears
on the last day of each March, June, September and December,
commencing on September 30, 2001 and on the Commitment Termination
Date.
22
SECTION 2.16 COMPUTATION OF INTEREST AND FEES.
All computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or fees are payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
SECTION 2.17 INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have
determined (which determination shall be conclusive and
binding upon the Borrower) that, by reason of
circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for
such Interest Period, or
(ii) the Administrative Agent shall have
received notice from the Required Lenders that the
Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case
may be) of making, funding or maintaining their (or its,
as the case may be) Eurodollar Loans for such Interest
Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.18 ILLEGALITY. If any Change in Law shall make it unlawful
or impossible for any Lender to make, maintain or fund any Eurodollar Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Revolving Loans, or to continue or
convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In
the case of the making of a Eurodollar Revolving Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving
Borrowing for the same Interest Period and if the affected Eurodollar Loan is
then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on
the last day of the then current Interest Period applicable to such Eurodollar
Loan if such Lender may lawfully continue to maintain such Loan to such date or
(ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
23
SECTION 2.19 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement that is
not otherwise included in the determination of the
Adjusted LIBO Rate hereunder against assets of, deposits
with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing
Bank or the eurodollar interbank market any other
condition affecting this Agreement or any Eurodollar
Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have
determined that on or after the date of this Agreement any Change in
Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's
capital (or on the capital of such Lender's or the Issuing Bank's
parent corporation) as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender's or the
Issuing Bank's policies or the policies of such Lender's or the
Issuing Bank's parent corporation with respect to capital adequacy)
then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy
thereof to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent
corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation, as the case may be, specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower (with a
copy to the Administrative Agent) and shall be conclusive, absent
manifest error. The Borrower shall pay any such Lender or the
Issuing Bank, as the case may be, such amount or amounts within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's or the Issuing Bank's right
to demand such compensation provided, that the Borrower shall not be
24
required to compensate a Lender or the Issuing Bank under this
Section for any increased costs or reductions incurred more than six
(6) months prior to the date that such Lender or the Issuing Bank
notifies the Borrower of such increased costs or reductions and of
such Lender's or the Issuing Bank's intention to claim compensation
therefor; provided further, that if the Change in Law giving rise to
such increased costs or reductions is retroactive, then such
six-month period shall be extended to include the period of such
retroactive effect.
SECTION 2.20 FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.20 submitted to the Borrower by any Lender shall be conclusive, absent
manifest error.
SECTION 2.21 TAXES.
(a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent, any
Lender or the Issuing Bank (as the case may be) shall receive an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Bank, within five (5) Business
Days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with
respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified
25
Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced
rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and
the Borrower (or in the case of a Participant, to the Lender from
which the related participation shall have been purchased) two (2)
duly completed copies of Internal Revenue Service Form 1001 or 4224,
or any successor form thereto, as the case may be, certifying in
each case that such Foreign Lender is entitled to receive payments
made by the Borrower hereunder and under the Notes payable to it,
without deduction or withholding of any United States federal income
taxes and (ii) a duly completed Internal Revenue Service Form W-8 or
W-9, or any successor form thereto, as the case may be, to establish
an exemption from United State backup withholding tax. Each such
Foreign Lender shall deliver to the Borrower and the Administrative
Agent such forms on or before the date that it becomes a party to
this Agreement (or in the case of a Participant, on or before the
date such Participant purchases the related participation). In
addition, each such Lender shall deliver such forms promptly upon
the obsolescence or invalidity of any form previously delivered by
such Lender. Each such Lender shall promptly notify the Borrower and
the Administrative Agent at any time that it determines that it is
no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose).
26
SECTION 2.22 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under
Section 2.19, 2.20 or 2.21, or otherwise) prior to 12:00 noon, on
the date when due, in immediately available funds, without set-off
or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to
the Administrative Agent at the Payment Office, except payments to
be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to
Sections 2.19, 2.20 and 2.21 and 10.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest,
interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment
of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to
such parties.
(c) If any Lender shall, by exercising any right of
set-of or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would
result in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than
the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in
LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving
Loans and participations in LC Disbursements and Swingline Loans;
provided, that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements or Swingline
Loans to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). The Borrower consents to the foregoing
and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of the Borrower in the
amount of such participation.
27
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or
the Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount or amounts due. In such
event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.5(b), 2.24(c) or
(d), 2.7(b), 2.22(d) or 10.3(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender's obligations
under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.23 MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS. If
any Lender requests compensation under Section 2.19, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.21, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the sole
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable under Section 2.19 or Section 2.21, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with such designation or assignment.
SECTION 2.24 LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to
Section 2.24(d), agrees to issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms and
conditions hereinafter set forth; provided, that (i) each Letter of
Credit shall expire on the earlier of (A) the date one year after
the date of issuance of such Letter of Credit (or in the case of any
renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to
the Commitment Termination Date; (ii) each Letter of Credit shall be
in a stated amount of at least $500,000; and (iii) the Borrower may
not request any Letter of Credit, if, after giving effect to such
issuance (A) the aggregate LC Exposure would exceed the LC
Commitment or (B) the aggregate LC Exposure, PLUS the aggregate
outstanding Revolving Loans of all Lenders, would exceed the
Aggregate Revolving Commitments. Upon the issuance of each Letter of
Credit each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without
recourse a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit. Each issuance of a Letter of
28
Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or
any amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three (3)
Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case
may be), the expiration date of such Letter of Credit, the amount of
such Letter of Credit , the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. In addition to the
satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of
such Letter of Credit) will be subject to the further conditions
that such Letter of Credit shall be in such form and contain such
terms as the Issuing Bank shall approve and that the Borrower shall
have executed and delivered any additional applications, agreements
and instruments relating to such Letter of Credit as the Issuing
Bank shall reasonably require; provided, that in the event of any
conflict between such applications, agreements or instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the
Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately
preceding the date the Issuing Bank is to issue the requested Letter
of Credit (1) directing the Issuing Bank not to issue the Letter of
Credit because such issuance is not then permitted hereunder because
of the limitations set forth in Section 2.24(a) or that one or more
conditions specified in Article III are not then satisfied, then,
subject to the terms and conditions hereof, the Issuing Bank shall,
on the requested date, issue such Letter of Credit in accordance
with the Issuing Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents
purporting to represent a demand for payment under a Letter of
Credit promptly following its receipt thereof. The Issuing Bank
shall notify the Borrower and the Administrative Agent of such
demand for payment and whether the Issuing Bank has made or will
make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the Issuing Bank and the Lenders with
respect to such LC Disbursement. The Borrower shall be irrevocably
and unconditionally obligated to reimburse the Issuing Bank for any
LC Disbursements paid by the Issuing Bank in respect of such
drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and
the Administrative Agent prior to 11:00 a.m. on the Business Day
immediately prior to the date on which such drawing is honored that
the Borrower intends to reimburse the Issuing Bank for the amount of
such drawing in funds other than from the proceeds of Revolving
Loans, the Borrower shall be deemed to have timely given a Notice of
Revolving Borrowing to the Administrative Agent requesting the
Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank;
provided, that for purposes solely of such Borrowing, the conditions
precedents set forth in Section 3.2 hereof shall not be applicable.
29
The Administrative Agent shall notify the Lenders of such Borrowing
in accordance with Section 2.3, and each Lender shall make the
proceeds of its Base Rate Loan included in such Borrowing available
to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.8. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the
Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent),
or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund
the participation that such Lender purchased pursuant to subsection
(a) in an amount equal to its Pro Rata Share of such LC Disbursement
on and as of the date which such Base Rate Borrowing should have
occurred. Each Lender's obligation to fund its participation shall
be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender or
any other Person may have against the Issuing Bank or any other
Person for any reason whatsoever, (ii) the existence of a Default or
an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any of its Subsidiaries, (iv) any
breach of this Agreement by the Borrower or any other Lender, (v)
any amendment, renewal or extension of any Letter of Credit or (vi)
any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the
Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on
its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment;
provided, that if such payment is required to be returned for any
reason to the Borrower or to a trustee, receiver, liquidator,
custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank
any portion thereof previously distributed by the Administrative
Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) of this Section
2.24 on the due date therefor, such Lender shall pay interest to the
Issuing Bank (through the Administrative Agent) on such amount from
such due date to the date such payment is made at a rate per annum
equal to the Federal Funds Rate; provided, that if such Lender shall
fail to make such payment to the Issuing Bank within three (3)
Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the
Default Rate.
(g) If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders,
an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation
to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, with
demand or notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (g) or (h)
of Section 8.1. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative
30
Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on
such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has
been accelerated, with the consent of the Required Lenders, be
applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrower with three Business Days after all
Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter,
the Issuing Bank shall deliver (through the Administrative Agent) to
each Lender and the Borrower a report describing the aggregate
Letters of Credit outstanding at the end of such fiscal quarter.
Upon the request of any Lender from time to time, the Issuing Bank
shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The Borrower's obligation to reimburse LC
Disbursements hereunder shall be absolute, unconditional and
irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under all circumstances whatsoever and
irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability
of any Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off,
defense or other right which the Borrower or any
Subsidiary or Affiliate of the Borrower may have at any
time against a beneficiary or any transferee of any
Letter of Credit (or any Persons or entities for whom
any such beneficiary or transferee may be acting), any
Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter
of Credit or any document related hereto or thereto or
any unrelated transaction;
(iii) Any draft or other document presented
under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or
other document to the Issuing Bank that does not
materially comply with the terms of such Letter of
Credit;
(v) Any other event or circumstance
whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower's
obligations hereunder; or
31
(vi) The existence of a Default or an Event
of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor
any Related Party of any of the foregoing shall have any liability
or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances
referred to above), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided, that the
foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts or other
documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree, that in the absence of
gross negligence or willful misconduct on the part of the Issuing
Bank (as finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse
to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the
Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as
the same may be amended from time to time, and, to the extent not
inconsistent therewith, the governing law of this Agreement set
forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2).
(a) The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the Closing
Date, including reimbursement or payment of all out-of-pocket
expenses (including reasonable fees, charges and disbursements of
counsel to the Administrative Agent) required to be reimbursed or
paid by the Borrower hereunder, under any other Loan Document and
under any agreement with the Administrative Agent or SunTrust
Equitable Securities Corporation, as Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
32
(i) a counterpart of this Agreement signed
by or on behalf of each party thereto or written
evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature
page of this Agreement) that such party has signed a
counterpart of this Agreement;
(ii) duly executed Notes payable to each
Lender;
(iii) an executed Subsidiary Guarantee
Agreement;
(iv) a certificate of the Secretary or
Assistant Secretary of Borrower, attaching and
certifying copies of its bylaws and of the resolutions
of its boards of directors, authorizing the execution,
delivery and performance of the Loan Documents to which
it is a party;
(v) certified copies of the articles of
incorporation of Borrower, together with certificates of
good standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation
of each Loan Party;
(vi) a favorable written opinion of general
counsel to the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, and
covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein
as the Administrative Agent or the Required Lenders
shall reasonably request; and
(vii) a duly executed funds disbursement
agreement.
SECTION 3.2 EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect
to such Borrowing or the issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, no Default or Event of
Default shall exist; and
(b) all representations and warranties of each Loan
Party set forth in the Loan Documents shall be true and correct in
all material respects on and as of the date of such Borrowing or the
date of issuance, amendment, extension or renewal of such Letter of
Credit, in each case before and after giving effect thereto; and
(c) since the date of the most recent financial
statements of the Borrower described in Section 5.1(a), there shall
have been no change which has had or could reasonably be expected to
have a Material Adverse Effect.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
SECTION 3.3 DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
33
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1 EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.2 ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational action. This Agreement has been duly
executed and delivered by the Borrower, and constitutes, and each other Loan
Document to which any Loan Party is a party, when executed and delivered by such
Loan Party, will constitute, valid and binding obligations of the Borrower or
such Loan Party (as the case may be), enforceable against it in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect or where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(b) will not violate any material provision of any applicable law or regulation
or the charter, by-laws or other organizational documents of the Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a material default under any indenture, material agreement
or other material instrument binding on the Borrower or any of its Subsidiaries
or any of its assets or give rise to a right thereunder to require any payment
to be made by the Borrower or any of its Subsidiaries and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries, except Liens (if any) created under the Loan Documents.
SECTION 4.4 FINANCIAL STATEMENTS. The Borrower has furnished to the
Administrative Agent and the Lenders (i) the audited consolidated balance sheet
of the Borrower and its Subsidiaries as of December 26, 2000 and the related
consolidated statements of income, shareholders' equity and cash flows for the
fiscal year then ended prepared by Ernst & Young, LLP and (ii) the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of March 20,
2001, and the related unaudited consolidated statements of income and cash flows
for the fiscal quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present the consolidated
34
financial condition of the Borrower and its Subsidiaries as of such dates and
the consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since
December 26, 2000, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect.
SECTION 4.5 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or
before any arbitrators or Governmental Authorities is pending
against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that
could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) which in any manner
draws into question the validity or enforceability of this Agreement
or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5,
neither the Borrower nor any of its Subsidiaries (i) has failed to
comply in any material respect with any Environmental Law or to
obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) has become
subject to any material Environmental Liability or (iii) has
received notice of any claim with respect to any material
Environmental Liability.
SECTION 4.6 COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations and orders of any Governmental Authority, and (b) all indentures,
agreements or other instruments binding upon it or its properties, except where
non-compliance with the provisions of 4.6 (a) or (b), either singly or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.7 INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company", as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, (b)
a "holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) otherwise subject to any
other regulatory scheme limiting its ability to incur debt.
SECTION 4.8 TAXES. The Borrower and its Subsidiaries have timely
filed or caused to be filed all Federal income tax returns and all other
material tax returns that are required to be filed by them, and have paid all
taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves.
SECTION 4.9 MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
35
SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$1,000,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $1,000,000 the fair market value of the assets of
all such underfunded Plans.
SECTION 4.11 OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or
is licensed, or otherwise has the right, to use, all patents,
trademarks, service marks, tradenames, copyrights and other
intellectual property material to its business, and the use thereof
by the Borrower and its Subsidiaries does not, to its knowledge,
infringe on the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not have
a Material Adverse Effect.
SECTION 4.12 DISCLOSURE. To the best of its knowledge, the Borrower
has disclosed to the Administrative Agent and the Lenders, all material
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading.
SECTION 4.13 LABOR RELATIONS. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against the Borrower
or any of its Subsidiaries, and no significant unfair labor practice, charges or
grievances are pending against the Borrower or any of its Subsidiaries, or to
the Borrower's knowledge, threatened against any of them before any Governmental
Authority.
SECTION 4.14 SUBSIDIARIES. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and
the type of, each Subsidiary and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Closing Date.
36
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
SECTION 5.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower, a copy of the annual
audited report for such fiscal year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, stockholders' equity
and cash flows (together with all footnotes thereto) of the Borrower
and its Subsidiaries for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year,
all in reasonable detail and reported on by independent public
accountants of nationally recognized standing to the effect that
such financial statements present fairly in all material respects
the financial condition and the results of operations of the
Borrower and its Subsidiaries for such fiscal year on a consolidated
basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards;
(b) as soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, an unaudited consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such fiscal
quarter and the related unaudited consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such periods
which are required to be included in the Borrower's quarterly report
in Form 10-Q, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion
of Borrower's previous fiscal year, all certified by the chief
financial officer or treasurer of the Borrower as presenting fairly
in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a certificate
of a Responsible Officer, (i) certifying as to whether there exists
a Default or Event of Default on the date of such certificate, and
if a Default or an Event of Default then exists, specifying the
details thereof and the action which the Borrower has taken or
proposes to take with respect thereto, (ii) setting forth in
reasonable detail calculations demonstrating compliance with Article
VI and (iii) stating whether any change in GAAP or the application
thereof has occurred since the date of the Borrower's audited
financial statements referred to in Section 4.4 and, if any change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with the delivery of the financial
statements referred to in clause (a) above, a certificate of the
accounting firm that reported on such financial statements stating
37
whether they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event of
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other
materials filed with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all functions of said
Commission, or with any national securities exchange, or distributed
by the Borrower to its shareholders generally, as the case may be;
and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs
and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.2 NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or, to the knowledge of the Borrower, affecting the Borrower
or any Subsidiary which, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development
by which the Borrower or any of its Subsidiaries (i) fails to comply
with any material provision of any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, or (iii) receives notice of any claim with
respect to any Environmental Liability, and in each of the preceding
clauses, which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding $250,000; and
(e) any other event that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3 EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to preserve, renew and maintain (as
applicable) in full force and effect its legal existence and its respective
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business and will
continue to engage in substantially the same primary business as presently
conducted or such other businesses that are reasonably related thereto;
38
provided, that nothing in this Section shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3.
SECTION 5.4 COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all material laws, rules,
regulations and requirements of any Governmental Authority applicable to its
properties, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5 PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6 BOOKS AND RECORDS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7 VISITATION, INSPECTION, ETC. The Borrower will, and will
cause each of its Subsidiaries to, permit any representative of the
Administrative Agent and each Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent (or a Lender) may reasonably request
after reasonable prior notice to the Borrower. Such visitation and examination
shall be solely for purposes of evaluating this credit facility and subject to
the confidentiality requirements of applicable law.
SECTION 5.8 MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
SECTION 5.9 [INTENTIONALLY OMITTED].
SECTION 5.10 USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower
will use the proceeds of all Loans to finance working capital needs, capital
expenditures, the repurchase of the common stock of Borrower and for other
general corporate purposes of the Borrower and its Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
39
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1 LEVERAGE RATIO. The Borrower will have, as of the end of
each fiscal quarter (calculated for such quarter and the three prior fiscal
quarters) of the Borrower, commencing with the fiscal quarter ending September
30, 2001, a Leverage Ratio of not greater than 1.75 to 1.00.
SECTION 6.2 FIXED CHARGE COVERAGE RATIO. The Borrower will have, as
of the end of each fiscal quarter (calculated for such quarter and the three
prior fiscal quarters) of the Borrower, commencing with the fiscal quarter
ending September 30, 2001, a Fixed Charge Coverage Ratio of not less than 1.50
to 1.00.
SECTION 6.3 CONSOLIDATED NET WORTH. The Borrower will not permit its
Consolidated Net Worth at any time to be less than $375,000,000 PLUS 50% of
Consolidated Net Income on a cumulative basis, commencing with the fiscal
quarter ending September 30, 2001; provided, that if Consolidated Net Income is
negative in any fiscal quarter the amount added for such fiscal quarter shall be
zero and such negative Consolidated Net Income shall not reduce the amount of
Consolidated Net Income added from any previous fiscal quarter. The amount of
Consolidated Net Worth set forth above shall be increased by 75% of the amount
by which the Borrower's "total stockholders' equity" is increased as a result of
any public or private offering of common stock of the Borrower after the Closing
Date and increased by any non-cash charges related to Borrower's currently
outstanding common stock options. Promptly upon the consummation of such
offering, the Borrower shall notify the Administrative Agent in writing of the
amount of such increase in "total stockholders' equity." The amount of
Consolidated Net Worth set forth therein shall be reduced by the value of common
shares repurchased by the Borrower subsequent to the Closing Date.
SECTION 6.4 MINIMUM PROFITABILITY. The Consolidated Net Income of
Borrower and its Subsidiaries for each fiscal quarter of the Borrower,
commencing with the fiscal quarter ending September 30, 2001, shall not be less
than one dollar ($1.00).
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1 INDEBTEDNESS. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
40
(b) Indebtedness existing on the date hereof and set
forth on Schedule 7.1 and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal
amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(c) Indebtedness of the Borrower owing to any Subsidiary
and of any Subsidiary owing to the Borrower or any other Subsidiary;
provided, that any such Indebtedness that is owed to a Subsidiary or
by a Subsidiary shall be a domestic Subsidiary created and existing
under the laws of a state of the United States;
(d) Indebtedness with respect to obligations under
Hedging Agreements permitted by Section 7.10; and
(e) other Indebtedness in an aggregate principal amount
not to exceed $10,000,000 at any time outstanding.
SECTION 7.2 NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Liens created in favor of the Administrative Agent
for the benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) Any Liens on any property or asset of the Borrower
or any Subsidiary existing on the Closing Date set forth on Schedule
7.2; provided, that such Lien shall not apply to any other property
or asset of the Borrower or any Subsidiary; and
(d) Liens on assets which in the aggregate do not exceed
in book value Ten Million Dollars ($10,000,000);
(e) extensions, renewals, or replacements of any Lien
referred to in paragraphs (a) through (d) of this Section; provided,
that the principal amount of the Indebtedness secured thereby is not
increased and that any such extension, renewal or replacement is
limited to the assets originally encumbered thereby.
SECTION 7.3 FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate into any other Person, or
permit any other Person to merge into or consolidate with it, or
sell, lease, transfer or otherwise dispose of (in a single
transaction or a series of transactions) all or substantially all of
its assets (in each case, whether now owned or hereafter acquired)
or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired) or liquidate
or dissolve; provided, that if at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing (i) the Borrower or any Subsidiary
may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person,
(ii) any Subsidiary may merge into another Subsidiary; provided,
that if any party to such merger is a Subsidiary Loan Party, the
41
Subsidiary Loan Party shall be the surviving Person, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Subsidiary
Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan
Party) may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests
of the Borrower and is not materially disadvantageous to the
Lenders; provided, that any such merger involving a Person that is
not a wholly-owned Subsidiary immediately prior to such merger shall
not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of
its Subsidiaries to, engage to any material extent in any primary
business other than businesses substantially of the type conducted
by the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
SECTION 7.4 INVESTMENTS, LOANS, ETC. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"INVESTMENTS"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
except:
(a) Investments (other than Permitted Investments)
existing on the date hereof and set forth on Schedule 7.4 (including
Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by
Section 7.1;
(d) Investments made by the Borrower in or to any
Subsidiary and by any Subsidiary to the Borrower or in or to another
Subsidiary;
(e) loans or advances to employees, officers or
directors of the Borrower or any Subsidiary in the ordinary course
of business for travel, relocation and related expenses;
(f) Hedging Agreements permitted by Section 7.10;
(g) Other Investments which in the aggregate do not
exceed $7,000,000 in any fiscal year of the Borrower; and
(h) Investments made pursuant to deferred compensation
plans.
SECTION 7.5 RESTRICTED PAYMENTS. The Borrower will not,
and will not permit its Subsidiaries to, declare or make, or agree
to pay or make, directly or indirectly, any dividend on any class of
its stock, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption,
retirement, defeasance or other acquisition of, any shares of common
stock or Indebtedness subordinated to the Obligations of the
Borrower or any options, warrants, or other rights to purchase such
common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "RESTRICTED PAYMENT"), except for (i) regular
42
dividends payable by the Borrower with respect to its common stock
or dividends payable by Borrower in shares of any class of its
common stock, (ii) repurchase of common stock pursuant to the
existing stock option plan of Borrower; (iii) Restricted Payments
made by any Subsidiary to the Borrower or to another Subsidiary
which is a Subsidiary Loan Party and (iv) cash dividends paid on,
and cash redemptions of, the common stock of the Borrower; provided,
that (i) no Default or Event of Default has occurred and is
continuing at the time such dividend is paid or redemption is made,
and (ii) the aggregate amount of all such Restricted Payments made
by the Borrower in any four consecutive fiscal quarters does not
exceed 50% of Consolidated Net Income (if greater than $0) earned
during the immediately preceding four fiscal quarters.
SECTION 7.6 SALE OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's common stock to any Person other than the Borrower
or any wholly-owned Subsidiary of the Borrower or a Subsidiary Loan Party (or to
qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value
of obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in
the ordinary course of business; and
(c) the sale or other disposition of such assets in an
aggregate amount not to exceed $10,000,000 in any fiscal year of the
Borrower.
SECTION 7.7 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
SECTION 7.8 RESTRICTIVE AGREEMENTS. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law, or by
this Agreement or any other Loan Document or under an existing revolving credit
loan agreement with InTrust Bank, N.A., (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
43
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases and other contracts entered into in the ordinary
course of business.
SECTION 7.9 SALE AND LEASEBACK TRANSACTIONS. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred.
SECTION 7.10 HEDGING AGREEMENTS. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
(a) Hedging Agreements entered into in the ordinary course of business to hedge
or mitigate risks to which the Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities and which do not
exceed in the aggregate Ten Million Dollars ($10,000,000). Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
SECTION 7.11 AMENDMENT TO MATERIAL DOCUMENTS. The Borrower will not
permit any Subsidiary to, amend, modify or waive any of its rights in a manner
materially adverse to the Lenders under its certificate of incorporation, bylaws
or other organizational documents.
SECTION 7.12 [INTENTIONALLY OMITTED].
SECTION 7.13 ACCOUNTING CHANGES. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Borrower or of any Subsidiary, except to change the fiscal year of a
Subsidiary to conform its fiscal year to that of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any
Loan or of any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or
otherwise; or
(b) the Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount payable
under clause (a) of this Article) payable under this Agreement or
any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of
three (3) Business Days; or
44
(c) any representation or warranty made by the Borrower
or any Subsidiary in this Agreement or any other Loan Document
(including the Schedules attached thereto) and any amendments or
modifications hereof or waivers hereunder, or in any certificate or
financial statement submitted to the Administrative Agent or the
Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan
Document is incorrect in any material respect when made or deemed
made or submitted; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.2, 5.3 (with respect
to the Borrower's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
referred to in clauses (a), (b) and (d) above), and such failure
shall remain unremedied for 30 days after the earlier of (i) any
officer of the Borrower becomes aware of such failure, or (ii)
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary
obligor or as guarantor or other surety) shall fail to pay any
principal of or premium or interest on any Material Indebtedness
that is outstanding, when and as the same shall become due and
payable (whether at scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the
agreement or instrument evidencing such Indebtedness; or any other
event shall occur or condition shall exist under any agreement or
instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due
and payable; or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state
or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a custodian,
trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section,
(iii) apply for or consent to the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any such Subsidiary Loan Party or for a substantial part
of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, or (vi)
take any action for the purpose of effecting any of the foregoing;
or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets,
under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or (ii) the appointment of a
45
custodian, trustee, receiver, liquidator or other similar official
for the Borrower or any Subsidiary Loan Party or for a substantial
part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered; or
(i) the Borrower or any Subsidiary Loan Party shall
become unable to pay, shall admit in writing its inability to pay,
or shall fail to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with other
ERISA Events that have occurred, could reasonably be expected to
result in liability to the Borrower and the Subsidiaries in an
aggregate amount exceeding $1,000,000; or
(k) any judgment or order for the payment of money in
excess of $1,000,000 in the aggregate shall be rendered against the
Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be a period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be
expected to have a Material Adverse Effect, and there shall be a
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(m) a Change in Control shall occur; or
(n) any provision of any Subsidiary Guarantee Agreement
shall for any reason cease to be enforceable against, any Subsidiary
Loan Party, or any Subsidiary Loan Party shall so state in writing,
or any Subsidiary Loan Party shall seek to terminate its Subsidiary
Guarantee Agreement; or
(o) either ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇ cease to be
officers of the Borrower or actively involved in the management of
Borrower;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
46
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required
Lenders to act for the Issuing Bank with respect thereto; provided,
that the Issuing Bank shall have all the benefits and immunities (i)
provided to the Administrative Agent in this Article IX with respect
to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be
issued by it and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as the term
"Administrative Agent" as used in this Article IX included the
Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2 NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
47
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
SECTION 9.3 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
48
SECTION 9.7 SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent, subject to the approval by
the Borrower provided that no Default or Event of Default shall
exist at such time. If no successor Administrative Agent shall have
been so appointed, and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf
of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a
combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and
the other Loan Documents. If within 45 days after written notice is
given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been
appointed and shall have accepted such appointment, then on such
45th day (i) the retiring Administrative Agent's resignation shall
become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter
perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a
successor Administrative Agent as provided above. After any retiring
Administrative Agent's resignation hereunder, the provisions of this
Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect
of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 NOTICES.
(a) Except in the case of notices and other
communications expressly permitted to be given by telephone, all
notices and other communications to any party herein to be effective
shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower:
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
49
With a copy to: SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
50
To the Swingline Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All such notices and other communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon
the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Issuing Bank or the Swingline Bank shall
not be effective until actually received by such Person at its
address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile
is solely for the convenience and at the request of the Borrower.
The Administrative Agent and the Lenders shall be entitled to rely
on the authority of any Person purporting to be a Person authorized
by the Borrower to give such notice and the Administrative Agent and
Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to
any extent by any failure of the Administrative Agent and the
Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Administrative Agent and the
Lenders of a confirmation which is at variance with the terms
understood by the Administrative Agent and the Lenders to be
contained in any such telephonic or facsimile notice.
SECTION 10.2 WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power
hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent or any Lender,
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any
other or further exercise thereof or the exercise of any other right
or power hereunder or thereunder. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive
of any rights or remedies provided by law. No waiver of any
provision of this Agreement or any other Loan Document or consent to
any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a
Loan or the issuance of a Letter of Credit shall not be construed as
a waiver of any Default or Event of Default, regardless of whether
51
the Administrative Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default or Event of Default at the
time.
(b) No amendment or waiver of any provision of this
Agreement or the other Loan Documents, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Borrower and the
Required Lenders or the Borrower and the Administrative Agent with
the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or
waiver shall: (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv)
change Section 2.21 (b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby , without the written
consent of each Lender, (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement; (vii)
release all or substantially all collateral (if any) securing any of
the Obligations provided further, that no such agreement shall
amend, modify or otherwise affect the rights, duties or obligations
of the Administrative Agent, the Swingline Bank or the Issuing Bank
without the prior written consent of such Person. No amendment which
adversely affects Borrower shall be entered into without Borrower's
written consent.
SECTION 10.3 EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable,
out-of-pocket costs and expenses of the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and its Affiliates, in
connection with the syndication of the credit facilities provided
for herein, the preparation and administration of the Loan Documents
and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan
Document shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket costs
and expenses (including, without limitation, the reasonable fees,
charges and disbursements of outside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection
with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in
connection with the Loans made or any Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit.
(b) The Borrower shall indemnify the Administrative
Agent, the Issuing Bank and each Lender, and each Related Party of
any of the foregoing (each, an "INDEMNITEE") against, and hold each
52
of them harmless from, any and all costs, losses, liabilities,
claims, damages and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, arising
out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any Loan Document, the performance by
the parties hereto of their respective obligations hereunder or any
Loan Document, (ii) any Loan or Letter of Credit or any actual use
of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual
release of Hazardous Materials on or from any property owned by the
Borrower or any Subsidiary or any Environmental Liability incurred
by the Borrower or any Subsidiary or (iv) any actual claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided,
that the Borrower shall not be obligated to indemnify any Indemnitee
for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative
Agent and each of the Lenders harmless from and against, any and all
present and future stamp, documentary, and other similar taxes with
respect to this Agreement and any other Loan Documents, any
collateral that may be granted by Borrower or a Subsidiary, or any
payments due thereunder, and save the Administrative Agent and each
Lender harmless from and against any and all liabilities with
respect to or resulting from any delay or omission to pay such
taxes.
(d) To the extent that the Borrower fails to pay any
amount required to be paid to the Administrative Agent, the Issuing
Bank or the Swingline Lender under clauses (a), (b) or (c) hereof,
each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such
Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided, that the unreimbursed expense or indemnified
payment, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative
Agent, the Issuing Bank or the Swingline Lender in its capacity as
such.
(e) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit
or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.4 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights hereunder without the prior
53
written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and
void).
(b) Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion
of its Commitment and the Loans and LC Exposure at the time owing to
it); provided, that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a
portion of a Commitment or any Lender's obligations in respect of
its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent (which
consent shall not be unreasonably withheld or delayed), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire amount of the assigning Lender's
Commitment hereunder or an assignment while an Event of Default has
occurred and is continuing, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 (unless the Borrower and the Administrative
Agent shall otherwise consent), (iii) each partial assignment shall
be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement and
the other Loan Documents, (iv) the assigning Lender and the assignee
shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee
payable by the assigning Lender or the assignee (as determined
between such Persons) in an amount equal to $3,500 and (v) such
assignee, if it is not a Lender, shall deliver a duly completed
Administrative Questionnaire to the Administrative Agent; provided,
that any consent of the Borrower otherwise required hereunder shall
not be required if an Event of Default has occurred and is
continuing. Upon the execution and delivery of the Assignment and
Acceptance and payment by such assignee to the assigning Lender of
an amount equal to the purchase price agreed between such Persons,
such assignee shall become a party to this Agreement and any other
Loan Documents to which such assigning Lender is a party and, to the
extent of such interest assigned by such Assignment and Acceptance,
shall have the rights and obligations of a Lender under this
Agreement, and the assigning Lender shall be released from its
obligations hereunder to a corresponding extent (and, in the case of
an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.18, 2.19 and 2.20 and 10.3. Upon the
consummation of any such assignment hereunder, the assigning Lender,
the Administrative Agent and the Borrower shall make appropriate
arrangements to have new Notes issued if so requested by either or
both the assigning Lender or the assignee. Any assignment or other
transfer by a Lender that does not fully comply with the terms of
this clause (b) shall be treated for purposes of this Agreement as a
sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of
the Borrower, the Administrative Agent, the Issuing Bank or the
Swingline Lender, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a
portion of its Commitment, the Loans owing to it and its LC
Exposure); provided, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance
of its obligations hereunder, and (iii) the Borrower, the
Administrative Agent, the Swingline Bank, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such
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Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. Any agreement between
such Lender and the Participant with respect to such participation
shall provide that such Lender shall retain the sole right and
responsibility to enforce this Agreement and the other Loan
Documents and the right to approve any amendment, modification or
waiver of this Agreement and the other Loan Documents; provided,
that such participation agreement may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver of this Agreement described in the first
proviso of Section 10.2(b) that affects the Participant. The
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it
were a Lender hereunder and had acquired its interest by assignment
pursuant to paragraph (b); provided, that no Participant shall be
entitled to receive any greater payment under Section 2.18 or 2.20
than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant unless the
sale of such participation is made with the Borrower's prior written
consent. To the extent permitted by law, the Borrower agrees that
each Participant shall be entitled to the benefits of Section 2.21
as though it were a Lender, provided, that such Participant agrees
to share with the Lenders the proceeds thereof in accordance with
Section 2.21 as fully as if it were a Lender hereunder. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.20 unless the Borrower
is notified of such participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.20(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement and its Notes (if any) to secure its obligations to a
Federal Reserve Bank without complying with this Section; provided,
that no such pledge or assignment shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPV"), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or any
part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by
any SPV to make any Loan and (ii) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of any
Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof and otherwise comply with its
obligation hereunder. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent,
and as if such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity
or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of
the foregoing, each Lender hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any
SPV, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State contrary in this Section 10.4, any
SPV may (i) with notice to, but without the prior written consent
of, the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in
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any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of
such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating
to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement
to such SPV. As this Section 10.4(g) applies to any particular SPV,
this Section may not be amended without the written consent of such
SPV.
SECTION 10.5 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the
State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive
jurisdiction of the United States District Court of for the Northern
District of Georgia, and any state Court of the State of Georgia
located in ▇▇▇▇▇▇ County and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in such Georgia state
court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives
any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in
paragraph (b) of this Section. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
the service of process in the manner provided for notices in Section
10.1. Nothing in this Agreement or in any other Loan Document will
affect the right of any party hereto to serve process in any other
manner permitted by law.
SECTION 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
56
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 10.8 COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9 SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.19, 2.20, 2.21, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10 SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
57
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11 CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent required by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (ix) subject to provisions substantially similar to this Section 10.11, to
any actual or prospective assignee or Participant, or (vi) with the consent of
the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such information as such Person would
reasonably accord its own confidential information.
SECTION 10.12 INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
LONE STAR STEAKHOUSE & SALOON, INC.
By: /s/
--------------------------------------
Name:
Title:
SUNTRUST BANK
as Administrative Agent, as Issuing Bank,
as a Lender
By: /s/
--------------------------------------
Name:
Title:
Revolving Commitment: $30,000,000
LC Commitment: $10,000,000
Swingline Commitment: $0
59
INTRUST BANK, N.A., as Lender
By: /s/
-------------------------------------
Name:
Title:
Revolving Commitment: $20,000,000
60